Hachamovitch v. DeBuono

• Citation: 159 F.3d 687
• Decision Date: 16 September 1998
• Docket Number: Docket No. 97-9065
• Parties: Moshe HACHAMOVITCH, M.D., Plaintiff-Appellant, v. Barbara A. DeBUONO, as Commissioner of Health, NYS Dept. of Health; Kathleen Tanner, as Director of the Office of Professional Medical Conduct, NYS Dept. of Health; Charles Vacanti, M.D., as Chairman of the Board for Professional Medical Conduct, NYS Dept. of Health; Jonathan M. Brandes, as Administrative Law Judge, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 687

159 F.3d 687

Moshe HACHAMOVITCH, M.D., Plaintiff-Appellant, v. Barbara A. DeBUONO, as Commissioner of Health, NYS Dept. of Health; Kathleen Tanner, as Director of the Office of Professional Medical Conduct, NYS Dept. of Health; Charles Vacanti, M.D., as Chairman of the Board for Professional Medical Conduct, NYS Dept. of Health; Jonathan M. Brandes as Administrative Law Judge, Defendants-Appellees.

Docket No. 97-9065

United States Court of Appeals Second Circuit.

Argued April 21, 1998.

Decided Sept. 16, 1998.

John F. Shea, III, Riverhead, NY (Stephen B. Latham, David M. Dubin, Twomey, Latham, Shea & Kelley, LLP, on the brief), for Plaintiff-Appellant.

Michael S. Popkin, Assistant Attorney General, New York, NY (Dennis C. Vacco, Attorney General, John W. McConnell, Deputy Solicitor General, Thomas D. Hughes, Assistant Solicitor General, Barbara K. Hathaway, Assistant Attorney General, on the brief), for Defendants-Appellees.

Before: WALKER, JACOBS and CALABRESI, Circuit Judges.

JACOBS, Circuit Judge:

Following state proceedings in which his medical license was suspended, plaintiff-appellant Moshe Hachamovitch, M.D., sued officials of New York State under 42 U.S.C. § 1983, alleging that certain physician disciplinary procedures are so deficient as to violate due process. The United States District Court for the Southern District of New York (Wood, J.) refused to exercise jurisdiction, relying on the Rooker-Feldman doctrine and Burford abstention. We conclude that the district court was under an obligation to exercise its jurisdiction over one claim but not the other, and we therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

This case arises out of a suspension of Dr. Hachamovitch's license to practice medicine by New York's Board for Professional Medical Conduct ("BPMC") on the ground that he had falsified an operating report by deliberately and substantially understating the quantity of blood lost by a patient who died following an abortion.

Dr. Hachamovitch's license was suspended for one year, but the suspension was permanently stayed for eleven months, so that effectively the suspension is only for one month. Dr. Hachamovitch has yet to serve the suspension, because stays imposed by various administrative and judicial bodies or agreed to by the parties have thus far postponed the sanction.

Some time after the BPMC concluded the proceedings before it, Dr. Hachamovitch discovered evidence (in connection with a civil malpractice case involving the same patient) that he claimed was exculpatory and sought to reopen the disciplinary proceedings. The ALJ determined that the New York state regulatory scheme did not permit the reopening of a concluded proceeding; Dr. Hachamovitch petitioned for a writ of mandamus, but the New York State Appellate Division, Third Department, upheld the administrative law judge's ruling that the New York regime conferred no power on either the agency or the court to reopen a closed proceeding; the court then indicated, however, that the new evidence presented by Dr. Hachamovitch did not warrant reopening the hearing, even if the court had the power to order it.

Appellees are Barbara DeBuono, the Commissioner of New York's Department of Health ("DOH"); Kathleen Tanner, the director of BPMC; Charles Vacanti, the chairman of the BPMC; and Jonathan Brandes, the administrative law judge ("ALJ") who presided over Hachamovitch's professional disciplinary hearing.

A. New York's Framework for Licensing and Disciplining Physicians

The BPMC is an administrative body created by Public Health Law § 230 that investigates and imposes discipline for professional misconduct as defined by the New York Education Law §§ 6530 and 6531. The BPMC, "by the director of the office of professional medical conduct," ¹ is required to investigate all complaints of professional misconduct, and has the power to open such investigations on its own initiative. N.Y. Pub. Health Law § 230(10)(a) (McKinney 1990 & 1997-98 Supp.). Once the case is referred to an investigative committee of three BPMC members, those individuals review evidence and decide whether a hearing is warranted. If the investigative committee orders a hearing, counsel for the BPMC is directed to prepare formal charges detailing the "substance of the alleged professional misconduct and [stating] clearly and concisely the material facts but not the evidence by which the charges are to be proved." Id. § 230(10)(b). Upon the filing of formal charges, Public Health Law § 230(10)(a)(iv) authorizes a widening of the investigation to include a comprehensive review of the physician's patient records. The hearing is conducted by a three-member Hearing Committee, consisting of two physicians and a lay member. Id. § 230(6). An ALJ presides over each hearing as a non-voting member and, among other functions, rules on objections. Id. § 230(10)(e). The Hearing Committee must present its determinations in writing, with findings of fact and conclusions of law. Id. § 230(10)(g).

