MATTER OF ORENS v. Novello

783 N.E.2d 492, 99 N.Y.2d 180, 753 N.Y.S.2d 427

• Court: New York Court of Appeals
• Decided: November 14, 2002
• Status: Published

Opinions

OPINION OF THE COURT

Wesley, J.

Section 230 of the Public Health Law establishes a State Board for Professional Medical Conduct (Board). The Board through its committees on professional conduct hears charges of misconduct against physicians, medical residents, physician’s assistants and specialist’s assistants (see Public Health Law § 230 [7]). Each committee is made up of three members of the Board and must include two physicians and one lay member (see Public Health Law § 230 [6]). In each of these misconduct cases, the committee was comprised of two physicians and a physician’s assistant. Respondents argue that because a physician’s assistant is not a “lay member” within the meaning of the statute, each hearing committee was improperly constituted. We disagree and remit the remaining issues raised in each case to the Appellate Division.

Matter of Orens:

Perry Orens, M.D., was charged with 34 specifications of professional misconduct arising from his care and treatment of 10 patients. At a prehearing conference, Orens objected to the composition of the three-member panel. He argued that the panel did not include a “lay member” as required by Public Health Law § 230 (6). The Administrative Law Judge (ALJ) overruled the objection. Following the hearing, the professional conduct committee concluded that the Department of Health sustained its burden of proof and revoked Orens’ license to practice medicine.

Following an administrative review of the committee’s findings, Orens then commenced this CPLR article 78 proceeding in the Appellate Division seeking to annul the determination (see Public Health Law § 230-c [5]). The Court unanimously annulled the determination, granted the petition and remitted the matter to the Board for a new hearing (see Matter of Orens v Novello, 284 AD2d 26 [2001]). The Court rejected the State’s claim that “lay member” includes anyone who is not a licensed physician (id. at 28). It concluded that the Legislature intended to exclude from that definition any person subject to the disciplinary measures of section 230, including physician’s assistants (see id. at 29-30).

Matter of Mayer:

Dr. Paul S. Mayer, a specialist in obstetrics and gynecology, was charged with numerous specifications of professional misconduct. At the outset of the evidentiary hearing before the professional conduct committee, Mayer objected to its three-member composition claiming that the “lay member” could not be a physician’s assistant. The ALJ overruled the objection and ordered the hearing to proceed. At the conclusion of the hearing, the committee sustained nine specifications of misconduct and revoked Mayer’s license.

Mayer then commenced this CPLR article 78 proceeding to annul the determination. The Court unanimously annulled the determination, granted the petition and remitted the matter to the Board for a new determination. The Court held that

“[i]n our view, there is merit to the contention that the Hearing Committee was improperly composed of three medical practitioners whose professions are subject to the Public Health Law § 230 disciplinary process, therefore violating the requirement of Public Health Law § 230 (6) that a Hearing Committee ‘consist of two physicians and one lay member,’ and requiring that we annul the determination and remit for a new hearing” (Matter of Mayer v Novello, 288 AD2d 780, 781 [2001] [citing Orens, 284 AD2d at 28]).

Analysis:

The question before us is one of statutory interpretation. Our analysis begins with the language of the statute. If the terms are clear and unambiguous, “ ‘the court should construe it so as to give effect to the plain meaning of the words used’ ” (Matter of Auerbach v Board of Educ., 86 NY2d 198, 204 [1995] [quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208 (1976)]). Our objective in this regard is “to discern and apply the will of the Legislature, not the court’s own perception of what might be equitable” (Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

In cases where the term at issue does not have a controlling statutory definition, courts should construe the term using its “usual and commonly understood meaning” (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001]). “Lay member” is not defined in section 230, but the dictionary definition does give some assistance. Merriam-Webster’s Collegiate Dictionary defines “layman” as “a person who does not belong to a particular profession or who is not expert in some field” (Merriam-Webster’s Collegiate Dictionary 659 [10th ed 2002]; see also Black’s Law Dictionary 896 [7th ed] [defining “layman” as “(a) person who is not a member of a profession or an expert on a particular subject”]). Here, physician’s assistants are clearly not physicians nor may they be considered to possess the same expertise or training of a physician.

