Anonymous v Bureau of Professional Med. Conduct/ State Bd. for Professional Med. Conduct |
2003 NYSlipOp 16646 |
Decided on September 11, 2003 |
Appellate Division, First Department |
Marlow, J. |
This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Petitioner appeals from a judgment of the Supreme Court, New York County
(Kibbie Payne, J.), entered November 18, 2002, which denied physician's
application to annul the determination of respondent State Board for
Professional Medical Conduct to publish the Determination and Order issued in
connection with a disciplinary proceeding. 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 Bureau of
Professional Medical Conduct and State Board for Professional Medical Conduct
are each part of respondent New York State Department of Health. Pursuant to New
York Public Health Law, 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 Department of Health 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.
Respondent 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 [*3]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] and § 230-a; Education Law § 6530 [32]).
Thereafter, respondent Department of Health Bureau of [*4]Professional Conduct (hereinafter respondent Bureau),
in accordance with its policy to publish on its official website all
disciplinary orders rendered against physicians once they are final (that is,
after the administrative appeal process has been exhausted), published on its
website 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 . 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]ll disciplinary orders are public upon final disposition."
Petitioner then instituted this proceeding pursuant to CPLR article 78 to
compel respondents to withdraw the Statement of Charges and Determination and
Order from publication on its website and keep confidential its records
concerning the accusations which were not sustained. Petitioner argued that
respondents' 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.
Respondents maintained that the Public Health Law requires that the Board
keep disciplinary proceedings confidential only [*5]until, and regardless of, their final outcome . Respondents also claimed they were required
to disseminate this information pursuant to the Patient Health Information and
Quality Improvement 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." 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." 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."
On appeal, petitioner maintains that the public policy of this State and the
express terms of Public Health Law § 230 require that respondent Department of
Health keep confidential, after final determination, the existence and terms of
dismissed and rejected charges and factual accusations. We agree and reverse.
We acknowledge that "the practical construction of the statute by the agency
charged with implementing it, if not [*6]unreasonable, is entitled to deference by the courts"
(Matter of Harris & Assoc. v deLeon, 84 NY2d 698, 706) "depending
upon the extent to which the interpretation relies upon the special competence
the agency is presumed to have developed in its administration of the statute"
(Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47). However,
"where, as here, the question is one of pure statutory construction dependent
only on accurate apprehension of legislative intent [with] little basis to rely
on any special competence, judicial review is less restricted as statutory
construction is the function of the courts" (id. at 47-48 [citations and
internal quotations omitted]; see also Matter of Webster
Central School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 626). In any
event, respondents' construction of the law as requiring public dissemination of
dismissed disciplinary proceedings involving licensed professionals flies in the
face of this State's general underlying policy that these disciplinary
proceedings remain confidential until concluded. Moreover, we find that
dissemination of unsustained charges after a confidential hearing advances no
legitimate state interest.
New York's statutes and court decisions reflect a policy of keeping
disciplinary proceedings involving licensed professionals confidential until
they are finally determined (see Doe v Office of Professional Med
Conduct, 81 NY2d 1050; Matter of Johnson Newspaper Corp. v Melino, 77
NY2d 1, 10). This policy, while ensuring the privacy of a potential complainant
who might otherwise not file a complaint of professional misconduct, "also
evinces a sensibility to the possibility of irreparable harm to a professional's
reputation resulting from unfounded accusations — a possibility which is
enhanced by the more relaxed nature of the procedures and evidentiary rules
followed in disciplinary proceedings" (Johnson, id. at 11).
Thus, we start with the premise of confidentiality. [*7] The statute, contrary to respondents' contention and the Supreme Court's
holding, does not require that confidentiality be thrown out the window once a
doctor receives a favorable determination by the Board. There is nothing in
Public Health Law § 230(10)(g) which requires that charges which are not
sustained be disseminated to the public. Rather, this statute, relied on by both
sides to support their respective contentions, by its plain language, does not
require respondents to make public this information (see McKinney's Cons
Laws of NY, Book 1, Statutes § 76 [statutes too clear for construction] and § 94
[intent determined from natural and obvious meaning]). The statute states, in
relevant part, that "[t]he committee's findings, conclusions, determinations and
order shall become public upon issuance in any case in which annulment,
suspension without stay or revocation of the licensee's license is ordered."
Here, petitioner received a reprimand. Thus, this statute [*8]is not applicable to petitioner. Respondents point to
no other section of the Public Health Law which requires that after the
Committee has determined that the Department of Health has not sustained charges
against a doctor, these charges must be disseminated to the public.
