Doe v. Axelrod
| Decision Date | 30 December 1986 |
| Citation | 510 N.Y.S.2d 92,123 A.D.2d 21 |
| Parties | In the Matter of the Application of John DOE (A fictitious name), Petitioner-Appellant, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. David AXELROD, as Commissioner of Health of the State of New York, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jerome R. Halperin, P.C., for petitioner-appellant; (Guy S. Halperin and Alice Slater, New York City, with him on brief).
Adina Kling, of counsel (Robert Abrams Atty. Gen., New York City), for respondent-respondent.
Before SANDLER, J.P., and SULLIVAN, FEIN, KASSAL and ROSENBERGER, JJ.
This Article 78 proceeding seeks to challenge the authority of the Commissioner of Health to issue an interlocutory order reversing a ruling of the administrative law officer appointed to a panel hearing professional misconduct charges against petitioner, a licensed medical practitioner. This appeal raises the substantive question of whether the Commissioner acted within his statutory authority, as well as the procedural question as to whether such an interlocutory ruling can be challenged in an Article 78 proceeding.
Petitioner is a licensed physician who has practiced psychiatry in this State since 1970, treating what he describes as "severely emotionally disturbed and psychotic persons". He has served on the staff of a major hospital in the New York City metropolitan area, and also teaches psychiatry at a medical school. For a number of years petitioner maintained his own private practice in psychiatry, which he discontinued in March 1980 due to his own poor health.
In April 1985 charges were brought against petitioner for professional misconduct based upon the complaints of four female former patients. Each complainant alleged that petitioner had sexually abused her during the course of psychiatric treatment.
The procedure for hearing such complaints of alleged professional medical misconduct is set forth in Article 2, Title II-A of the Public Health Law. The Commissioner of Health is required to appoint at least 18 licensed physicians and at least 7 lay members to the board for professional medical conduct (Public Health Law § 230[1] ). The Commissioner is also required to designate an administrative officer, a non-voting New York practicing attorney with authority to rule on all motions and objections raised during the hearing (Public Health Law § 230 subd. 10[e] ). Professional misconduct proceedings shall be conducted by committees consisting of four physicians and one lay member of the Board. Upon conclusion of the hearing, the committee must make findings of fact, conclusions concerning the allegations, and a recommendation on proposed sanctions. These conclusions are then drafted by the administrative officer who forwards them to the Commissioner for action. Upon review of the committee's findings, conclusions and recommendation, the Commissioner then makes his own recommendation, which he forwards, together with the record, to the State Board of Regents, which is the body with ultimate authority to take disciplinary action (Public Health Law § 230 subd. 10[i]; Education Law § 6510-a subd. 2).
A statement of charges was preferred against petitioner on April 18, 1985. The hearing was conducted on June 11 and 12, July 10 and 11 and August 14, 1985. The four complaining witnesses testified as to sexual abuse suffered in connection with treatment received, respectively, from September 1974 through March 1980, from May 1978 through September 1979, for several months in 1978, and for several weeks in the fall of 1970. In other words, none of the misconduct was alleged to have taken place within five years of these proceedings, and some had allegedly taken place as much as fifteen years earlier.
Upon completion of the testimony of each of the four complaining witnesses, petitioner sought to cross examine those witnesses as to whether or not any of them had filed prior complaints against him with the Board, and if so, a request was made to examine those prior complaints. Respondent's counsel vigorously objected, citing the confidentiality of such reports under Public Health Law § 230 subd. 11(a). After soliciting briefs and hearing oral argument on this point, the administrative officer overruled the objections, directing the witnesses to present themselves for cross examination and directing respondents to produce documentary evidence of any such prior complaints. Respondent's counsel, after consulting with "colleagues in the Office of Professional Medical Conduct", announced her refusal to comply with the ruling of the administrative officer on the ground that it would be a violation of the law protecting the confidentiality of such proceedings. Petitioner's counsel at this point moved for dismissal of the charges against his client. The administrative officer advised respondent's counsel that she was in contempt for failure to comply with his ruling, and after consulting with the panel in executive session, the administrative officer announced that the proceedings would be adjourned for five weeks, to permit respondent to produce either the documents requested or a protective court order. Short of that, the administrative officer indicated that he would reconsider petitioner's dismissal motion.
