Laverne v. Sobol
| Decision Date | 06 April 1989 |
| Citation | 539 N.Y.S.2d 556,149 A.D.2d 758 |
| Parties | In the Matter of Albert A. LAVERNE, Petitioner, v. Thomas SOBOL, as Commissioner of Education of the State of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jacobson & Goldberg (Robert Purzak, of counsel), Garden City, for petitioner.
Robert Abrams, Atty. Gen. (Raymond J. Foley, of counsel), Dept. of Law, Litigation Bureau, New York City, for respondent.
Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent which revoked petitioner's license to practice medicine in New York.
In April 1979 a disciplinary proceeding was commenced against petitioner, a physician duly licensed to practice medicine in New York, charging him with practicing the profession of medicine fraudulently and with unprofessional conduct within the meaning of Education Law § 6509(2) and (9). An amendment to the charges in December 1980 added a charge of practicing medicine while his ability to practice was impaired by physical or mental disability in violation of Education Law § 6509(3).
Although the first hearing before the Hearing Panel was scheduled for June 22, 1979, it was adjourned at petitioner's request several times and the hearings were not commenced until October 3, 1980. Hearings were then held on various dates thereafter and the last substantive evidence was presented in October 1981. Further adjournments were then granted due to the deterioration of petitioner's health and his incapacitation related with his health conditions. During the course of these adjournments, one of the members of the Hearing Panel died and was not replaced. Ultimately, the Hearing Panel decided to call a special hearing to be held January 30, 1985 to take testimony from petitioner's physician and to consider how this matter should proceed due to petitioner's poor health.
After testimony was taken from petitioner's physician, the State announced that it was resting its case. In its determination, the Hearing Panel offered to discontinue the matter if petitioner would turn his license over to the Education Department with the proviso that if petitioner's health improved, he could apply to the Department for a new registration. If petitioner did this, the State could then seek to resume the disciplinary proceeding against petitioner. If the proceeding resumed, petitioner then had the option of proceeding by affidavit with cross-examination by the State waived. Petitioner declined to accept any of the options presented in the Hearing Panel's determination and the hearing was resumed at the State's request on July 25, 1986 for the presentation of evidence.
Prior to this next hearing, one of the four remaining members of the Hearing Panel moved out of State and resigned, leaving but three original members. Two new members were then appointed to create a five-member Hearing Panel. The new members stated on the record that they had reviewed the matter and were fully apprised of the proceedings up to that point. Another adjournment was then granted so that petitioner's counsel could prepare his defense. At this last hearing on August 15, 1986, petitioner's counsel requested a further adjournment and also objected to proceeding with the hearing with the two substituted members. After the adjournment was denied and the objection overruled, petitioner's counsel rested without presenting any evidence.
On August 8, 1987, the Hearing Panel issued its report finding petitioner guilty of, inter alia, (1) fraud in misrepresenting to a patient that carbon dioxide therapy was reimbursable by Medicare as neurological treatment when he submitted the claim as a nonneurological treatment at a lesser rate, (2) fraudulent billing in assessing a patient for four treatments per day when he gave only one or two treatments per day, and (3) unprofessional conduct in advertising professional superiority and special abilities, and in advertising not in the public interest by stating that "the Lord" had given him certain photographs and divine healing energy in conjunction with his medical treatments. The Hearing Panel recommended revocation of petitioner's license to practice medicine.
The Regents Review Committee unanimously recommended that the Board of Regents adopt the findings and recommendations of the Hearing Panel. The Board of Regents voted to accept the recommendation and respondent issued an order revoking petitioner's license to practice medicine. Petitioner then initiated this CPLR article 78 proceeding to annul the revocation order.
Initially, we find no merit to petitioner's contention that the findings, determination and recommendation of the Hearing Panel should be deemed invalid because of the replacement of two of its members after the commencement of the hearing in alleged violation of Education Law § 6510(3)(c). This section, which relates to the conduct of the hearing, provides in pertinent part as follows:
A hearing which has been initiated shall not be discontinued because of the death or incapacity to serve of one member of the hearing panel (Education Law § 6510[3][c] ).
Petitioner argues that, instead of replacing the Hearing Panel members, the matter should have been discontinued. Petitioner asserts that a plain reading of the provision required that the hearings should have been ended and commenced again de novo. Respondent counters that the provision only limits the Hearing Panel's ability to discontinue a hearing, not its ability to continue it.
In our view the interpretation urged by respondent is correct. Respondent's interpretation is consistent with the legislative scheme. Education Law § 6510 provides that a hearing panel shall consist of "five or more members" (Education Law § 6510[3][b] [emphasis supplied] ), and that "a minimum of four of the voting members of the panel" must vote the accused guilty of the charge or charges to make a determination of guilty (Education Law § 6510[3][d] ). For example, it is...
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