Harron v. Daines

• Decision Date: 10 June 2010
• Citation: 74 A.D.3d 1529,902 N.Y.S.2d 253
• Parties: In the Matter of Ray A. HARRON, Petitioner, v. Richard F. DAINES, as Commissioner of Health, Respondent.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 253

74 A.D.3d 1529

In the Matter of Ray A. HARRON, Petitioner,

v.Richard F. DAINES, as Commissioner of Health, Respondent.

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

June 10, 2010.

Law Offices of Lawrence S. Goldman, New York City (Elizabeth M. Johnson of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York City (James M. Hershler of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, PETERS, KAVANAGH and GARRY, JJ.

MERCURE, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5] ) to review a determination of the Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

Petitioner, a board certified radiologist, resides in Texas but also has been licensed to practice medicine in New York since 1958. In March 2008, the Bureau of Professional Medical Conduct initiated a referral proceeding against petitioner basedupon disciplinary action taken against petitioner in Texas and Mississippi. Specifically, the Texas Medical Board found in 2007 that petitioner, among other things, had made misrepresentations in diagnostic reports produced for plaintiffs in connection with his work as a medical expert in silica/silicosis tort litigation. Pursuant to an agreed order, petitioner was ordered not to practice medicine in Texas until the expiration of his license in May 2007 and, further, not to seek renewal of his license in that state. Relying on the findings and order of the Texas Medical Board, the Mississippi State Board of Medical Licensure thereafter entered a consent order wherein petitioner agreed to give up his right to seek renewal and reinstatement of his medical license in Mississippi.

Following an expedited referral hearing before a Hearing Committee of the State Board for Professional Medical Conduct, the Committee found petitioner guilty of misconduct based upon the Texas and Mississippi orders. Noting that petitioner chose not to testify, that the record contained no mitigating evidence, and that petitioner's negligent and fraudulent practices constituted a course of conduct rather than a few aberrant acts, the Committee determined that revocation of petitioner's medical license was an appropriate penalty. The Administrative Review Board for Professional Medical Conduct (hereinafter ARB) affirmed, concluding that petitioner's license was properly revoked pursuant to Education Law § 6530(9)(d) because the findings of fact by the Texas Medical Board demonstrated conduct that would constitute fraud and negligence in New York. In that regard, the ARB concluded that the Texas findings demonstratedthat petitioner had inadequate information about reliability of exposure histories referred to in his diagnostic reports, made inadequate efforts to rule out other causes for litigants' symptoms, did not review or edit many of the diagnostic reports that he signed, and indicated that he relied upon physical examinations in diagnosing litigants even when such examinations did not contribute to his diagnosis. Petitioner commenced this proceeding seeking to vacate the ARB's determination.

We confirm. Inasmuch as "the Hearing Committee's determination was reviewed by the ARB ..., our review is limited to ascertaining whether [the ARB's determination] was arbitrary and capricious, affected by error of law or an abuse of discretion" ( Matter of Arnett v. New York State Dept. of Health, 69 A.D.3d 1001, 1002, 893 N.Y.S.2d 334 [2010], lv. denied 14 N.Y.3d 707, 900 N.Y.S.2d 730, 926 N.E.2d 1236 [2010] [internal quotation marks and citation omitted]; see Matter of Aptaker v. Administrative Review Bd. for Professional Med. Conduct, 60 A.D.3d 1160, 1162, 875 N.Y.S.2d 604 [2009], lv. denied 12 N.Y.3d 713, 883 N.Y.S.2d 178, 910 N.E.2d 1008 [2009] ). Petitioner argues that the ARB acted arbitrarily and capriciously by relying upon the Texas and Mississippi determinations because, he asserts, those determinations contained disclaimers of wrongdoing and no specific finding of guilt. Contrary to his argument, however, Education Law § 6530(9)(d) does not "requir[e] proof of guilt of the out-of-state misconduct charges" ( Matter of D'Ambrosio v. Department of Health of State of N.Y., 4 N.Y.3d 133, 139, 791 N.Y.S.2d 63, 824 N.E.2d 494 [2005] ). Rather, section 6530(9)(d) defines professional misconduct as "having voluntarily or otherwise surrendered [a] license after a disciplinary action was instituted by a duly authorized professional disciplinary agency of another state, where the conduct resulting in ... the surrender of the license would, if committed in New York state, constitute professional misconduct." The statute was designed "to close a loophole... by subjecting a physician to disciplinary review if (as found by the [ARB] in the case before us) 'the physician "voluntarily" surrendered his or her license in another state to avoid a finding of medical misconduct' " ( Matter of D'Ambrosio v. Department of Health of State of N.Y., 4 N.Y.3d at 140, 791 N.Y.S.2d 63, 824 N.E.2d 494, quoting Mem of State Exec Dept, 1985 McKinney's Session Laws of N.Y., at 3027). Hence, it imposes only "two requirements before a finding of professional misconduct in New York" may be made based upon a negotiated compromise resolving an out-of-state disciplinary proceeding: first, "the voluntary surrender of a license after disciplinary action was instituted by a duly authorized professional disciplinary agency of another state," and second, "conduct resulting in the surrender that would, if committed in New York, constitute professional[misconduct] in this state" ( Matter of D'Ambrosio v. Department of Health of State of N.Y., 4 N.Y.3d at 139, 791 N.Y.S.2d 63, 824 N.E.2d 494).

We note that, although a negotiated compromise cannot be given preclusive effect on collateral estoppel grounds ( see Matter of Halyalkar v. Board of Regents of State of N.Y., 72 N.Y.2d 261, 266-270, 532 N.Y.S.2d 85, 527 N.E.2d 1222 [1988] ), the Court of Appeals has held that the doctrine of collateral estoppel is inapplicable to referral proceedings under Education Law § 6530(9)(d) because the statute "eliminat[ed][the] requirement that guilt be proved" ( Matter of D'Ambrosio v. Department of Health of State of N.Y., 4 N.Y.3d at 140, 791 N.Y.S.2d 63, 824 N.E.2d 494 [distinguishing Halyalkar ] ). Moreover, as this Court has explained, when a "petitioner [has] waived an adjudication of the merits of the [out-of-state] complaint by entering into a stipulation of settlement," an inference is raised "that the allegations against him [or her] had some validity" ( Matter of Hatfield v. Department of Health of State of N.Y., 245 A.D.2d 703, 705, 665 N.Y.S.2d 755 [1997]; see Matter of Sternberg v. Administrative Review Bd. for Professional Med. Conduct, 235 A.D.2d 945, 946, 652 N.Y.S.2d 855 [1997], lv. denied 90 N.Y.2d 809, 664 N.Y.S.2d 271, 686 N.E.2d 1366 [1997] ). Thus, we have...