MATTER OF WEG v. DeBuono

• Citation: 269 A.D.2d 683,703 N.Y.S.2d 301
• Parties: In the Matter of OSKAR WEG, Petitioner,<BR>v.<BR>BARBARA DEBUONO, as Commissioner of Health, et al., Respondents. (Proceeding No. 1.)<BR>In the Matter of OSKAR WEG, Petitioner,<BR>v.<BR>ANTONIA C. NOVELLO, as Commissioner of Health, et al., Respondents. (Proceeding No. 2.)
• Decision Date: 17 February 2000
• Court: New York Supreme Court Appellate Division

269 A.D.2d 683

703 N.Y.S.2d 301

In the Matter of OSKAR WEG, Petitioner,

v.BARBARA DEBUONO, as Commissioner of Health, et al., Respondents. (Proceeding No. 1.)

In the Matter of OSKAR WEG, Petitioner,

v.ANTONIA C. NOVELLO, as Commissioner of Health, et al., Respondents. (Proceeding No. 2.)

Spain, J.

Decided February 17, 2000.

Cardona, P. J., Crew III, Peters and Graffeo, JJ., concur.

Spain, J.

Proceeding No. 2 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, inter alia, suspended petitioner's license to practice medicine in New York.

In October 1994, respondent Department of Health (hereinafter DOH) issued charges against petitioner, an orthopedic surgeon, alleging violations of Public Health Law § 18 (2) (d) and (e) for failure to provide, or timely provide, medical records to authorized representatives of four of his patients (hereinafter patients A through D), and for demanding unreasonable fees for providing the records. Prior to a hearing on those charges, petitioner and DOH signed a stipulation dated January 30, 1995 in which petitioner admitted the charged violations. Petitioner agreed to pay a civil penalty of $8,000, $6,000 of which was suspended contingent on petitioner's compliance in the next two years with Public Health Law § 18, and DOH agreed to terminate the action "with prejudice."

In April 1998, following the receipt of complaints regarding petitioner's failure to provide medical records in a reasonable time and/or charging unreasonable fees therefor, the Bureau of Professional Medical Conduct (hereinafter the Bureau) charged petitioner with 10 specifications of professional misconduct. The first specification charged petitioner with misconduct pursuant to Education Law § 6530 (9) (c) for having been found guilty of violating a State statute, based upon his 1995 stipulation to the violations of Public Health Law § 18. The second through ninth specifications charged petitioner with misconduct pursuant to Education Law§ 6530 (40) based on his failure to provide patient records to qualified persons for patients A through D as well as patients I through L in accordance with Public Health Law § 18. The 10th specification charged petitioner with misconduct pursuant to Education Law § 6530 (2) for making a false entry in the medical record of patient L.

Thereafter, a hearing before a Hearing Committee of respondent State Board for Professional Medical Conduct (hereinafter the Committee) was held. Petitioner, represented by counsel, testified in defense that he had withheld the relevant records for a variety of good-faith reasons (see, Public Health Law § 18 [11]). By decision and order dated October 14, 1998, the Committee sustained the charged allegations of professional misconduct under Education Law § 6530, largely discrediting petitioner's testimony in light of the contrary testimonial and documentary evidence. The Committee imposed a civil penalty of $50,000 and ordered a stayed suspension of petitioner's medical license during a period of probation of not less than five years, which stay would be lifted upon the receipt of any complaint against petitioner concerning Public Health Law § 18 or other laws governing the release of patient records.

On November 2, 1998, by order to show cause, petitioner requested this Court's review of the Committee's decision and order and a stay of that order (proceeding No. 1). On November 5, 1998, the Bureau served a notice of review to respondent Administrative Review Board for Professional Medical Conduct (hereinafter the Review Board) and, thereafter, by cross motion to this Court, moved to dismiss petitioner's petition based on that pending administrative review. This Court granted the stay of the Committee's order and denied the Bureau's cross motion to dismiss, but subsequently denied petitioner's motion to stay the proceedings before the Review Board.

Upon its review, the Review Board determined that the Bureau's request for review was timely and that the Review Board was not precluded from reviewing the Committee's determination by virtue of petitioner's pending special proceeding in this Court. Further, it affirmed the Committee's determination as to the first through the ninth specifications but overturned the determination on the 10th specification. In addition—finding that the indefinite period of probation and the conditions of the stayed suspension imposed by the Committee were improper—the Review Board modified the penalty and imposed a 30-day actual suspension of petitioner's license and a five-year period of probation and reduced the monetary penalty to $8,000. Petitioner thereafter petitioned this Court for review of this determination as well, and this Court granted his request for a stay thereof pending our review.