Respondents also argue that petitioner "utterly fails to explain why any
reasonable person would credit dismissed allegations when reading a
Determination and Order that clearly states which allegations were sustained and
which were dismissed." Indeed, it takes no special expertise on the subject of
"human nature" to appreciate that many people will have continued doubts about
whether petitioner actually committed these allegedly serious improprieties with
which he was charged, and somehow avoided accountability, i.e., "got off on a
technicality." It is virtually certain that doubts like these will arise and
that they will negatively and unjustifiably impact potential patients' decisions
to choose petitioner as their physician.
Moreover, it makes no sense to summarily cast aside confidentiality concerns
simply because a final determination contains both sustained and unsustained
charges. In this case, that is especially so since the only sustained charge,
had it been the sole charge, would have resulted in an administrative
warning, which itself, by law, is entitled to a cloak of confidentiality and
does "not constitute an adjudication of guilt" nor may it "be used as evidence
that the licensee is guilty of the alleged misconduct" (Public Health Law §
230[10][m][ii]).
Respondents offer no legitimate explanation why redaction is [*9]not an appropriate remedy under these circumstances.
Specifically, respondents complain that:
In addition to finding that respondents' interpretation of the statute is not
arbitrary and capricious, the Supreme Court also found that respondents were
required to maintain physician profiles and that the charge (even though not
sustained) was "critical" to the public's ability to make an informed decision
in selecting a doctor. However, we find nothing in the Patient Health
Information and Quality Improvement Act of 2000 which requires public
dissemination of charges, or information relating to those charges, which,
particularly on their merits, are not sustained. Public Health Law § 2995-a
(1)(b) requires the [*10]Department of Health to
create and publicly disseminate physician profiles which include disciplinary
actions taken against physicians under § 230, "other than an action that remains
confidential." Only two types of actions by DOH must be kept confidential: 1)
administrative warnings issued upon a finding that the physician committed
either "professional misconduct of a minor or technical nature or of substandard
medical practice which does not constitute professional misconduct" (Public
Health Law § 230[10][m][ii]); and 2) orders directing that the physician's
medical practice be monitored (Public Health Law § 230[17][c]).
Respondents do not dispute that the Legislature intended to protect 1) those
physicians who receive an administrative warning after a charge of professional
misconduct was sustained, and 2) those physicians whose practice was directed to
be monitored because there existed reasonable cause to believe that these
doctors were unable to practice medicine with reasonable skill and safety to
patients. However, respondents simultaneously contend that the Legislature did
not intend to protect physicians who are accused of misconduct but are, after a
full hearing, completely exonerated. Respondents' contention and their reading
of the Public Health Law defy all common sense and logic. Indeed, we agree with
petitioner's counsel who at oral argument aptly observed that there would be no
point in affording accused medical professionals, inter alia, full evidentiary
hearings on professional misconduct charges, the fundamental right of
cross-examination, the right to testify and call witnesses on their behalf, and
the right to be represented by counsel of their choosing, if, after all of that,
a dismissed charge were required to be made public.
Moreover, contrary to the court's finding that under Public Health Law §
2995-a the Department of Health "has discretionary authority to publish and
disseminate information concerning physicians who are licensed to practice
within the state," this discretion is not without statutory limitation. The
statute itself prohibits the Department of Health from publishing criminal "not
guilty" verdicts and professional disciplinary matters which are otherwise
required to be kept confidential. [*11]The statute
also prohibits the Department of Health from publishing pending malpractice
actions, dismissed malpractice actions, malpractice settlements if two or less
in number, unless the Commissioner determines that the settlement is relevant to
patient decisionmaking concerning health care quality.
Thus, under the terms of this statute, if a doctor receives a favorable
determination in either a criminal action or a civil action, the information is
not available for public review. We therefore find that it is unquestionably in
accord with the purpose and tenor of the statute to similarly insulate from
public access any information involving a favorable determination in a medical
disciplinary proceeding.
We need not reach petitioner's alternate contention in light of our
determination.
Accordingly, the judgment of the Supreme Court, New York County (Kibbie
Payne, J.), entered November 18, 2002, which denied petitioner physician's
application pursuant to CPLR article 78 to annul the determination of respondent
State Board for Professional Medical Conduct to publish, on respondent Bureau of
Professional Medical Conduct's website, the Determination and Order issued in
connection with a disciplinary proceeding against petitioner, should be
reversed, on the law, with costs, the petition granted and respondents directed
to withdraw from public access those portions of the Statement of Charges,
Determination and Order, and any other records which relate in any way to the
charges which were not sustained against petitioner.
