Park v. Board of Regents of University of State of N.Y.

• Decision Date: 28 December 1995
• Citation: 222 A.D.2d 946,634 N.Y.S.2d 896
• Parties: In the Matter of John H. PARK, Petitioner, v. BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 896

634 N.Y.S.2d 896

222 A.D.2d 946

In the Matter of John H. PARK, Petitioner, v. BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 28, 1995.

Offermann, Cassano, Pigott & Greco (Francis J. Offermann, Jr., of counsel), Buffalo, for petitioner.

Dennis C. Vacco, Attorney-General (Raymond J. Foley, of counsel), New York City, for respondents.

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

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law former § 6510-a [4] to review a determination of respondent Commissioner of Education which, inter alia, suspended petitioner's license to practice medicine in New York for a period of five years.

In 1983, the State Board for Professional Medical Conduct (hereinafter the Board) charged petitioner, an ophthalmologist, with professional misconduct, including charges of gross negligence, gross incompetence and practicing medicine fraudulently, stemming from his treatment of five patients. A hearing was held, after which the Hearing Committee voted to sustain a number of the charges, and recommended that petitioner's license be revoked and that he be fined. Upon review, the Regents Review Committee (hereinafter RRC) recommended, inter alia, that several of the specifications, including those relating to patient BBB (which are the only charges at issue in this proceeding), be remanded to the Hearing Committee for further proceedings. Particularly, the RRC directed that notes made by an investigator in connection with his interviews of Kenneth Klementowski and Donald Yung, two of the Board's expert witnesses (which notes petitioner maintains constitute Rosario-type material [see, Matter of Inner Circle Rest. v. New York State Liq. Auth., 30 N.Y.2d 541, 543, 330 N.Y.S.2d 389, 281 N.E.2d 183], be made available to petitioner (or, if confidentiality was claimed, that they be provided for in camera review by the Hearing Officer), and that petitioner be afforded an opportunity to further cross-examine those experts and patient BBB.

Approximately two years after the RRC's issuance of its decision remanding the matter, the Board requested that additional hearings be scheduled. Notwithstanding earlier representations made by the attorney formerly handling the case for the Board--who, in the interim, had become disabled and unavailable to testify--that he possessed the investigator's notes, the Board's new counsel informed petitioner that "[n]o such documents ever existed". A hearing was held, outside the presence of the Hearing Committee, at which the investigator testified that he had never made the notes in question, and other Board employees testified as to what had happened to the case files during the intervening two years. The Hearing Officer, after finding that petitioner had not demonstrated that the witnesses he sought to call could contribute any relevant information, closed the hearing and found that the notes never existed.

Petitioner was unable to conduct further cross-examination of patient BBB because the Board's attorney refused to recall her to the stand, due to her advanced age and refusal to testify again. And, although petitioner initially sought to make use of the additional opportunity to cross-examine Klementowski and Yung, and a hearing was scheduled for that purpose, petitioner later elected to forego that opportunity, contending at the time that, inasmuch as the expert testimony previously presented was insufficient on its face to support the charges, further cross-examination "would be superfluous". Petitioner now asserts that he declined to cross-examine these doctors, in part, because of the Hearing Officer's refusal to order that the investigator's notes be produced.

The hearing was then closed, and the Hearing Committee--two members of which had been replaced since the Committee's previous vote--unanimously sustained the charges with respect to patient BBB, and again proposed that petitioner's license be revoked. When this matter reached the RRC, despite its holding that the testimony of patient BBB had to be disregarded in its entirety due to her inability to return for cross-examination, the RRC nevertheless sustained the specifications charging petitioner with gross negligence and gross incompetence in connection with his diagnosis of cataracts in patient BBB and his recommendation that she undergo corrective surgery therefor. These charges were found to be amply supported by the testimony of the Board's expert witnesses and that of petitioner himself, and by the pertinent medical records.

Apropos of the investigator's notes, the RRC rejected the Hearing Officer's conclusion that the notes never existed, but found that they had become unavailable. However, it went on to find that petitioner had not proven that the notes actually contained any statements made by the doctors--as opposed to the investigator's impressions or strategy, or administrative matters such as scheduling and the like--or that they related to patient BBB. This, coupled with...