Smith v. State Bd. for Prof'l Med. Conduct

• Decision Date: 12 March 2015
• Docket Number: 517999
• Citation: 4 N.Y.S.3d 757,126 A.D.3d 1144,2015 N.Y. Slip Op. 02027
• Parties: In the Matter of Barlow SMITH, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1144

4 N.Y.S.3d 757

2015 N.Y. Slip Op. 02027

In the Matter of Barlow SMITH, Petitioner

v.STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT et al., Respondents.

517999

Supreme Court, Appellate Division, Third Department, New York.

March 12, 2015.

Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York City (James Hershler of counsel), for respondents.

Before: PETERS, P.J., ROSE, EGAN JR. and CLARK, JJ.

Opinion

CLARK, J.

Proceeding 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 revoked petitioner's license to practice medicine in New York.

Petitioner, a board-certified psychiatrist, resides in Texas but has been licensed to practice medicine in New York since 1967. In February 2013, the Bureau of Professional Medical Conduct initiated a referral proceeding against petitioner based upon disciplinary actions taken against him in Texas. Specifically, the Texas Medical Board found in 2009 that petitioner had engaged in a sexual relationship with a patient. Pursuant to an agreed order, petitioner was publicly reprimanded for his conduct and directed to both successfully complete a course in professional boundaries and pay an administrative penalty of $3,000. The Texas Medical Board further found in 2011 that petitioner had failed to maintain adequate medical records for four of his patients, and he consented to an order directing him to successfully complete continuing medical education courses related to medical recordkeeping.

Petitioner admitted that the actions set forth in the 2011 order constituted professional misconduct under New York law, but argued that the actions that gave rise to the 2009 order did not because they involved a former patient. Following an expedited referral hearing before a Hearing Committee of respondent State Board for Professional Medical Conduct—a hearing at which he elected not to personally appear—petitioner was found guilty of misconduct based upon both orders. Noting that he had twice been disciplined and had failed to express remorse for his actions, the Hearing Committee determined that revocation of petitioner's license was an appropriate penalty. Respondent Administrative Review Board for Professional Medical Conduct (hereinafter ARB) affirmed, and petitioner commenced this proceeding seeking to vacate the ARB's determination.

We confirm. “Inasmuch as the Hearing Committee's determination was reviewed by the ARB, our review is limited to ascertaining whether the ARB's determination was arbitrary and capricious, affected by error of law or an abuse of discretion” (Matter of Harron v. Daines, 74 A.D.3d 1529, 1531, 902 N.Y.S.2d 253 [2010] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Singh v. New York State Dept. of Health Bd. of Professional Med. Conduct, 74 A.D.3d 1391, 1392, 903 N.Y.S.2d 181 [2010] ). Petitioner was charged with violating Education Law § 6530(9)(b) and (d), both of which permit a finding of professional misconduct based upon disciplinary actions in other jurisdictions involving behavior “that, if undertaken in New York, would amount to professional misconduct under New York law” (Matter of D'Ambrosio v. Department of Health of State of N.Y., 4 N.Y.3d 133, 139, 791 N.Y.S.2d 63, 824 N.E.2d 494 [2005] ; see Matter of Harron v. Daines, 74 A.D.3d at 1531–1532, 902 N.Y.S.2d 253 ).

Petitioner asserts that the conduct leading to the 2009 order did not constitute misconduct in New York because Education Law § 6530(44) prohibits “any physical contact of a sexual nature between licensee and patient,” but does not expressly preclude a sexual relationship with a former patient. While that argument is a dubious one, it is not one we need to resolve, as the ARB determined that a physician-patient relationship existed at the time the sexual relationship occurred. The Texas Medical Board found that petitioner saw the patient primarily...