PROCEEDING NO. 1

As an initial matter, petitioner is incorrect in contending that the Bureau's November 5, 1998 request for administrative review by the Review Board was untimely and defective. Petitioner does not contest that the Bureau served a notice of review on November 5, 1998. Public Health Law § 230-c (4) (a) provides that "[a] notice of review must be served by certified mail upon the administrative review board and the adverse party within fourteen days of service of the determination of the [Committee]" (emphasis supplied). Significantly—as the Committee's letter accompanying its determination explained— "[s]ervice [of the Committee's determination] shall be * * * by certified mail upon the licensee * * * and such service shall be effective upon receipt or seven days after mailing by certified mail whichever is earlier" (Public Health Law § 230 [10] [h] [emphasis supplied]). Inasmuch as the Bureau received the Committee determination on October 22, 1998, the Bureau's notice of review—served upon and received by the Review Board on November 5, 1998—was timely.

Moreover, while the text of the Bureau's notice of review referenced an incorrect order number, the caption clearly referenced the correct order number and properly named petitioner. In addition, by letter dated November 12, 1998, the Bureau corrected the typographical error. Therefore, petitioner was provided proper and sufficient notice under Public Health Law § 230-c (see, Matter of Ross v New York State Dept. of Health, 226 AD2d 863, 866).

Equally without merit is petitioner's contention that the Review Board was without jurisdiction to review the Committee's determination at the Bureau's request simply because petitioner sought review by this Court of the Committee's determination prior to the Bureau's request for review by the Review Board. Significantly, Public Health Law § 230-c (5) only permits judicial review of a Committee determination where "no review by the administrative review board was requested" (see, Public Health Law § 230-c [4] [a]), and the Bureau herein timely requested such review. Thus, this Court must yield to the Review Board's jurisdiction to review the Committee's determination (see, Matter of Saunders v State Bd. for Professional Med. Conduct, 253 AD2d 569; see also, Selkin v State Bd. for Professional Med. Conduct, 63 F Supp 2d 397, 400). Notably, we do not subscribe to petitioner's interpretation of Public Health Law § 230-c (5) that the chronological timing of a request for judicial review prior to a timely request for administrative review divests the Review Board of jurisdiction to review a Committee decision. In our view, since administrative review of the Committee decision was timely requested, CPLR article 78 review by this Court of that decision is not permitted (see, id.). Indeed, this Court reached this very conclusion in Saunders (supra) and again when it denied petitioner's motion to stay the Review Board proceedings. Accordingly, proceeding No. 1 is dismissed.

PROCEEDING NO. 2

Upon review of the Review Board's determination, we reject petitioner's threshold contention with regard to specifications 1 through 5 that, under principles of res judicata, his 1995 stipulation precluded the Bureau from pursuing professional misconduct charges against him pursuant to Education Law § 6530 (9) (c) and (40) for withholding the records of patients A through D, or demanding excessive fees therefor. Notably, petitioner admitted in that 1995 stipulation—as charged in the Notice of Hearing and Statement of Charges dated October 14, 1994—that he violated Public Health Law § 18 with regard to patients A through D and waived his right to a hearing on those charges. That DOH agreed to terminate those 1994 Public Health Law § 18 charges "with prejudice" merely precluded DOH from thereafter refiling identical charges under Public Health Law § 18, and indeed the Bureau did not impermissibly do so. Rather, in 1998 the Bureau pursued professional misconduct charges pursuant to Education Law § 6530 which were not precluded by the terms of the stipulation under principles of res judicata.

The first specification charged petitioner with misconduct under Education Law § 6530 (9) (c) based upon his admission of guilt by stipulation to violating a State statute, i.e., Public Health Law § 18. There is no question that in that stipulation he admitted to violating Public Health Law§ 18 as alleged in the 1994 charges, which supports the Committee's and the Review Board's findings that he violated Education Law § 6530 (9) (c), thereby committing professional misconduct as charged in the first specification (see, Matter of Carloni v DeBuono, 245 AD2d 970; Matter of Caselnova v New York State Dept. of Health, 235 AD2d 864, revd on other grounds 91 NY2d 441; Matter of Jayaram v Ambach, 145 AD2d 838; Matter of Sasson v Commissioner of Educ., 127 AD2d 875; cf., Matter of Becker v DeBuono, 239 AD2d 664, 665). His contention that his stipulation only constituted an admission that "his office" violated Public...