Selkin v. State Bd. Prof'l Med. Conduct

• Decision Date: 14 November 2000
• Citation: 719 N.Y.S.2d 195
• Parties: (A.D. 3 Dept. 2001) In the Matter of STUART G. SELKIN, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent. 85911 Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 195

719 N.Y.S.2d 195 (A.D. 3 Dept. 2001)

In the Matter of STUART G. SELKIN, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

85911

SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT

Calendar Date: November 14, 2000

Decided and Entered: January 11, 2001

Pamela L. Selkin, Melville, for petitioner.

Eliot Spitzer, Attorney-General (Barbara K. Hathaway of counsel), New York City, for respondent.

Before: Cardona, P.J., Mercure, Crew III, Peters and Rose, JJ.

Crew III, J.

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, inter alia, suspended petitioner's license to practice medicine in New York for two years.

In October 1998, the Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner, a board-certified otolaryngologist, with 26 specifications of misconduct including, insofar as is relevant to this proceeding, practicing with negligence on more than one occasion with respect to patients A and C (fifth specification), conduct evidencing moral unfitness to practice medicine based upon petitioner's consensual sexual relationships with patients E, F, G and H (10th through 13th specifications), failing to maintain adequate patient records with respect to patients A and C (24th and 25th specifications) and failing to comply with BPMC's request for certain medical records (26th specification). Following extensive hearings before a Hearing Committee of respondent State Board for Professional Medical Conduct, the Hearing Committee sustained that portion of the fifth specification alleging negligence on more than one occasion as to patients A and C, the 10th and 12th specifications alleging moral unfitness to practice medicine with respect to patients E and G, and the 24th and 25th specifications alleging a failure to maintain adequate patient records with respect to patients A and C. The remaining specifications were dismissed. As to penalty, the Hearing Committee revoked petitioner's license to practice medicine and fined petitioner $20,000 -- $10,000 for failing to maintain appropriate patient records and $10,000 for practicing with negligence on more than one occasion.

BPMC thereafter appealed the Hearing Committee's determination to the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) requesting that the ARB sustain additional specifications of misconduct against petitioner. Petitioner opposed the appeal and argued that the ARB should overturn the Hearing Committee's finding that he engaged in conduct evidencing moral unfitness to practice medicine and, further, that the penalty of revocation was unduly harsh. The ARB sustained the charge of moral unfitness, finding that a consensual sexual relationship between a physician and a patient can constitute conduct that evidences moral unfitness to practice medicine.¹ The ARB also sustained that portion of the 26th specification relating to petitioner's failure to respond to BPMC's request for records for patient F in violation of Education Law § 6530 (28). As to penalty, the ARB sustained the fines imposed by the Hearing Committee, overturned the order revoking petitioner's license to practice medicine, suspended petitioner's license to practice for two years (staying all but three months of such suspension) and placed petitioner on probation for a period of three years. Petitioner thereafter commenced the instant proceeding in this Court seeking to annul the ARB's determination.

Petitioner's primary argument on review is that his status as a nonpsychiatric physician precludes a finding that his decision to engage in consensual sexual relationships with patients E and F, during a period of time when he admittedly was treating such patients, constitutes moral unfitness to practice medicine. This very argument was considered and rejected by this Court in Matter of Miller v Commissioner of Health for State of N.Y. (270 A.D.2d 584). Although distinguishable in some respects from the matter before us, Matter of Miller nonetheless stands for the proposition that the ARB is vested with the authority to determine whether particular acts constitute misconduct within the meaning of the Education Law. Specifically, this Court held:

While the Legislature has expressly proscribed "any...