“Only a person licensed or otherwise authorized under [article 131 of the Education Law] shall practice medicine or use the title ‘physician’ ” (Education Law § 6522). To qualify for a physician’s license, an individual must hold a degree of doctor of medicine (or doctor of osteopathy) and meet experience and examination requirements established by the Board of Regents (see Education Law § 6524; see also 8 NYCRR 60.3 [requiring physicians to complete one year of postgraduate hospital training]). Physician’s assistants are licensed under a separate provision of the Education Law (see Education Law art 131-B; §§ 6540-6548). A physician’s assistant’s educational requirements are considerably different from that of a physician (compare Education Law § 6524 with § 6541 [physician’s assistants must have a high school diploma or its equivalent and complete an approved program for physician’s assistants]). Physician’s assistants are able to perform some medical services, but only when they are under the continuous supervision of a physician and only when those services are within the scope of the supervising physician (see Education Law § 6542). Because the statute makes a simple distinction between physicians and lay members, the most logical view of that distinction is between those who are physicians and those who are not.

Our rules of statutory construction reinforce our view that “lay member” includes all nonphysicians. In 1991, the Legislature amended different portions of section 230 to clarify that other health care workers were within the disciplinary reach of the Board.¹ It did so by dropping its jurisdictional reference to physicians in subdivision (7) and utilizing a new and broader term — licensee—which encompasses physicians, medical residents, physician’s assistants and specialist’s assistants (see L 1991, ch 606, § 2, codified at Public Health Law § 230 [7], as amended). However, the Legislature did not amend the statutory references to “physician” or “lay member” in the subdivisions dealing with the composition of its review committees (see Public Health Law § 230 [1], [6]).² Certainly, had the Legislature intended to exclude physician’s assistants from serving on the Board (or one of its review committees) as “lay members,” it could have done so easily by directing that a lay member not be a licensee as defined in the statute. A contemporaneous amendment to another subdivision of the same statute was all that was required. “When different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended” (Matter of Albano v Kirby, 36 NY2d 526, 530 [1975]; see also Rangolan v County of Nassau, 96 NY2d 42, 47 [2001] [“where * * * the Legislature uses different terms in various parts of a statute, courts may reasonably infer that different concepts are intended”]). We think the inference is appropriate here.

Orens and Mayer argue that a different view of the statute is required by its legislative history. In 1975, the Governor proposed to transfer the power of disciplining physicians from the Board of Regents to the Department of Health and the new State Board for Professional Medical Conduct. The original bill required that the Board “consist of not less than twenty physicians licensed in the state for at least five years” (1975 NY Senate-Assembly Bill S 5007, A 6969). Members would be appointed by the Commissioner of Health on recommendations made from specific medical groups (see id.). The legislation was revised after a number of groups expressed opposition to vesting disciplinary power in a board (and its hearing committees) that would be comprised solely of physicians (see NY State Educ Dept News, Nyquist Opposes Transfer of Medical Profession Discipline, Apr. 15, 1975, Bill Jacket, L 1975, ch 109; NY State Educ Dept News, State Board for Medicine Releases Statement on Malpractice, Apr. 15, 1975, at 3, Bill Jacket, L 1975, ch 109). The composition of the Board and its hearing committees was altered to include physicians and lay members (see L 1975, ch 109, § 28, as amended). Although the statute has been amended a number of times since 1975, the distinction between physicians and lay members remains.³

Orens and Mayer and the Appellate Division come to different conclusions as to the Legislature’s intent and the meaning of “lay member.”⁴ The doctors argue that the compromise legislation attempted to implement a policy that would ensure that the disciplinary board was comprised of some members not involved in medical services. They reason that the Legislature wanted consumers to be involved in reviewing and administering disciplinary measures. In their view, anyone involved in the medical services community (registered nurses, licensed practical nurses, etc.) should not be eligible to serve on the Board and its committees. The Appellate Division, on the other hand, took the view that the Legislature wanted to ensure that those being disciplined were “not judged exclusively by members of the same profession” (Orens, 284 AD2d at 30). The Court seems to have concluded that “profession” for the purposes of its analysis included those health care providers subject to the disciplinary powers of the Board. Thus, a lay member could not be a physician’s assistant.

Each interpretation of the statute attempts to divine the policy choice the Legislature intended by enacting the compromise legislation; each is reasonable. But each view overlooks corresponding terms of other statutory provisions that would accomplish their respective interpretation but for the Legislature’s failure to use those terms here while specifically employing them elsewhere. For instance, as we have already noted, the Appellate Division’s view of the statute could have been accomplished in 1991 by redefining lay member as anyone that was not a “licensee” under the statute.

