Anonymous v. Office of Professional Medical Conduct

194 Misc. 2d 433, 755 N.Y.S.2d 551, 2002 N.Y. Misc. LEXIS 1702
CourtNew York Supreme Court
DecidedNovember 4, 2002
StatusPublished
Cited by1 cases

This text of 194 Misc. 2d 433 (Anonymous v. Office of Professional Medical Conduct) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anonymous v. Office of Professional Medical Conduct, 194 Misc. 2d 433, 755 N.Y.S.2d 551, 2002 N.Y. Misc. LEXIS 1702 (N.Y. Super. Ct. 2002).

Opinion

OPINION OF THE COURT

Kibbie F. Payne, J.

This is a CPLR article 78 proceeding wherein petitioner [434]*434seeks a judgment determining that respondent Office of Professional Medical Conduct, State Board for Professional Medical Conduct of the New York State Department of Health’s (hereinafter respondent) determination to publish, on the Department of Health’s (DOH) official Internet Web site, certain statement of charges dated October 25, 1999 and determination and order dated May 2, 2000, issued in connection with petitioner’s disciplinary proceeding, to be violative of lawful procedure, arbitrary and capricious and an abuse of discretion (CPLR 7803 [3]). Additionally, petitioner seeks an order directing respondent to withdraw such information from its Web site and an award of attorneys’ fees. The petitioner in this case is a physician, who is duly licensed to practice medicine in the State of New York and who has been granted leave by Justice Lucindo Suarez to proceed by a fictitious name.

The respondent is the statutorily authorized disciplinary body charged with handling complaints of medical misconduct in New York State (Public Health Law § 230 [7]; Education Law § 6510). On October 25, 1999, respondent served its “statement of charges” on petitioner alleging five factual specifications of professional misconduct arising out of petitioner’s treatment of a female patient. Petitioner denied all of the charges and a hearing ensued before the hearing committee of the respondent Office of Professional Medical Conduct. The hearing concluded with the dismissal of four of the five specified charges. The remaining specified charge of professional misconduct which was sustained by the committee was the charge that petitioner had failed to maintain a record in connection with the issuance of a prescription for medication to the patient. As a result, respondent imposed a penalty of reprimand (Public Health Law § 230-a [1]) for this one-time technical violation. Subsequent to its final determination, respondent, in accordance with its standard practice, published the statement of charges and determination and order on its Internet Web site. Petitioner, in two written letters dated February 14, 2002 and April 5, 2002, demanded that respondent withdraw the information from its Web site and refrain from making such information public. Petitioner argues that professional disciplinary proceedings are confidential pursuant to Public Health Law § 230 (9) and (10) (a) (v) and that respondent’s publication of all of the charges, including the four charges that were not sustained, is violative of the statutorily mandated confidentiality of the proceeding and impermissibly [435]*435subjects his professional reputation to irreparable harm. Petitioner also contends that the confidentiality of the proceedings is intended to forbid the release of information pertaining to disciplinary proceedings even upon final determination, where, as here, all but one of the accusations were determined to be unsubstantiated and only a technical violation was found. Alternatively, petitioner requests that if the court should agree with respondent’s construction of Public Health Law § 230 (10) (g), then, in that event, petitioner asks this court to convert this proceeding (CPLR 103) into one for declaratory relief and proceed to declare the subject statute unconstitutional under the Equal Protection Clause of the United States Constitution.

Respondent, on the other hand, maintains its policy is in compliance with Public Health Law § 230 (10) (g), which authorizes public dissemination of the statement of charges and determination and order once the disciplinary proceedings are finally determined. Respondent asserts that its practice of releasing the disciplinary action taken is in accord with the underlying statutory intent and its policy serves to protect the public by disseminating information concerning unprofessional and dangerous physician conduct. Thus, respondent asserts that its action in providing public access to the final results of any disciplinary hearing is neither arbitrary nor capricious and, therefore, entitled to deference by the court.

A look at the controlling statute and a brief summary of DOH’s policy in implementing it is appropriate to a decision in this case. The statute Public Health Law § 230 (10) (g) expressly reads as follows:

“Results of hearing. The committee shall make (1) findings of fact, (2) conclusions concerning the charges sustained or dismissed, and (3) a determination regarding charges sustained or dismissed, and in the event any of the charges have been sustained, of the penalty to be imposed or appropriate action to be taken and the reasons for the determination. For the committee to make a conclusion sustaining a charge, or determining a penalty or the appropriate action to be taken, two members of the committee must vote for such a conclusion or determination. The committee shall issue an order based on its determination. The committee’s findings, conclusions, determinations and order shall become public upon issuance in any case in which annulment, suspension without stay or revocation [436]*436of licensee’s license is ordered.” (Emphasis supplied).

Confidential medical disciplinary proceedings had been a long-standing policy until that tradition was reversed by the Department of Health in 1983. Then, in June 1993, the Court of Appeals in Doe v Office of Professional Med. Conduct of N.Y. State Dept, of Health (81 NY2d 1050, 1052) held that “consistent with the general policy that disciplinary proceedings involving licensed professionals remain confidential until finally determined,” and granted the plaintiff physician’s application to prohibit public disclosure of the charges during the then pending disciplinary proceeding. The Court went on to say that this policy not only “serves the purpose of safeguarding information that a potential complainant may regard as private or confidential and thereby removes a possible disincentive to the filing of complaints [but], it also evinces a sensibility to the possibility of irreparable harm to a professional’s reputation resulting from unfounded accusations” (id. at 1052 [internal quotation marks omitted]). Thereafter, Public Health Law § 230 (10) (g) was added (L 1996, ch 627, § 4), mandating that in cases where annulment, suspension or revocation of the licensee’s license is ordered, the committee’s findings, conclusions, determinations and orders become public upon issuance. Contrary to the holding in Doe (supra), the Legislature decided it was important to release upon issuance those disciplinary orders which, because of their seriousness, were seen as vital to protecting the public, notwithstanding that they were not final because of the possibility of an administrative appeal.

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Related

Anonymous v. Bureau of Professional Medical Conduct
309 A.D.2d 44 (Appellate Division of the Supreme Court of New York, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
194 Misc. 2d 433, 755 N.Y.S.2d 551, 2002 N.Y. Misc. LEXIS 1702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anonymous-v-office-of-professional-medical-conduct-nysupct-2002.