McBarnette v. Sobol

• Decision Date: 20 May 1993
• Citation: 597 N.Y.S.2d 840,190 A.D.2d 229
• Parties: In the Matter of Lorna S. McBARNETTE, as Acting Commissioner of Health of the State of New York, Appellant, v. Thomas SOBOL, as Commissioner of Education of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 840

597 N.Y.S.2d 840

190 A.D.2d 229

In the Matter of Lorna S. McBARNETTE, as Acting Commissioner

of Health of the State of New York, Appellant, v. Thomas SOBOL, as Commissioner of Education of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

May 20, 1993.

Peter J. Millock (Joseph C. Bierman, of counsel), Albany, for appellant.

Lizette A. Cantres (Megan Lesser Levine, of counsel), Albany, for Thomas Sobol, respondent.

Halperin, Klein & Halperin (Jerome R. Halperin and Guy S. Halperin, of counsel), New York City, for John Doe, respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE and CREW, JJ.

YESAWICH, Justice.

Appeal from a judgment of the Supreme Court (Travers, J.), entered August 19, 1992 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Education ordering, inter alia, that an accused physician be afforded the right to cross-examine certain witnesses in an administrative hearing.

A licensed psychiatrist (hereinafter respondent) was charged with misconduct stemming from alleged sexual abuse of several patients. At his disciplinary hearing respondent sought, for purposes of cross-examination, access to complaints which had been filed with the Office of Professional Medical Conduct by the patients who had testified against him. Maintaining that Public Health Law § 230(11)(a) prohibits their disclosure, petitioner refused to produce the complaints. Respondent moved to vacate and annul this determination and, after Supreme Court denied the motion, a divided First Department reversed, holding that the privilege of confidentiality was waived by the witnesses when they testified at the hearing and that respondent's due process right to cross-examine those who testified against him mandated that the statements be turned over (Matter of Doe v. Axelrod, 123 A.D.2d 21, 510 N.Y.S.2d 92, revd. on other grounds 71 N.Y.2d 484, 527 N.Y.S.2d 368, 522 N.E.2d 444). The Court of Appeals did not reach the merits of the case; it held that respondent could not challenge the evidentiary ruling by means of a proceeding sounding in prohibition, as he had attempted to do, but rather must wait and challenge the final agency determination in a CPLR article 78 proceeding.

Before respondent Commissioner of Education issued a final determination, however, he ordered the Department of Health (hereinafter DOH) to produce the complaints for use at a new hearing, prompting petitioner to commence a CPLR article 78 proceeding seeking review of that determination. This court's decision granting a motion to dismiss the petition on the ground that petitioner lacked standing to bring the proceeding was reversed by the Court of Appeals (Matter of Axelrod v. Sobol, 78 N.Y.2d 112, 571 N.Y.S.2d 902, 575 N.E.2d 388) and, following remittal, we dismissed the petition for lack of subject matter jurisdiction without prejudice to petitioner's right to initiate the proceeding in Supreme Court (Matter of Axelrod v. Sobol 80 A.D.2d 905, 580 N.Y.S.2d 533). After petitioner did so, Supreme Court, relying on the rationale set forth by the First Department in Matter of Doe v. Axelrod (supra), dismissed the petition. Petitioner appeals.

On its face, Public Health Law § 230(11)(a) prohibits DOH from turning over the reports. That section unambiguously states that reports of misconduct made to the State Board for Professional Medical Conduct "shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding" (id.). The legislative history and case law reveal several reasons for this absolute confidentiality. First, such a guarantee enables a complainant to act without fear of litigation or other recrimination; because of this the identity of the complainant, as well as the content of the report, is shielded (cf., Chugh v. Axelrod, 151 A.D.2d 999, 1001, 542 N.Y.S.2d 437). And as Justice Fein, writing for the First Department majority, aptly observed in Matter of Doe v. Axelrod (supra, 123 A.D.2d at 30, 510 N.Y.S.2d 92), ensuring the secrecy of the reports also protects the reputation of the accused professional until a final decision is arrived at with respect to the charges. Finally, an ironclad promise of confidentiality cloaks the program with "the appearance of inviolable trust" (Matter of Grattan v. People, 65 N.Y.2d 243, 246, 491 N.Y.S.2d 125, 480 N.E.2d 714), and in so doing serves the State's interest in encouraging voluntary reporting of misconduct (see, Matter of Axelrod v. Sobol, 78 N.Y.2d 112, 115, 571 N.Y.S.2d 902, 575 N.E.2d 388, supra ).

This explicit...