The position pressed by Orens and Mayer — that the statute envisions the appointment of consumers to serve as lay members — could have been adopted by the Legislature. Notably, the Education Law provides that the Board of Regents must appoint at least one “public representative” to every professional licensing board (see Education Law § 6508 [1]). A “public representative” is defined as “a person who is a consumer of services provided by those licensed or otherwise supervised or regulated by the boards created hereunder, and shall not be, nor within five years immediately preceding appointment have been * * * a licensee or person otherwise subject to the supervision or regulation of the board to which appointed” (Education Law § 6508 [1] [b] [i]). If the Legislature intended to make “lay member” apply to consumers not associated with the medical professions, it had a more restrictive term — public representative — readily available. The Legislature chose not to use that term or to incorporate a similar definition of lay member in section 230 of the Public Health Law. While the Bill Jacket of the 1975 legislation does contain several references to “consumer” members of the Board — a letter to “Concerned Citizens” and several other memoranda — the Legislature spoke in different terms when it made law (see Majewski v Broadalbin-Perth Cent. School Dist, 91 NY2d 577, 585-586 [1998]).

Finally, if the doctors are correct, then the Appellate Division’s interpretation is too restrictive. If the Legislature wanted consumers not associated with the medical profession to serve as lay members, notwithstanding the clear statutory language stating otherwise, then the Appellate Division’s decision only accomplishes half of the Legislature’s intent. Other health care workers not subject to the Board’s disciplinary authority could still serve as lay members even though they may have some allegiance to those being disciplined.

Our dissenting colleagues, like the doctors, conclude that the intent of the Legislature is clear — the composition of the panels must include a consumer (see dissenting op at 191) — however, they seem unwilling to give full effect to that interpretation. They advance the doctors’ arguments, but accept something less — the Appellate Division’s compromise. They are content to allow a host of medical services providers to serve on the panels even though the Legislature wanted “an outsider” who “reflect[s] the medical consumer’s perspective” (dissenting op at 191). The operative premise of the dissent’s analysis is that “[i]f the legislative history and purpose are clear, they should not be discounted merely because the final version of the bill did not include the clearer language” (dissenting op at 192). It would seem that the dissenters would press that the clarity of the Legislature’s intent be given full effect and that no providers of medical services (see dissenting op at 191-192) be included as lay members of the Board.

We agree with the dissent that ultimately courts are asked to identify the lines of demarcation from the words of a statute. In our view, the Legislature chose to identify two groups for membership on the Board — those who are physicians, a term defined in law, and those who are not. The solution offered by the dissent, and accepted by the Appellate Division, however reasonable, is not supported by construction of the statute.

This Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature. If the Legislature believes that the statute should mandate that the Board and its hearing committees be comprised of consumers or persons not subject to Board review, it knows how to do so. Until then, the statute will function without judicial caveat or extrapolation.

Accordingly, the orders should be reversed, with costs, and each matter remitted to the Appellate Division, Third Department, for consideration of issues raised in the proceedings but not determined by that Court.

1 . In 1971, the Legislature created a licensing provision for physician’s assistants (at that time called physician’s associates) (see L 1971, ch 1135, § 4, as amended). This legislation specifically mandated that disciplinary proceedings for physician’s assistants be conducted in accordance with the proceedings governing physicians (see id.). That mandate remained in effect after disciplinary authority over physicians was transferred to the Department of Health in 1975 (see L 1975, ch 210, as amended; L 1975, ch 109, § 28, as amended).

2 . Some of subdivision (1) was amended but not the use of the terms “physician” and “lay member” (see L 1991, ch 606, § 1).

3 . In 1986, the Legislature amended section 230 (6) reducing the number of physicians on a hearing committee from four to two (see L 1986, ch 266, §23).

4 . Both the doctors and the Appellate Division cite to the compromise discussed above as evidence of the Legislature’s intent. It should be noted that both rely on a report by the United States Department of Health, Education and Welfare that “found that there was a compelling need for State licensing boards ‘to move more strongly into the field of discipline’ and that the public’s ‘voice should be heard’ on such boards since the public had a vital interest in such matters” (Orens, 284 AD2d at 29 [quoting US Dept of Health, Educ and Welfare, 1 Report of Secretary’s Commn on Medical Malpractice, at 55]). There is no reference to this report in the Bill Jacket, and no evidence that any legislators were responding to this report in voting for the bill.