On November 27, 2019, a three-judge appellate panel decided the Monmouth County case of State v. Saad. The principal issue was whether the trial court was justified in amending the indicted second-degree endangering the welfare of a child charge to a third degree because the defendant did not have a legal duty to care for the alleged victim.
The Appellate Division held in relevant part as follows: In light of the holding in Galloway, we are constrained to agree with the trial court’s determination the State has not made a prima facie showing defendant’s relationship with his victims satisfied the legal duty or assumption of responsibility element of second-degree endangering the welfare of a child. Defendant did not have a long-term professional relationship with the victims. He was a surgical specialist to whom the victims were referred for discrete treatment of acute medical conditions. He did not have regular, frequent, or continuous interactions with the victims. His treatments of the victims were limited in duration and frequency. Defendant did not engender trust with his victims on any subject beyond medical care.
Defendant’s relationship to the victims was solely that of their physician. While he had a professional obligation to provide appropriate medical treatment to his patients, an obligation he utterly violated if the State’s allegations are proven true, defendant did not assume a general and ongoing responsibility for their care within the meaning of N.J.S.A. 2C:24-4(a)(1), as that statute has been interpreted by our courts.
We reject the State’s argument that by virtue of his position as a licensed physician defendant had a legal duty for the care of his patients within the meaning of N.J.S.A. 2C:24-4(a)(1), regardless of the duration and extent of his contacts with his patients. In support of its argument, the State relies on N.J.A.C. 13:35-6.3(c), which prohibits a physician from “engaging in sexual contact with a patient with whom he or she has a patient-physician relationship.” The regulation provides, however, that violation of its provisions “shall be deemed to constitute gross or repeated malpractice pursuant to N.J.S.A. 45:1-21(c) or (d) or professional misconduct pursuant to N.J.S.A. 45:1-21(e) . . . .” N.J.A.C. 13:35-6.3(j). The statutory provisions cited in the regulation authorize BME to suspend or revoke a license to practice medicine, but do not subject a physician to criminal sanctions.
The difference between a second-degree charge and a third degree is significant. Second degree charges carry a presumption of prison upon conviction. Third degree charges typically call for a diversionary program or probation if the offender has no prior record.