MATTER OF ORENS v. Novello

• Decision Date: 14 November 2002
• Citation: 783 N.E.2d 492,753 N.Y.S.2d 427,99 N.Y.2d 180
• Parties: In the Matter of PERRY ORENS, Respondent, v. ANTONIA C. NOVELLO, as Commissioner of the Department of Health of the State of New York, et al., Appellants. In the Matter of PAUL S. MAYER, Respondent, v. ANTONIA C. NOVELLO, as Commissioner of the Department of Health of the State of New York, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

99 N.Y.2d 180

783 N.E.2d 492

753 N.Y.S.2d 427

In the Matter of PERRY ORENS, Respondent, v. ANTONIA C. NOVELLO, as Commissioner of the Department of Health of the State of New York, et al., Appellants.

In the Matter of PAUL S. MAYER, Respondent, v. ANTONIA C. NOVELLO, as Commissioner of the Department of Health of the State of New York, et al., Appellants.

Court of Appeals of the State of New York.

Argued October 8, 2002.

Decided November 14, 2002.

Eliot Spitzer, Attorney General, New York City (Sachin S. Pandya, Caitlin J. Halligan, Michael S. Belohlavek and Marion R. Buchbinder of counsel), for appellants in the first and second above-entitled proceedings.

Asher Fensterheim, Tarrytown, for respondent in the first above-entitled proceeding.

Law Offices of Irving O. Farber, PLLC, South Salem (Irving O. Farber and Annette G. Hasapidis of counsel), for respondent in the second above-entitled proceeding.

Judges SMITH, LEVINE and GRAFFEO concur with Judge WESLEY; Judge ROSENBLATT dissents and votes to affirm in a separate opinion in which Chief Judge KAYE and Judge CIPARICK concur.

OPINION OF THE COURT

WESLEY, J.

Section 230 of the Public Health Law establishes a State Board for Professional Medical Conduct (Board). The Board through its committees on professional conduct hears charges of misconduct against physicians, medical residents, physician's assistants and specialist's assistants (see Public Health Law § 230 [7]). Each committee is made up of three members of the Board and must include two physicians and one lay member (see Public Health Law § 230 [6]). In each of these misconduct cases, the committee was comprised of two physicians and a physician's assistant. Respondents argue that because a physician's assistant is not a "lay member" within the meaning of the statute, each hearing committee was improperly constituted. We disagree and remit the remaining issues raised in each case to the Appellate Division.

Matter of Orens:

Perry Orens, M.D., was charged with 34 specifications of professional misconduct arising from his care and treatment of 10 patients. At a prehearing conference, Orens objected to the composition of the three-member panel. He argued that the panel did not include a "lay member" as required by Public Health Law § 230 (6). The Administrative Law Judge (ALJ) overruled the objection. Following the hearing, the professional conduct committee concluded that the Department of Health sustained its burden of proof and revoked Orens' license to practice medicine.

Following an administrative review of the committee's findings, Orens then commenced this CPLR article 78 proceeding in the Appellate Division seeking to annul the determination (see Public Health Law § 230-c [5]). The Court unanimously annulled the determination, granted the petition and remitted the matter to the Board for a new hearing (see Matter of Orens v Novello, 284 AD2d 26 [2001]). The Court rejected the State's claim that "lay member" includes anyone who is not a licensed physician (id. at 28). It concluded that the Legislature intended to exclude from that definition any person subject to the disciplinary measures of section 230, including physician's assistants (see id. at 29-30).

Matter of Mayer:

Dr. Paul S. Mayer, a specialist in obstetrics and gynecology, was charged with numerous specifications of professional misconduct. At the outset of the evidentiary hearing before the professional conduct committee, Mayer objected to its three-member composition claiming that the "lay member" could not be a physician's assistant. The ALJ overruled the objection and ordered the hearing to proceed. At the conclusion of the hearing, the committee sustained nine specifications of misconduct and revoked Mayer's license.

Mayer then commenced this CPLR article 78 proceeding to annul the determination. The Court unanimously annulled the determination, granted the petition and remitted the matter to the Board for a new determination. The Court held that

"[i]n our view, there is merit to the contention that the Hearing Committee was improperly composed of three medical practitioners whose professions are subject to the Public Health Law § 230 disciplinary process, therefore violating the requirement of Public Health Law § 230 (6) that a Hearing Committee `consist of two physicians and one lay member,' and requiring that we annul the determination and remit for a new hearing" (Matter of Mayer v Novello, 288 AD2d 780, 781 [2001] [citing Orens, 284 AD2d at 28]).

