Amodei v. New York State Chiropractic Ass'n

• Citation: 553 N.Y.S.2d 713,160 A.D.2d 279
• Parties: Joseph AMODEI, Petitioner-Respondent, v. NEW YORK STATE CHIROPRACTIC ASSOCIATION, Respondent-Appellant. Joseph AMODEI, D.C., Plaintiff-Appellant, v. NEW YORK STATE CHIROPRACTIC ASSOCIATION, et al., Defendants-Respondents, and Edward S. Patterson, Defendant, and Janice Fine, et al., Defendants-Respondents, and Ronald Bernidini, D.C. et al., Defendants.
• Decision Date: 10 April 1990
• Court: New York Supreme Court Appellate Division

Page 713

553 N.Y.S.2d 713

160 A.D.2d 279

Joseph AMODEI, Petitioner-Respondent, v. NEW YORK STATE CHIROPRACTIC ASSOCIATION, Respondent-Appellant.

Joseph AMODEI, D.C., Plaintiff-Appellant, v. NEW YORK STATE CHIROPRACTIC ASSOCIATION, et al.,

Defendants-Respondents,

and

Edward S. Patterson, Defendant,

and

Janice Fine, et al., Defendants-Respondents,

and

Ronald Bernidini, D.C. et al., Defendants.

Supreme Court, Appellate Division,

First Department.

April 10, 1990.

H.S. Davis, New York City, for Joseph Amodei.

L.C. Greenman, for New York State Chiropractic Association, and Janice Fine, et al.

Before MURPHY, P.J., and KUPFERMAN, ASCH, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order and Judgment (one paper) of the Supreme Court, New York County (John A.K. Bradley, J.), entered on or about October 7, 1988, which granted the petition for a judgment, pursuant to CPLR Article 78, annulling and setting aside respondent New York State Chiropractic Association's two-year suspension of petitioner's membership and which directed the Association to reinstate petitioner's membership, reversed, on the law, the said suspension reinstated, and the petition dismissed, without costs.

Order and Judgment of the Supreme Court, New York County (David Edwards, Jr., J.), entered, respectively, on February 17, 1989 and April 4, 1989, which granted the motion by the Association and defendants Jack Beige, Robert Matrisciano, Robert Kleinberg, Janice Fine, Laura Scharf and Mark Holland to dismiss plaintiff's complaint as against the moving defendants pursuant to CPLR § 3211(a)(7), unanimously affirmed, without costs.

At issue in the Article 78 proceeding is whether the charges upon which petitioner's suspension is founded were properly referred to the New York State Chiropractic Association's Board of Delegates for disciplinary action. Petitioner, a Certified Insurance Consultant of the Association since 1973, was accused of violating Insurance Consultant Guideline Number 10 which provides, in relevant part: "The Chiropractic Consultant shall, at no time, make any remarks to the patient which may cause the treating doctor or his treatment regimen to be discredited in the eyes of the patient." As a result of complaints arising out of a consulting examination of one Janice L. Fine, performed for Geico Insurance Company, which were received from both the patient and her treating chiropractor, Robert Kleinberg, D.C., petitioner was charged with "unprofessional conduct". Charges were officially referred by nine members of the Association's Insurance Consultants Committee, which held a hearing on the subject on October 28, 1986. A Board of Inquiry was appointed by the Association's President, which convened on April 28, 1987 to conduct a hearing.

The results of this hearing were reported by the President to the House of Delegates on September 19, 1987. The Board of Inquiry found that petitioner "did comment negatively on the type and nature of the care Ms. Fine received in such a manner as to denigrate the treating doctor in the eyes of his patient and that Dr. Amodei did speculate to the patient as to the doctor's motives for not including certain modality treatments in such a manner as to denigrate the treating doctor in the eyes of this patient." The panel recommended suspension from the Association for a period of two years, which recommendation was adopted by the House of Delegates.

We note, with reference to the dissenting opinion, that there is no question as to petitioner's freedom to comment on the effectiveness of the treatment received by the patient in his report to the insurer. Rather, at issue is the propriety of petitioner's comments to the patient, during a consultative examination conducted at the behest of an insurance company, in direct violation of the Association's guidelines for its Certified Insurance Consultants. Indeed, we note that, on this appeal, petitioner emphasizes the inconsistency between the disparaging remarks he allegedly made to Ms. Fine and the report he submitted to the insurer, which was devoid of negative comments regarding the treatment she received.

Petitioner contends that the Insurance Consultants Committee, whose function is defined in the Association's Constitution and By-Laws as being "responsible for establishing and maintaining standards for the Insurance Consultants Panel of the organization," was without authority to hold a hearing and refer charges to the President of the Association. Petitioner asserts that the committee was misled as to the scope of its authority by Edward Patterson, who is identified in various documents as General Counsel to the Association. In fact, as the IAS Court pointed out, "Mr. Patterson has been disbarred based on allegations of larceny and perjury." Indeed, Mr. Patterson was also present at the Board of Inquiry hearing which established petitioner's guilt and at the meeting of the House of Delegates which imposed the suspension. The minutes of the House of Delegate's meeting specifically identify Mr. Patterson as General Counsel.

The nature and propriety of Mr. Patterson's affiliation with the Association are not before us at this time. We note only that Article 3, § 7 of the Constitution and By-Laws of the Association provides, "No less than five (5) regular members in good standing may file charges against any other member when sufficient cause exists by filing a notarized affidavit with the Secretary of this organization." There is no suggestion that the members of the Insurance Consultants Committee were not regular members in good standing. Nor is there any reason advanced why, as members of a committee, they should be precluded from instituting disciplinary action that any five members of the Association could initiate. The provisions of the Constitution and By-Laws relating to the preferring of charges, hearing and formal disciplinary action have...