Review of the Hearing Committee's determination is available, upon request, by the Administrative Review Board ("ARB") of the BPMC. Id. § 230(10)(i). An appeal to the ARB stays the imposition of penalties imposed by the Hearing Committee, except for annulment, suspension without stay, or revocation. See id. § 230-c(4). Additionally, either after review by the ARB or instead of an appeal to the ARB, a party may seek judicial review of the Hearing Committee's determination by the New York State Appellate Division, Third Department, via an Article 78 petition. A petitioner can secure a stay of any penalties pending this review as well, by showing "a substantial likelihood of success" of the appeal. Id. § 230-c(5).

Although most of the regulations and procedural protections afforded to physicians detailed above are of long standing, a significant change in the regulatory framework was made in 1991. On July 26, 1991, chapter 606 of the Laws of the State of New York transferred responsibility for medical disciplinary proceedings from the Education Department's Board of Regents to the Department of Health. The procedures provided for by the Board of Regents permit reconsideration of a disciplinary decision after the close of the hearing. See New York Comp.Codes R. & Regs., tit. 8, § 3.3(f). This reopening procedure is still available to professionals who continue to be licensed by the Board of Regents, including landscape architects, social workers, engineers, architects and accountants. But the Department of Health had no such procedure in place prior to the 1991 transfer of responsibility, and (whether by oversight or design) has not adopted a procedure for the reconsideration or reopening of a closed disciplinary proceeding.

B. Dr. Hachamovitch's Disciplinary Proceedings

The investigation of Dr. Hachamovitch was triggered by the death of a patient following an abortion on October 20, 1990. Her death was caused by an undetectable condition that is virtually always fatal and was not the result of any lapse in Dr. Hachamovitch's standard of care. The investigation focused instead on whether Dr. Hachamovitch's patient notes (and report) fraudulently understated the amount of blood lost prior to the patient's death. (A further charge, of which he was absolved on appeal, accused Dr. Hachamovitch of falsifying his notes concerning the administering of oxygen to the patient.) Among those in a position to observe the amount of blood loss were the four paramedics who went to Dr. Hachamovitch's office in response to his call for emergency assistance.

Hachamovitch attempted to obtain the EMS records relating to this call. EMS refused to produce them; Hachamovitch obtained a subpoena for the records from the New York State Supreme Court, Queens County. OPMC intervened, obtained the file, and produced it to Hachamovitch in June 1992. Documents in the file identified the EMS personnel by employee number only.

In July 1992, Hachamovitch sought and obtained a subpoena duces tecum for the OPMC's investigative file. But the court imposed the limitation that the subpoena be "subject to all confidentiality protection accorded by lawful mandate." That was no small proviso in light of the state's Public Health Law:

The 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.

N.Y. Pub. Health Law § 230(10)(a)(v). The Department of Health's Uniform Hearing Procedures provide that in a proceeding that may result in a license revocation, disclosure is limited solely to: (1) names of witnesses (but not a summary of their anticipated testimony); (2) a list of documentary evidence; (3) photocopies of documentary evidence; and (4) a brief description of physical or other evidence that cannot be photocopied. N.Y. Comp.Codes R. & Regs., tit. 10, § 51.8(b) (1980). In other proceedings, the regulations prohibit all disclosure. Id. § 51.8(a).

In November 1992, Hachamovitch requested that the BPMC or the OPMC provide him with prehearing disclosure, as provided in the DOH regulations, as well as any exculpatory evidence in the BPMC's possession. The BPMC's list of witnesses and exhibits included the names of the four paramedics. In response to the request for exculpatory materials, OPMC stated that it would provide no disclosure unless explicitly required by DOH regulations.

At the outset of the hearing, the ALJ ruled that the subpoena did not require disclosure of the investigative file except as permitted by DOH regulations, and that DOH regulations did not allow the disclosure. But the ALJ further determined that Hachamovitch could seek further enforcement of the subpoena from the court that had...