Anonymous v. Bureau of Professional Medical Conduct

309 A.D.2d 44, 764 N.Y.S.2d 247, 2003 N.Y. App. Div. LEXIS 9343
CourtAppellate Division of the Supreme Court of the State of New York
DecidedSeptember 11, 2003
StatusPublished
Cited by1 cases

This text of 309 A.D.2d 44 (Anonymous v. Bureau of Professional Medical Conduct) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anonymous v. Bureau of Professional Medical Conduct, 309 A.D.2d 44, 764 N.Y.S.2d 247, 2003 N.Y. App. Div. LEXIS 9343 (N.Y. Ct. App. 2003).

Opinions

OPINION OF THE COURT

Marlow, J.

The issue on this appeal is whether physicians, who have a long-standing right to confidentiality during a medical disciplinary proceeding — in order to assure, inter alia, that unfounded accusations do not jeopardize their reputation — lose the right to that confidentiality after the proceeding concludes with a determination favorable to them.

Petitioner is a general practitioner licensed to practice medicine in the State of New York, with an office in Manhattan. Respondents State Bureau of Professional Medical Conduct and State Board for Professional Medical Conduct are each part of respondent New York State Department of Health (DOH). Pursuant to New York Public Health Law, article 2, title II-A, § 230 et seq. (Professional Medical Misconduct), respondents are the statutorily authorized New York State professional disciplinary agencies with jurisdiction to address allegations of physician misconduct.

In October 1999, respondent State Board for Professional Medical Conduct (hereinafter respondent Board) issued a statement of charges against petitioner stemming from a “social encounter [with a female] not involving the practice of medicine.” Petitioner was alleged, inter alia, to have treated her for a minor condition using a procedure for which he was not certified under state regulations and failed to maintain a medical record for a single prescription on a later occasion. Consequently, respondent Board charged petitioner with a serious form of misconduct in addition to failure to maintain one medical record and practicing medicine beyond its authorized scope.

[46]*46Respondent Board held a hearing before a three-member Hearing Committee (hereinafter Committee) and an Administrative Law Judge in five sessions between December 1999 and February 2000. The Committee found the complainant’s testimony “saturated with inconsistencies and exaggerations.” In addition there were a “number of circumstances testified to by [complainant] that defied logic.” Although the Committee found that petitioner had changed his story “in an apparent attempt to make himself look better,” it nevertheless believed his consistent assertion that “the office encounter was of a social nature and that he did not offer [the female] medical care and that she did not request medical care.”

In its determination and order, the Committee concluded that respondent Department of Health failed to sustain all but one charge. Specifically, the Committee found that the Department of Health had failed to prove that petitioner committed any serious forms of misconduct whatsoever and, further, that respondent Department of Health failed to prove that petitioner practiced medicine beyond the scope permitted by law. However, the Committee did find that complainant asked petitioner to give her a prescription for a minor problem which he filled with an appropriate medication. Since issuing a prescription connotes medical treatment, the Committee concluded that “a medical record should [have been] maintained.”

In deciding an appropriate penalty, the Committee was mindful that the only allegation sustained against petitioner was the failure to maintain a proper medical record for one prescription for one patient. The Committee also recognized that issuing a prescription to social acquaintances or as a personal favor “is a practice which occurs probably too frequently, but is nevertheless a technical violation of proper standards of practice.” Further, the Committee was aware that the failure to keep a medical record in this particular instance “did not involve a matter of quality of the medical record or quality of care, but was a one time technical violation.” Consequently, the Committee believed an administrative warning was an appropriate penalty under these circumstances. However, the Administrative Law Judge advised the Committee that an administrative warning was not a statutorily authorized outcome. The Committee was thus constrained to impose a reprimand as the penalty for the single sustained charge of professional misconduct based on the failure to maintain a medical record (see Public Health Law § 230 [10] [m] [i]; § 230-a; Education Law § 6530 [32]).

[47]*47Thereafter, respondent State Bureau of Professional Medical Conduct (hereinafter respondent Bureau), in accordance with its policy to publish on its official Web site all disciplinary orders rendered against physicians once they are final (that is, after the administrative appeal process has been exhausted), published on its Web site the full text of both the statement of charges and the determination and order. This publication fully recited the underlying factual allegations and specifications of charges, even those not sustained against petitioner.

Petitioner requested respondent Bureau to remove all references to the determination and order and the related notice of hearing and statement of charges.1 Specifically, petitioner noted that the “posting of allegations of [serious misconduct] * * * which were never proven is extremely damaging to his professional and personal reputation [and] these odious and unproven allegations should not be a matter of public record.” Respondent Bureau refused to grant petitioner’s request on the ground that “[a] 11 disciplinary orders are public upon final disposition.”

Petitioner then instituted this proceeding pursuant to CPLR article 78 to compel respondent Bureau to withdraw the statement of charges and determination and order from publication on its Web site and keep confidential its records concerning the accusations which were not sustained. Petitioner argued that respondent’s failure to keep these records confidential violates Public Health Law § 230 (10) (g), and that their refusal to withdraw the information from public access is arbitrary and capricious. Alternatively, petitioner challenged the constitutionality of Public Health Law § 230 as applied to him on equal protection grounds.2

Respondents maintained that the Public Health Law requires that the Board keep disciplinary proceedings confidential only until, and regardless of, their final outcome.3 Respondents also claimed they were required to disseminate this information pursuant to the Patient Health Information and Quality [48]*48Improvement Act of 2000 (Public Health Law art 29-D [eff Oct. 6, 2000]).

The Supreme Court denied the petition and dismissed the proceeding, finding that there was nothing in the enactment of Public Health Law § 230 (10) (g) “indicative of a policy to withdraw from public access disciplinary charges and determinations critical to the public’s making of informed decisions in their choice of physicians.” (194 Misc 2d 433, 437 [2002].) In addition, the court found “[no] indication that the Legislature intended to define for DOH, in its implementation of the statute, the content and scope of the information to be included in the physicians’ profile.” (Id. ) Consequently, the court concluded that the construction respondents gave the statute is reasonable and entitled to great weight. Further, the court determined that respondents’ interpretation of the statute was consistent with a general “governmental policy of preserving the confidentiality of information pertaining to disciplinary proceedings until a determination has been reached.” (Id. )

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Related

Anonymous v. Bureau of Professional Medical Conduct
814 N.E.2d 440 (New York Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
309 A.D.2d 44, 764 N.Y.S.2d 247, 2003 N.Y. App. Div. LEXIS 9343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anonymous-v-bureau-of-professional-medical-conduct-nyappdiv-2003.