Matter of Smith v. New York State Dept. of Health

• Decision Date: 22 October 2009
• Docket Number: 505019.
• Citation: 2009 NY Slip Op 7532,66 A.D.3d 1144,887 N.Y.S.2d 294
• Parties: In the Matter of JOHN WILLIAM SMITH, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.
• Court: New York Supreme Court — Appellate Division

66 A.D.3d 1144

887 N.Y.S.2d 294

2009 NY Slip Op 7532

In the Matter of JOHN WILLIAM SMITH, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH, Respondent.

505019.

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

Decided October 22, 2009.

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.

Spain, J.

The Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner, a physician practicing in New York City who specialized in plastic surgery, with six specifications of professional misconduct based upon allegations of inappropriate conduct while examining two female patients, patients A and B. With respect to patient A, the amended charge was that while she was being examined for ongoing treatment for a lip laceration in February 2005, petitioner touched her breasts and nipples without any legitimate medical purpose, under the guise of performing a medical examination. An audiotape was admitted into evidence of a telephone call the following day, arranged by an Assistant District Attorney from New York County, from patient A to petitioner; during the call, in response to her questions to him about the incident, petitioner admitted touching her breasts and nipples but claimed he had done so as part of a required test for sensitivity related to her alleged inquiry about a tummy tuck procedure. He also admitted to hugging her and grabbing her, and apologized. Petitioner, in his answer and testimony at the hearing, admitted touching patient A's breasts for nipple sensation, but claimed that he did so only after she inquired about breast augmentation and consequential loss of sensation, an explanation not offered during the phone conversation. The medical experts called by petitioner and BPMC were unanimous that there is no medical reason to touch a patient's breasts in an evaluation for a tummy tuck, which petitioner conceded at the hearing, and that nipple sensation would only be evaluated for breast augmentation surgery. Petitioner's medical records for patient A do not reflect that she inquired about breast augmentation, that he performed a full breast examination, that petitioner took a medical history necessary for such a procedure or that he recorded any result regarding his purported sensitivity test or advised her about the risks.

With respect to patient B, the charge was that in 2002, while patient B was being examined by petitioner in the hospital emergency room prior to her admission for gall bladder surgery by another physician, petitioner asked about her medications. Upon learning that she was taking a particular psychiatric medicine, petitioner remarked with words to the effect that "you're not going to get horny if you continue with this medication" and "your husband is going to leave you." Later, petitioner entered patient B's hospital room, sat close to her on the bed and, without a medical purpose, told her he needed to examine her nipples. Patient B testified that she refused and shielded herself when petitioner attempted to touch her breasts, which she promptly reported to family members, her surgeon and the hospital. Petitioner denied any inappropriate remarks to or examination of patient B. He testified that patient B asked him in the emergency room if her medicine could affect sex and, after motioning him into her hospital room, asked if they could cause nipple pain, whereupon he asked her if she would like him to examine her breasts, which she declined, and he did not touch her. Patient B denied making any such inquiries of petitioner.

After a hearing held over the course of several months in 2007 before a Hearing Committee of the State Board for Professional Medical Conduct, the Hearing Committee sustained all of the charges and suspended petitioner's license until July 1, 2008, placed him on five years of probation and limited his license to require a chaperone's presence during all patient interactions, and directed that he attend training. Petitioner and BPMC appealed, and the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) sustained the charges, but modified the penalty by revoking petitioner's license. Petitioner commenced this proceeding seeking to annul the ARB's determination and, given that we find no merit to his contentions, we confirm.

Upon review of the record, we do not find that petitioner was denied either due process or a fair hearing. The tape recorded conversation between patient A and petitioner—in which he admitted and attempted to justify touching her nipples—was properly admitted in evidence, as its authenticity and accuracy were established by clear and convincing evidence that it was "genuine and that there has been no tampering with it" (People v McGee, 49 NY2d 48, 59 [1979], cert denied 446 US 942 [1980]; see People v Ely, 68 NY2d 520, 527 [1986]). The foundation for the admission of the tape was provided by the testimony of the Assistant District Attorney who witnessed the conversation and was subject to cross-examination, and petitioner conceded that it was his voice on...