Lawrence v. De Buono

• Decision Date: 04 June 1998
• Citation: 673 N.Y.S.2d 773,251 A.D.2d 700
• Parties: , 1998 N.Y. Slip Op. 5336 In the Matter of Kay S. LAWRENCE, Petitioner, v. Barbara A. DE BUONO, as Commissioner of Health of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 773

673 N.Y.S.2d 773

251 A.D.2d 700, 1998 N.Y. Slip Op. 5336

In the Matter of Kay S. LAWRENCE, Petitioner, v. Barbara A. DE BUONO, as Commissioner of Health of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

June 4, 1998.

Dennis C. Vacco, Attorney-General (Raymond J. Foley, of counsel), New York City, for respondents.

Before MIKOLL, J.P., and CREW, WHITE, SPAIN and CARPINELLO, JJ.

CREW, Justice.

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

In February 1996, the Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner, a licensed physician primarily engaged in the practice of anthroposophic or homeopathic medicine, with seven specifications of misconduct. Specifically, petitioner was charged with at least one specification of practicing with negligence on more than one occasion, practicing with incompetence on more than one occasion, practicing with gross negligence on a particular occasion, failing to maintain adequate patient records, practicing medicine fraudulently and moral unfitness to practice the profession. The charges stemmed from petitioner's care and treatment of patients A and B during portions of 1986 and/or 1987.

At the conclusion of the administrative hearing that followed, at which petitioner appeared and testified, the Hearing Committee found that petitioner failed to maintain adequate patient records for both patients A and B. Additionally, the Hearing Committee concluded that petitioner practiced with negligence on more than one occasion by failing to (1) adequately evaluate and diagnose patient A's ectopic pregnancy, (2) monitor patient B's diet, and (3) perform adequate physical examinations of both patients A and B. Finally, the Hearing Committee determined that petitioner practiced with incompetence on more than one occasion by failing to give adequate consideration to and/or recognize the implications of both patients' respective medical histories in diagnosing and treating those patients. As to penalty, the Hearing Committee revoked petitioner's license to practice, prompting petitioner to commence this CPLR article 78 proceeding to challenge the Hearing Committee's determination.

Petitioner initially contends that the underlying disciplinary proceeding should have been dismissed due to the 8 1/2-year delay in filing the statement of charges. ¹ Assuming, without deciding, that the comments made by petitioner's former counsel at the commencement of the administrative hearing may be deemed sufficient to preserve this issue for our review (see, Matter of Choe v. Axelrod, 141 A.D.2d 235, 239, 534 N.Y.S.2d 739), we nonetheless are constrained to conclude that petitioner is not entitled to dismissal of the charges upon this basis.

To be sure, "[w]here administrative delay has significantly and irreparably handicapped a private party in mounting a defense in an adversary administrative proceeding, the agency, or court reviewing a final administrative order, is authorized to dismiss the proceeding" (Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 180, 495 N.Y.S.2d 927, 486 N.E.2d 785, cert. denied 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655). This court, however, consistently has held, and the Court of Appeals has made clear, that "absent proof of actual prejudice, mere delay is not the basis for annulling a determination in a disciplinary hearing" (Matter of Rojas v. Sobol, 167 A.D.2d 707, 708, 563 N.Y.S.2d 284, lv. denied 77 N.Y.2d 806, 568 N.Y.S.2d 914, 571 N.E.2d 84; see, Matter of Monti v. Chassin, 237 A.D.2d 738, 740, 655 N.Y.S.2d 145 [5 to 11-year delay]; Matter of Matala v. Board of Regents of Univ. of State of N.Y., 183 A.D.2d 953, 956, 583 N.Y.S.2d 575 [14-year delay]; see also, Matter of Cortlandt Nursing Home v Axelrod, supra, at 177, 495 N.Y.S.2d 927, 486 N.E.2d 785). Although the delay here indeed is significant, our review of the record fails to substantiate petitioner's claim of actual prejudice, which primarily rests upon her assertion that her recollection of the treatment provided to patients A and B, as well as patient B's recollection of the treatment rendered, have dimmed with the passage of time. Petitioner's own testimony demonstrates that she recalled with clarity the details of patient A's treatment. With respect to patient B, although petitioner admittedly could not recall certain details of the treatment rendered and patient B's testimony on this point frequently was quite vague, the Hearing Committee's findings with respect to patient B were based in large measure upon documentary evidence (or the lack thereof) (see, e.g., Matter of Tong Seng Tjoa v. Fernandez, 194 A.D.2d 938, 941, 598 N.Y.S.2d 868, lv. denied 82 N.Y.2d 659, 604 N.Y.S.2d 558, 624 N.E.2d 696). As such, we cannot say that petitioner met her burden of demonstrating actual prejudice (compare, Matter of Gold v. Chassin, 215 A.D.2d 18, 632 N.Y.S.2d 276, lv. denied 87 N.Y.2d 805, 640 N.Y.S.2d 878, 663 N.E.2d 920; Matter of Sharma v. Sobol, 188 A.D.2d 833, 591 N.Y.S.2d 572). ²

Petitioner next contends that she was denied due process due to the refusal by the Administrative Law Judge (hereinafter ALJ) to grant a brief adjournment, as a result of which neither petitioner nor counsel were present for the direct examination of...