Ritterband v. Axelrod

• Decision Date: 13 November 1990
• Citation: 149 Misc.2d 135,562 N.Y.S.2d 605
• Parties: In the Application of Arnold B. RITTERBAND, M.D., Petitioner, v. David M. AXELROD, as Commissioner of Health of the Department of Health of the State of New York, the Department of Health of the State of New York, Defendant.
• Court: New York Supreme Court

Page 605

562 N.Y.S.2d 605

149 Misc.2d 135

In the Application of Arnold B. RITTERBAND, M.D., Petitioner, v. David M. AXELROD, as Commissioner of Health of the Department of Health of the State of New York, the Department of Health of the State of New York, Defendant.

Supreme Court, Albany County.

Nov. 13, 1990.

Maynard, O'Connor & Smith, Albany, for petitioner.

Robert Abrams, Atty. Gen. (Victor Paladino, Asst. Atty. Gen., of counsel), Dept. of Law, Albany, for defendant.

JOSEPH HARRIS, Justice.

In this Article 78 proceeding, petitioner challenges the validity of 10 NYCRR, sections 405.3(b)(10), (11) and (13). These Health Department regulations require that hospitals provide physical examinations and record medical histories for "all employees, members of the medical staff, students, and volunteers whose activities are such that a health impairment would pose a potential risk to patients or personnel. The examination shall be of sufficient scope to ensure that no person shall assume his/her duties unless he/she is free from a health impairment which is of potential risk to the patient or which might interfere with the performance of his/her duties, including the habituation or addition to depressants, stimulants, narcotics, alcohol or other drugs or substances which may alter the individual's behavior. The hospital is required to provide such examination without costs for all employees ..."

The regulations also require that hospitals (a) at least annually reassess the health status of its personnel, (b) provide for the immunization of personnel for rubella and testing for tuberculosis and (c) maintain medical records for all personnel reflecting the dates and results of the health assessments, physical examinations, the results of lab tests and x-rays, and records of immunizations, illnesses and injuries.

Petitioner, a physician, raises six objections to the regulations: (1) That the statutory basis for the regulations constitutes an unlawful delegation of legislative authority, in violation of the separation of powers doctrine; (2) That respondents exceeded the scope of their authority in promulgating the regulations; (3) That the regulations are overly broad and uncircumscribed in that they allow hospitals to develop different minimum mental and physical qualifications for obtaining or retaining staff privileges; (4) That the regulations "violate" Public Health Law, section 2801-b, in failing "to provide any specific guidelines and criteria ... [or] other minimal substantive and procedural due process protection for ... physicians with staff membership privileges"; (5) That the provision requiring mandatory immunization for rubella violates the Fourth Amendment of the United States Constitution and Article 1, section 12 of the New York State Constitution; and (6) That the medical record keeping provision violates petitioner's right of privacy.

THE LAW

Procedural Considerations

Objections "3" and "4" above, contained in paragraph "11" and "12" of the petition, set forth the only grounds for relief cognizable in an Article 78 proceeding. [See: NYS Assoc. of Counties v. Axelrod, 156 A.D.2d 14, 553 N.Y.S.2d 923 (3d Dep't.1990); CPLR 7803(3) ].

Procedurally they are time-barred. The regulations herein were filed with the Secretary of State on August 11, 1988, and became effective on January 1, 1989. This proceeding, which had to be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner ..." (CPLR 217), was not commenced until June 27, 1990. Actual notice of an administrative act is not required where, as here, the act is a "quasi-legislative" act, as differentiated from a "quasi-judicial" administrative act, where Petitioner's claim set forth in paragraph 11 of his petition--that the regulations allow hospitals to set different minimum mental and physical requirements for obtaining or retaining physical staff privileges--fails for another reason--it is not ripe for judicial review, and thus is non-justiciable.

                actual notice is required to trigger the statute of limitations.   Petitioner herein does not, in paragraphs "11" and "12" of the petition, attack an individualized adjudication or a specific application of the regulations to him;  rather, he makes a facial attack on the regulations themselves, thus attacking a quasi-legislative act, not a quasi-judicial one.  (See:  Matter of Owners Comm. on Electric Rates v. Publ. Serv. Comm. of NYS, 76 N.Y.2d 779, 559 N.Y.S.2d 957, 559 N.E.2d 651 (1990), reversing 150 A.D.2d 45, 545 N.Y.S.2d 416)
                

