Fischer v. Nyack Hosp.

• Decision Date: 02 June 2016
• Citation: 32 N.Y.S.3d 714,140 A.D.3d 1264,2016 N.Y. Slip Op. 04283
• Parties: In the Matter of Eva FISCHER, Respondent–Petitioner, v. NYACK HOSPITAL, Appellant–Respondent, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1264
32 N.Y.S.3d 714
2016 N.Y. Slip Op. 04283

In the Matter of Eva FISCHER, Respondent–Petitioner,
v.
NYACK HOSPITAL, Appellant–Respondent, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

June 2, 2016.

32 N.Y.S.3d 714

Nixon Peabody LLP, Albany (Jena R. Rotheim of counsel), for appellant-respondent.

32 N.Y.S.3d 715

O'Connell & Aronowitz, Albany (Caitlin Monjeau of counsel), for respondent-petitioner.

Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and AARONS, JJ.

LAHTINEN, J.P.

140 A.D.3d 1264

(1) Appeal from an order of the Supreme Court (Mott, J.), entered December 3, 2014 in Albany County, which denied a motion by respondent Nyack Hospital to, among other things, convert the CPLR article 78 proceeding into a plenary action, and (2) proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Nyack Hospital denying petitioner medical privileges at that institution.

Petitioner, a surgeon, had medical privileges at respondent Nyack Hospital that were set to expire in mid–2012. While her application to renew was pending, Nyack summarily suspended her in May 2012 after learning that her privileges had recently been suspended at another hospital. She met with Nyack's medical executive committee, which recommended that the

140 A.D.3d 1265

suspension be upheld and her privileges not be renewed. After this recommendation was adopted by Nyack, she requested a hearing, which ensued before a four-member panel of physicians. The panel issued a detailed written decision finding, among other things, that petitioner had a pattern of inaccessibility to staff when on call, she repeatedly did not respond promptly to the emergency department when on call, she failed to obtain coverage when unavailable because of illness, she left the operating room and could not be located while her patients were in surgery and she failed to properly disclose her suspension at the other hospital as required by Nyack's bylaws. Based on these and other findings, the panel recommended that her application be denied. Nyack's board of trustees accepted the panel's recommendation.

Pursuant to Public Health Law § 2801–b, petitioner filed a complaint with respondent Public Health and Health Planning Council (hereinafter PHHPC) challenging Nyack's refusal to renew her privileges. PHHPC did not credit her complaint and informed her that Nyack's reasons for terminating her privileges were “focused on patient care and welfare and were consistent with Public Health Law [§ ] 2801–b.” Petitioner commenced this CPLR article 78 proceeding seeking to annul Nyack's determination and reinstate her privileges.¹ Nyack answered, moved to convert the proceeding into a plenary action and, once converted, for summary judgment dismissing the complaint. Supreme Court denied Nyack's motion and transferred the proceeding to this Court pursuant to CPLR 7804(g). Nyack appealed from the denial of its motion.²

Nyack's motion to convert the proceeding into an action for injunctive relief should have been granted. Although at common law a private hospital had unfettered discretion in denying privileges to a

32 N.Y.S.3d 716

physician, Public Health Law article 28 was enacted to temper the harsh effect of the common law (see e.g. Matter of Cohoes Mem. Hosp. v. Department of Health of State of N.Y., 48 N.Y.2d 583, 588, 424 N.Y.S.2d 110, 399 N.E.2d 1132 [1979] ; Guibor v. Manhattan Eye, Ear & Throat Hosp., 46 N.Y.2d 736, 737, 413 N.Y.S.2d 638, 386 N.E.2d 247 [1978] ). Under the

140 A.D.3d 1266

statute, it is an improper practice for a hospital to deny privileges unless it gives reasons therefor, and those reasons relate to “standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant” (Public Health Law § 2801–b [1 ] ). An aggrieved physician generally must seek review from PHHPC of a denial of privileges (see Public Health Law § 2801–b [2 ]; Gelbard v. Genesee...