Tsirelman v. Daines, No. 10–CV–0903.

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: JACK B. WEINSTEIN, Senior District Judge
• Citation: 19 F.Supp.3d 438
• Parties: Gary TSIRELMAN, M.D., Plaintiff, v. Richard F. DAINES, M.D., Commissioner of Health, New York State Department of Health; and New York State Department of Health; and Kendrick A. Sears, M.D., Chairman of the State Board For Professional Medical Conduct, New York State Department of Health, and State Board For Professional Medical Conduct and their employees and agents, Defendants.
• Docket Number: No. 10–CV–0903.
• Decision Date: 13 May 2014

19 F.Supp.3d 438

Gary TSIRELMAN, M.D., Plaintiff
v.
Richard F. DAINES, M.D., Commissioner of Health, New York State Department of Health; and New York State Department of Health; and Kendrick A. Sears, M.D., Chairman of the State Board For Professional Medical Conduct, New York State Department of Health, and State Board For Professional Medical Conduct and their employees and agents, Defendants.

No. 10–CV–0903.

United States District Court, E.D. New York.

Signed May 13, 2014.
Filed May 14, 2014.

19 F.Supp.3d 442

Adam Francois Watkins, Clifford Y. Chen, Watkins, Bradley & Chen LLP, New York, NY, Julia Paskalova, Esq., Gary Tsirelman P.C., Brooklyn, NY, for Plaintiff.

Erick T. Schneiderman, Attorney General of the State of New York by Kathryn E. Leone New York, NY, for Defendants.

MEMORANDUM, ORDER & JUDGMENT

JACK B. WEINSTEIN, Senior District Judge:

I.	Introduction	442
II.	Background	443

A.	New York State Public Health Law § 230	443
B.	Plaintiff's Disciplinary Hearing	444
C.	Plaintiff's State Court Appeal	445
D.	Plaintiff's Subsequent Applications to Department	446

III. Standard of Review 446

A.	Rule 12(b)(6) Failure to State Claim	446
B.	Rule 12(b)(1) Lack of Subject Matter Jurisdiction	447

IV. Law 447

A.	Facial vs. As–Applied Challenges	447
B.	Procedural Due Process	448
C.	Preclusion	448

V. Application of Law to Fact 449

A.	Claims against Agency Defendants Dismissed	449
B.	Challenge to Preponderance Standard	449

1.	Facial Challenge	449
2.	As–Applied Challenge	452

C. Challenge to Evidentiary Rules 452

1.	Facial Challenge	452
2.	As–Applied Challenge	453

D. Challenge to Rules Governing Reconsideration 453

1.	Facial Challenge	454
2.	As–Applied Challenge	454

VI. Conclusion 456

I. Introduction

Plaintiff Gary Tsirelman's license to practice medicine was revoked by the State of New York. He alleges due process violations. See 42 U.S.C. §§ 1983 and 1988. He claims: (1) the preponderance evidentiary standard required at revocation hearings and the imposition of a fine were unconstitutional; (2) the lack of specific evidentiary rules violates due process; and (3) due process requires an automatic mechanism for reconsideration of changes in the law designed to improve fairness in the administrative process.

Defendants Richard F. Daines, M.D., Commissioner of Health, New York State Department of Health; New York State Department of Health; Kendrick A. Sears, M.D., Chairman of the State Board for Professional Medical Conduct, New York State Department of Health; and State Board for Professional Medical Conduct and their employees and agents (“defendants”) move for dismissal of the complaint.

19 F.Supp.3d 443

See Fed.R.Civ.P. 12(b)(1) and (6). They maintain that plaintiff's facial and as-applied challenges are meritless. They argue that federal precedents support a preponderance standard, and that New York courts have consistently upheld the preponderance standard in physician disciplinary proceedings.

There is considerable force to plaintiff's position that a physician, after years of training and developing skills, should not be driven from practice on less than an overwhelming probability that he was guilty of serious misconduct demonstrated with the most meticulous procedural protections. On balance the state's policy, based on the need for the public's protection from cheating physicians who add to the high costs of medical care—even if their curative treatment is effective—requires strict enforcement with procedures that provide only reasonable, rather than the highest, protections. In the instant case, the procedures utilized in revoking plaintiff's medical license resulted in an adequate demonstration that he was cheating regularly in his billings.

The New York physician disciplinary proceedings comports with due process and plaintiff's as-applied challenges are insufficient. The motion to dismiss the complaint is granted.

II. Background

This action arises from a determination by the New York State Department of Health (“Department”), based on charges of professional misconduct, revoking plaintiff's medical license and imposing a $100,000 fine. The detailed procedural history and factual background of this case is incorporated in the present memorandum. See Tsirelman, M.D. v. Dairies, M.D. et al., 10–CV–0903, ECF No. 32 (E.D.N.Y. Oct. 14, 2010).

A. New York State Public Health Law § 230

New York State Public Health...