Upon the reconvening of hearings, respondent's counsel announced that respondent would not comply with either alternative in the administrative officer's directive. The administrative officer then ruled that while he did not have authority to dismiss the charges, he would direct the board members not to consider the testimony of the four complaining witnesses in reaching their findings, conclusions and recommendation.
In its report to the Commissioner, the hearing panel noted that the sole issue before the panel was the credibility of the four complaining witnesses. The panel reported that the administrative officer had taken the position that the confidentiality provisions of Public Health Law § 230 subd. 11(a) were "not intended to cover a situation where a person complaining to the Board for Professional Conduct takes the witness stand and testifies against an individual." The hearing panel accordingly recommended "that the Commissioner take whatever legal steps are necessary to permit this Panel to make a full determination on the merits of the charges against the Respondent physician."
Citing Public Health Law § 230 subd. 11(a), which mandates confidentiality in such proceedings, respondent Commissioner reversed the rulings of his designated administrative law officer which had (a) stricken the testimony of the four complaining witnesses, (b) instructed the committee not to consider their testimony and (c) held respondent's counsel in contempt, and the Commissioner instead remanded the matter to the committee so that they might reconvene and complete the hearing. "The purpose of the confidentiality mandate [in the statute] was to encourage reports of misconduct", wrote respondent. "That purpose is not served by requiring disclosure directly or penalizing the [Commissioner] for failure to disclose by dismissing charges."
Viewing the Commissioner as retaining the authority to review and reverse any and all administrative rulings on evidentiary questions, especially where policy considerations are concerned, Special Term dismissed this Article 78 proceeding (132 Misc.2d 980, 506 N.Y.S.2d 128). Petitioner appeals.
Three questions are presented for our consideration on this appeal. At the threshold is the procedural question of whether an Article 78 proceeding is appropriate here, to challenge an interlocutory order of the Commissioner. In other words, can the court reach the issue at this point, or is petitioner required to suffer an adverse final administrative ruling (i.e., a determination of misconduct) before resorting to litigation?
Second, the substantive question of law is whether the administrative officer has exclusive and unfettered authority to make rulings on issues of law arising during the course of proceedings, or whether the statute reserves to the Commissioner the right of review over such matters. The third question involves the underlying merits: can petitioner cross examine and discover, within the context of the confidentiality provisions of the statute?
While an Article 78 proceeding is normally premature where administrative remedies have not been exhausted, one recognized exception is where an interlocutory act of the respondent Commissioner is attacked as unconstitutional and beyond that administrative officer's grant of power (Village of Herkimer v. Axelrod, 88 A.D.2d 704, 705, 451 N.Y.S.2d 303, affd. 58 N.Y.2d 1069, 462 N.Y.S.2d 633, 449 N.E.2d 413, citing Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 412 N.Y.S.2d 52, 385 N.E.2d 560). A license to practice medicine is a valuable property right which, although subject to regulation under the state's police power, may only be denied or withdrawn under procedures consonant with constitutional due process ( Mtr. of Bender v. Board of Regents, 262 App.Div. 627, 631, 30 N.Y.S.2d 779; Benton v. Alabama Board of Medical Examiners, 467 So.2d 234; Commission on Medical Discipline v. Stillman, 291 Md. 390, 435 A.2d 747; Aitchison v. State, 204 Md. 538, 105 A.2d 495, cert. den. 348 U.S. 880, 75 S.Ct. 116, 99 L.Ed. 692; In re Buck's License, 192 Or. 66, 232 P.2d 791; Farney v. Anderson, 56 Ill.App.3d 677, 14 Ill.Dec. 346, 372 N.E.2d 151; Campbell v. Board of Medical Examiners, 16 Or.App. 381, 518 P.2d 1042), just as an attorney's right to practice is protected under constitutional due process (In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117). Forcing petitioner to pursue his administrative remedies without adequate discovery regarding the complaining witnesses would arguably undermine and impair the right...
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