I agree with the majority in this particular matter, that "dissemination of
unsustained charges after a confidential hearing advances no legitimate state
interest," that respondent probably improvidently exercised its discretion here,
and that the statutory policy of confidentiality is intended to protect both
complainant and accused professional in a professional disciplinary hearing
(Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1, 11; Doe v
Office of Professional Med. Conduct, 81 NY2d [*12]1050, 1052). However, I would be remiss if I failed to
note that the confidentiality that we are asserting here is inferred from the
statute rather than express, in a statutory setting where the Legislature
clearly intends broad public dissemination of physician information, including
misconduct. Such circumstances bring to mind the Doe court's statement
(at 1053) that: "[i]n our view, however, the Legislature is in the best position
to weigh conflicting policy values represented by these two approaches
[confidentiality and public disclosure] as they affect the various professions
and enact consistent provisions for them THIS CONSTITUTES THE DECISION AND ORDER ENTERED: SEPTEMBER 11, 2003
CLERK
Charles A. Singer,
attorney for petitioner-appellant,
James M. Hershler, of counsel (Marion R.
[*2]Buchbinder,
on the brief, Eliot Spitzer,
Attorney General of the State of New
York, attorney) for
respondents-respondents.
Respondents
contend that although the ongoing proceeding must be kept confidential, once
charges against a doctor are determined to be totally unfounded the doctor is
afforded absolutely no protection, and these unfounded charges can be displayed
worldwide on the Internet. Respondents' determination, accepted by the nisi
prius court, is utterly devoid of logic, and therefore, we deem it arbitrary,
capricious and a total abuse of discretion.
It is difficult to imagine that determinations could be coherently
fashioned or edited to omit discussions of charges that are dismissed.
Notably, petitioner has failed to suggest how the respondents could
practicably go about identifying and excising all references to dismissed
charges or matters petitioner considers "personal" in nature, when much of the
Determination and Order in this case resolves issues going to the entire
record such as credibility of the witnesses and determination of the
appropriate penalty.
Here, however, the sustained charge and the
other charges not sustained are easily severable, as the factual predicate for
the sustained charge is unconnected to the alleged factual predicate for the
dismissed charges. In any event, absent any authority to support respondents'
irrational policy of disseminating information about dismissed, i.e., presumably
false, charges, redaction is respondents' only appropriate choice. Moreover,
regardless of respondents' legal obligation to keep dismissed charges
confidential, it is also the only decent and fair way to treat factually
discredited accusations. Therefore, this Court categorically rejects
respondents' claim that redaction is difficult to achieve.
All concur except Williams, J. who concurs in a separate
Opinion.
WILLIAMS, J. (concurring)
giving appropriate protection to
the interests of the parties and witnesses and the public interest."
OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.
On appeal, petitioner limits his request to the
removal of all references to the charges which were not sustained.
Petitioner has abandoned on appeal his claim for
attorneys' fees.
However, once a physician's license is annulled,
suspended without stay or revoked, regardless of whether the physician was
appealing the determination, the Committee is required by Public Health Law §
230(10)(g), as amended in 1996, to make public its findings, conclusions,
determinations and order. Respondents asserted that the intent of the amendment
was to expand the public's access to disciplinary orders by making certain
orders available notwithstanding that they were not final due only to a pending
appeal.
Other statutes which support this policy of
confidentiality are: Public Health Law § 230(10)(a)(v)[files of the
office of professional medical conduct relating to the investigation of possible
instances of professional misconduct shall be confidential and not subject to
disclosure at the request of any person, except as provided by law in a pending
disciplinary action or proceeding]; State Administrative Procedure Act §
307 (3)(b)[agency may delete from its index, decision, determination or order
any information that, if disclosed, would constitute an unwarranted invasion of
personal privacy under Public Officers Law § 89(2)]; Public Officers Law
§ 87(2)(b) [agency may deny access to records or portions thereof which if
disclosed would constitute an unwarranted invasion of personal privacy under the
provisions of § 89(2)]; 10 NYCRR 50-1.6 [all records of the Department of Health
are available for public inspection except that access may be denied to those
records or portions thereof that are specifically exempted from disclosure by
State or Federal statute or if disclosed would constitute an unwarranted
invasion of personal privacy]).
Although petitioner does not take issue with
respondents' publication of the Statement of Charges and Determination and Order
relating to the sustained charge, there does not appear to be any specific
statutory authority which requires public dissemination of the Committee's
Findings of Fact, Conclusions of Law and Determination and Order after a penalty
of reprimand is imposed. However, dissemination of such information is not
contrary to the public policy of advising potential patients of adverse
determinations against doctors.