Moss v. Chassin

• Decision Date: 23 November 1994
• Citation: 618 N.Y.S.2d 931,209 A.D.2d 889
• Parties: In the Matter of Gerald MOSS, Petitioner, v. Mark R. CHASSIN, as Commissioner of the State of New York Department of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 931

618 N.Y.S.2d 931

209 A.D.2d 889

In the Matter of Gerald MOSS, Petitioner, v. Mark R. CHASSIN, as Commissioner of the State of New York

Department of Health, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Nov. 23, 1994.

Gleason, Dunn, Walsh & O'Shea (Thomas F. Gleason, of counsel), Albany, for petitioner.

G. Oliver Koppell, Atty. Gen. (Mark G. Peters, of counsel), New York City, for respondents.

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

WHITE, Justice.

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.

In March 1989 and in October 1991, petitioner, a licensed physician who is internationally recognized as an expert in the field of enteral nutrition, was interviewed by the Office of Professional Medical Conduct (hereinafter OPMC) regarding its investigation of petitioner's treatment of five patients (hereinafter patients A, B, C, D and E) between 1983 and 1986. Thereafter, in August 1992, OPMC filed 10 specifications of professional misconduct against petitioner. Following a hearing, a Hearing Committee of the State Board of Professional Medical Conduct (hereinafter the Hearing Committee) found that petitioner was guilty of gross negligence in regard to his treatment of patients A, C and D; practicing medicine with negligence on more than one occasion with respect to his treatment of patients A, C and D; and failure to maintain adequate medical records relative to patients A, B, C and E. Based on these findings, the Hearing Committee determined that petitioner's license to practice medicine should be limited to consultation to the exclusion of all other types of medical practice. OPMC and petitioner appealed to the Administrative Review Board for Professional Medical Conduct (hereinafter the Review Board). It sustained the Hearing Committee's findings but overruled the penalty it had levied, imposing instead the penalty of revocation of petitioner's license. Petitioner then commenced this CPLR article 78 proceeding.

As part of his challenge to the Review Board's determination, petitioner has raised several arguments under the rubric of denial of due process. The first is that his due process rights were violated by OPMC's delaying until 1992 to issue the charges against him. This argument is unavailing unless petitioner can show that he sustained actual prejudice as a result of the delay (see, Matter of Cortlandt Nursing Home v. Axelrod, 66 N.Y.2d 169, 180, 495 N.Y.S.2d 927, 486 N.E.2d 785, cert. denied 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655; Matter of Matala v. Board of Regents of Univ. of State of N.Y., 183 A.D.2d 953, 583 N.Y.S.2d 575; Matter of Rojas v. Sobol, 167 A.D.2d 707, 563 N.Y.S.2d 284, lv. denied 77 N.Y.2d 806, 568 N.Y.S.2d 914, 571 N.E.2d 84). Petitioner claims that the delay had an adverse impact upon him since the pathologist who performed the autopsy on patient A died before the hearing and certain records relating to patients B and D had been lost. We disagree since the pathologist's testimony regarding the cause of patient A's death would have had little relevance to the charge that petitioner had inappropriately discharged her from the hospital following her operation and that he had inadequately evaluated and treated her thereafter (compare, Matter of Sharma v. Sobol, 188 A.D.2d 833, 591 N.Y.S.2d 572). Likewise, the information purportedly contained in the lost documents would have had a minimal impact on the hearing. Thus, we find that petitioner has not sustained this argument.

Petitioner's next argument is that he was denied a fair hearing because the doctors who conducted the interview, afforded him under Public Health Law § 230(10)(a)(iii), were biased. He further argues that the Hearing Committee was biased because its Chair was acquainted with OPMC's expert witness. Merely alleging bias is not enough to set aside an administrative determination (see, Matter of Jeremias v. Sander, 177 A.D.2d 488, 575 N.Y.S.2d 1019). Instead, there must be a factual demonstration supporting the allegation and proof that the outcome flowed from it (see, Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 834, 546 N.Y.S.2d 335, 545 N.E.2d 625; Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 N.Y.2d 186, 197, 440 N.Y.S.2d 875, 423 N.E.2d 352).

Here, there is no proof that the doctors' alleged bias infected the Hearing Committee or the Review Board, thereby disabling those bodies from hearing and deciding this matter on the basis of the evidence presented at the hearing (see, B.A.M. Brokerage Corp. v. State of New York, 718 F.Supp. 1195). Nor did petitioner establish that the integrity of the Hearing Committee was compromised by its Chair's acquaintance with OPMC's expert witness since he did not come forward with proof overcoming the presumption of honesty and integrity which is accorded to members of administrative bodies (see, Matter of Rine v. City of Sherrill, 195 A.D.2d 961, 600 N.Y.S.2d 592, lv. denied 82 N.Y.2d 660, 605 N.Y.S.2d 6, 625 N.E.2d 591; Matter of Amarnick v. Sobol, 185 A.D.2d 485, 586 N.Y.S.2d 356; Matter of Reisner v. Board of Regents of Univ. of State of N.Y., 142 A.D.2d 22, 535 N.Y.S.2d 197). For these reasons, we find that petitioner was not denied due process on the ground that he was denied an impartial hearing.

Petitioner urges us to apply the holding of Matter of McBarnette v. Sobol, 83 N.Y.2d 333, 610 N.Y.S.2d 460, 632 N.E.2d 866, to this case in light of the denial of his request to examine OPMC's files so he could ascertain the first date upon which it had considered charges against him. We decline to do so since the record discloses that petitioner was not seeking the requested...