Analysis:

The question before us is one of statutory interpretation. Our analysis begins with the language of the statute. If the terms are clear and unambiguous, "`the court should construe it so as to give effect to the plain meaning of the words used'" (Matter of Auerbach v Board of Educ., 86 NY2d 198, 204 [1995] [quoting Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208 (1976)]). Our objective in this regard is "to discern and apply the will of the Legislature, not the court's own perception of what might be equitable" (Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]).

In cases where the term at issue does not have a controlling statutory definition, courts should construe the term using its "usual and commonly understood meaning" (Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001]). "Lay member" is not defined in section 230, but the dictionary definition does give some assistance. Merriam-Webster's Collegiate Dictionary defines "layman" as "a person who does not belong to a particular profession or who is not expert in some field" (Merriam-Webster's Collegiate Dictionary 659 [10th ed 2002]; see also Black's Law Dictionary 896 [7th ed] [defining "layman" as "(a) person who is not a member of a profession or an expert on a particular subject"]). Here, physician's assistants are clearly not physicians nor may they be considered to possess the same expertise or training of a physician.

"Only a person licensed or otherwise authorized under [article 131 of the Education Law] shall practice medicine or use the title `physician'" (Education Law § 6522). To qualify for a physician's license, an individual must hold a degree of doctor of medicine (or doctor of osteopathy) and meet experience and examination requirements established by the Board of Regents (see Education Law § 6524; see also 8 NYCRR 60.3 [requiring physicians to complete one year of postgraduate hospital training]). Physician's assistants are licensed under a separate provision of the Education Law (see Education Law art 131-B; §§ 6540-6548). A physician's assistant's educational requirements are considerably different from that of a physician (compare Education Law § 6524 with § 6541 [physician's assistants must have a high school diploma or its equivalent and complete an approved program for physician's assistants]). Physician's assistants are able to perform some medical services, but only when they are under the continuous supervision of a physician and only when those services are within the scope of the supervising physician (see Education Law § 6542). Because the statute makes a simple distinction between physicians and lay members, the most logical view of that distinction is between those who are physicians and those who are not.

Our rules of statutory construction reinforce our view that "lay member" includes all nonphysicians. In 1991, the Legislature amended different portions of section 230 to clarify that other health care workers were within the disciplinary reach of the Board.¹ It did so by dropping its jurisdictional reference to physicians in subdivision (7) and utilizing a new and broader term—licensee—which encompasses physicians, medical residents, physician's assistants and specialist's assistants (see L 1991, ch 606, § 2, codified at Public Health Law § 230 [7], as amended). However, the Legislature did not amend the statutory references to "physician" or "lay member" in the subdivisions dealing with the composition of its review committees (see Public Health Law § 230 [1], [6]).² Certainly, had the Legislature intended to exclude physician's assistants from serving on the Board (or one of its review committees) as "lay members," it could have done so easily by directing that a lay member not be a licensee as defined in the statute. A contemporaneous amendment to another subdivision of the same statute was all that was required. "When different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended" (Matter of Albano v Kirby, 36 NY2d 526, 530 [1975]; see also Rangolan v County of Nassau, 96 NY2d 42, 47 [2001] ["where * * * the Legislature uses different terms in various parts of a statute, courts may reasonably infer that different concepts are intended"]). We think the inference is appropriate here.

Orens and Mayer argue that a different view of the statute is required by its legislative history. In 1975, the Governor proposed to transfer the power of disciplining physicians from the Board of Regents to the Department of Health and the new State Board for Professional Medical Conduct. The original bill required that the Board "consist of not less than twenty physicians licensed in the state for at least five years" (1975 NY Senate-Assembly Bill S 5007, A 6969). Members would be appointed by the Commissioner of Health on recommendations made from specific medical groups (see id.). The legislation was revised after a number of groups expressed opposition to vesting disciplinary power in a board (and its hearing committees) that would be comprised solely of physicians (see NY State Educ Dept News, Nyquist Opposes Transfer of Medical Profession Discipline, Apr. 15, 1975, Bill Jacket, L 1975, ch 109; NY State Educ Dept News, State Board for Medicine Releases Statement on Malpractice, Apr. 15, 1975, at 3, Bill Jacket, L 1975, ch 109). The composition of the Board and its...