There is no proof that petitioner has applied for privileges at another hospital where unreasonably stringent mental or physical requirements may have been set. If that happens, other legal redress is available to him. However, here, "Where the harm sought to be enjoined is contingent upon events which may not come to pass, the claim to enjoin the purported hazard is non-justiciable as wholly speculative and abstract." Matter of NYS Inspection and Law Enforcement Employees v. Cuomo, 64 N.Y.2d 233, 240, 485 N.Y.S.2d 719, 475 N.E.2d 90 (1984). (See also: American Ins. Assoc. v. Chu, 64 N.Y.2d 379, 487 N.Y.S.2d 311, 476 N.E.2d 637 (1985); New York Public Interest Research Group v. Carey, 42 N.Y.2d 527, 399 N.Y.S.2d 621, 369 N.E.2d 1155 (1977)).

Petitioner's claims--set forth in paragraphs "11" and "12" of his petition--that the regulations invalidly allow hospitals to develop different minimum mental and physical requirements for obtaining or retaining staff privileges, and that they fail to provide specific guidelines or other minimum "substantive and procedural" due process protection for staff physicians, are essentially a claim that these regulations, to that extent, are arbitrary and capricious. Even if the Court were to decide these contentions on their merits, petitioner would find no solace. The regulations in these two respects are not arbitrary and capricious, but are rational and well-tailored to meet variations in health problems faced by different medical institutions. The regulations do not give hospitals unfettered discretion in setting mental and physical qualifications. They must be of sufficient scope to ensure "that hospital personnel are free of health impairments that are potential risks to patients and personnel." (10 NYCRR, section 405.3(b)(10)).

Likewise, petitioner's argument that the regulations fail to provide due process protection for staff physicians is without merit. Firstly, despite the State's regulation of hospitals, there is no "state action" when a private hospital revokes staff privileges, so no due process protections are required. (See: Fried v. Straussman, 41 N.Y.2d 376, 393 N.Y.S.2d 334, 361 N.E.2d 984). A limited right of review of a revocation of a physician's staff privileges is set forth in procedures contained in section 2801-b of the Public Health Law, which modified the common law rule that, absent a contractual provision to the contrary, a hospital could revoke a physician's staff privileges at will, for any or no reason. (See: Cohoes Memorial Hospital v. Department of Health, 48 N.Y.2d 583, 424 N.Y.S.2d 110, 399 N.E.2d 1132). The regulations herein neither enhance nor diminish the procedural requirements of PHL, section 2801-b, nor the standard of judicial review contained therein. Neither were they intended to do so, nor need they do so.

The remaining claims of petitioner do not appear to fall within the realm of an Article 78 proceeding, but fit more aptly in the realm of a declaratory judgment. They do not seek review of an administrative determination or act but seek to quiet or stabilize "an uncertain or disputed jural relation either as to present or prospective obligations." (James v. Alderton Dock Yards, 256 N.Y. 298, 305, 176 N.E. 401). The questions involved are questions of substantive law for which the procedural devise of a declaratory judgment action was designed. Accordingly, the remainder Substantive Considerations

                of the petition is converted to a complaint for declaratory relief.   There being no disputed issues of fact--only questions of law--the Court will proceed to render summary judgment thereon
                

Delegation of Legislative Powers

A state agency possesses "those powers expressly delegated by the Legislature, together with those powers required by necessary implication." Consolidated Edison v. Public Service Commission, 47 N.Y.2d 94, 102, 417 N.Y.S.2d 30, 390 N.E.2d 749 (reversed on First Amendment grounds only, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)). Here, in formulating and promulgating the challenged regulations, respondents acted pursuant to specific legislative directives in furtherance of the Legislature's police power. PHL, section 2805-j provides respondents with specific authority to require physical examinations for hospital personnel, including physicians with staff privileges. Subdivision one requires every hospital to "maintain a coordinated program for the identification and prevention of medical ... malpractice." Such programs must include the "periodic review ... of the credentials, physical and mental capacity and competence in delivering health care services of all persons who are employed or associated with the hospital." [PHL, sec. 2805-j(1)(c) ]. PHL, section 2805-j(1)(b) further requires a review of the mental and physical capacity and competence of physicians, both periodically and in specific instances where warranted, as part of an evaluation of staff privileges.

Specific statutory authority for maintenance of records resulting from those examinations [10 NYCRR, sec. 405.3(b)(13) ] is found in PHL, section 2805-j(1)(f). (See also: PHL, section 2805-j(1)(c) ].

There is both general and specific authority to require immunization for rubella (German measles) and testing for tuberculosis. In section 2800 of the Public Health Law, the Legislature declared: "... the department of health...