Unlicensed Practice of Medicine (Part 2)

by | Oct 18, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Appellate Division continued in relevant part: We recognize that the absence of instructions did not directly impact the charge that Rodriguez held herself “out to the public or any person as being eligible to engage” in the practice of medicine under N.J.S.A. 2C:21-20(c). And there was “some evidence” upon which the grand jury could rely in charging an offense under subsection (c) – including the evidence of Rodriguez’s Facebook post depicting her clad in a lab coat and stethoscope and referring to her “patients,” and the statements from a patient and Dr. Ferraro that she used the “Dr.” title, notwithstanding her explanations to the contrary. See Campione, (stating that, to survive a motion to dismiss an indictment, it was enough for the State to produce “some evidence” that physician’s assistant “presented himself as a physician to patients by referring to himself as a medical doctor”); cf. N.J.S.A. 45:9-18 (stating, for purposes of N.J.S.A. 45:9, that a “person shall be regarded as practicing medicine” if the persons uses “‘Dr.’ . . . and who, in connection with such title . . . holds herself out as being able to diagnose, treat, operate or prescribe”).

However, the grand jury did not indict Rodriguez in a separate count under subsection (c). Rather, the grand jury indicted Rodriguez in a single count, alleging she “did engage in that practice of medicine or did hold herself out to the public or any person as being eligible to engage in that practice.” (Emphasis added). But “separate and distinct offenses cannot be charged in the same count of an indictment.” State v. N.J. Trade Waste Ass’n (1984).

The reason that separate and distinct offenses can not be charged in the same count of an indictment is because a conviction requires jury unanimity. If some jurors found beyond a reasonable doubt that one of the offenses contained within a count and the other jurors found a separate offense within that count was committed beyond a reasonable doubt, there is no unanimity.