Matter of D'Souza v. New York State Department of Health

• Decision Date: 31 December 2009
• Docket Number: 505601
• Citation: 68 A.D.3d 1562,893 N.Y.S.2d 294,2009 NY Slip Op 10004
• Parties: In the Matter of IVAN A. D'SOUZA, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1562

2009 NY Slip Op 10004

893 N.Y.S.2d 294

In the Matter of IVAN A. D'SOUZA, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.

505601

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

Decided December 31, 2009.

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

ROSE, J.

A Hearing Committee of the State Board for Professional Medical Conduct sustained 14 charges of professional misconduct against petitioner, a physician specializing in obstetrics and gynecology. The charges, which include engaging in conduct that evidences moral unfitness to practice medicine, were based upon petitioner's attempted and actual improper sexual contact with four of his female patients. Upon petitioner's application for review, respondent Administrative Review Board for Professional Medical Conduct (hereinafter ARB) sustained the charges and revoked his license to practice medicine. Petitioner then commenced this CPLR article 78 proceeding to annul the ARB's determination.

Inasmuch as this proceeding is to review the determination of the ARB, petitioner's contention that the Hearing Committee's determination was not supported by substantial evidence is misplaced (see Matter of Maglione v New York State Dept. of Health, 9 AD3d 522, 524 [2004]). Rather, review of an ARB determination "is limited to whether the decision is arbitrary and capricious, affected by an error of law or an abuse of discretion," and "our inquiry distills to whether the ARB's determination has a rational basis and is factually supported" (Matter of Khan v New York State Dept. of Health, 286 AD2d 562, 563 [2001] [internal quotation marks and citations omitted]; see Matter of Brown v New York State Dept. of Health, 235 AD2d 957, 957-958 [1997], lv denied 89 NY2d 814 [1997]). Moreover, in reviewing the ARB's determination, "we do not resolve credibility issues or weigh the testimony of expert witnesses, for those issues are solely within the province of the administrative factfinder" (Matter of Chua v Chassin, 215 AD2d 953, 955 [1995], lv denied 86 NY2d 708 [1995]; see Matter of Brown v New York State Dept. of Health, 235 AD2d at 958).

Here, the credited testimony revealed that petitioner had inappropriately kissed and made sexually suggestive comments to two patients, engaged in a sexual relationship with another of his patients and, later, after the relationship had ended, asked her to perform oral sex while she was in a hospital recovering from an operation. He also inappropriately touched the breasts and genitals of a fourth patient during a gynecological examination. The contrary testimony of petitioner and his witness raised credibility issues that the Hearing Committee and, ultimately, the ARB resolved against him (see e.g. Matter of Solomon v Administrative Review Bd. for Professional Med. Conduct, Dept. of Health, 303 AD2d 788, 789 [2003], lv denied 100 NY2d 505 [2003]). Thus, the record provides a rational basis to support the charges sustained here (see Matter of Maglione v New York State Dept. of Health, 9 AD3d at 524-525).

Next, petitioner contends that the ARB improperly considered evidence regarding reports of his sexual misconduct to others by two of the patients because the reports did not meet the "prompt outcry" exception to the hearsay rule. We cannot agree. Neither the Hearing Committee nor the ARB was bound by the rules of evidence (see Public Health Law § 230 [10] [f]; Matter of Smith v New York State Dept. of Health, 66 AD3d 1144, 1147 [2009]; Matter of Kosich v New York State Dept. of Health, 49 AD3d 980, 982 [2008], appeal dismissed 10 NY3d 950 [2008]; Matter of St. Lucia v Novello, 284 AD2d 591, 593 [2001]), and they could consider hearsay evidence without regard to whether it would come within a recognized exception. We also disagree with petitioner's argument that the patients' delay in reporting the alleged sexual contact to third parties rendered the reports so inherently unreliable as to preclude their admissibility (s...