Van Gaasbeek v. Chassin

• Decision Date: 04 November 1993
• Citation: 198 A.D.2d 572,603 N.Y.S.2d 223
• Parties: In the Matter of Gary VAN GAASBEEK, Petitioner, v. Mark R. CHASSIN, as Commissioner of Health of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 223

603 N.Y.S.2d 223

198 A.D.2d 572

In the Matter of Gary VAN GAASBEEK, Petitioner, v. Mark R. CHASSIN, as Commissioner of Health of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 4, 1993.

Thuillez, Ford, Gold & Conolly (Barry A. Gold, of counsel), Albany, for petitioner.

Robert Abrams, Atty. Gen. (Raymond J. Foley, of counsel), New York City, for respondents.

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

MIKOLL, Justice Presiding.

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

Petitioner, an obstetrician-gynecologist, was charged on November 7, 1991 by the Bureau of Professional Medical Conduct of the State Health Department (hereinafter BPMC) with practicing the profession with incompetence on more than one occasion, negligence on more than one occasion, gross incompetence, gross negligence, failure to maintain accurate patient records and practice of the profession fraudulently, with moral unfitness and wilfully making or filing a false report as to patients A through F.

Petitioner was found to have been negligent and incompetent with respect to obstetric treatment of patients D and F and gynecological treatment of patients B and C, to have failed to maintain adequate medical records with respect to patients B, C, D and F, and to have knowingly filed a false statement in a registration application in October 1990 ¹. Petitioner's license to practice in New York was suspended, except to the extent necessary for retraining, until he successfully completes a program of evaluation and retraining after which he shall be on probation for two years under the terms set by the Hearing Committee.

In this proceeding petitioner contends that the charges against him, which were not the subject of a preinvestigatory interview pursuant to Public Health Law § 230(10)(a)(iii), should be dismissed. During the course of the disciplinary hearing and after BPMC had presented its entire direct case, petitioner made a motion to dismiss the charges which were not the subject of preinvestigatory interview pursuant to Public Health Law § 230(10)(a)(iii) (as amended by L.1991, ch. 606, eff. July 26, 1991). The proceeding was conducted pursuant to the Laws of 1991 (ch. 606) (eff. July 26, 1991) in that the amended charges were served in August 1991. He urges that such interviews were a condition precedent to filing charges and are jurisdictional, requiring dismissal for nonconformity.

Public Health Law § 230(10)(a)(iii) provides:

In the investigation of cases referred to an investigation committee, the licensee being investigated shall have an opportunity to be interviewed by the office of professional medical conduct in order to provide an explanation of the issues under investigation. * * * Providing an opportunity for such an interview shall be a condition precedent to the convening of an investigation committee on professional misconduct of the board of professional medical conduct.

The record indicates that petitioner was interviewed in March 1990 concerning treatment of the patients whose treatment is the subject of the instant charges. Such interviews were conducted almost 1 1/2 years before the amendments to Public Health Law § 230(10)(a) became effective. We find petitioner's argument, that because certain charges based on factual allegations contained in paragraphs B.1(a), B.1(b), B.2(b), B.3(b), B.3(c), C.1(b), C.1(c)(i), C.2(a), D.3, D.4, F.2 and F.4(a) were not discussed in the interview and should therefore be dismissed, to be without merit.

The legislative intent in amending Public Health Law § 230 was to expedite the disciplinary process while retaining the licensee's existing due process protections (see, Executive Dept. Mem., 1991 McKinney's Sessions Laws of N.Y., at 2081; see also, Governor's Approval Mem., 1991 N.Y.Legis.Ann., at 332-333). We conclude that the interview to be conducted must only concern the broader issues of the charges and the patients involved without discussing the specific factual charges. Petitioner's right to due process is protected by requiring that the charges themselves be specific (see, Matter of Block v. Ambach, 73 N.Y.2d 323, 332-333, 540 N.Y.S.2d 6, 537 N.E.2d 181). Here, petitioner received a precharge interview which was sufficient. We decline to dismiss the charges.

Petitioner next challenges whether the determination of fraud was supported by the record. As to petitioner's contention vis-a-vis the fraud allegation, i.e., that he had a good-faith basis, namely, the advice of counsel, for stating that his medical privileges had not been restricted or terminated in answer to an inquiry made of him or his registration, for the period of January 1991 to December 1992, despite the fact that monitoring had been imposed upon him at Kingston Hospital in Ulster County, we conclude that the record supports the Hearing Committee's finding of fraud. The Hearing Committee could infer that petitioner intended to deceive the BPMC by his response. He knew that he was being monitored and, despite his counsel's caution to him of the consequences of a negative response in what the lawyer denominated a "grey area", petitioner nonetheless chose to obfuscate the situation. We find that his actions constitute fraud (see, Matter of Sung Ho Kim v. Board of Regents of Univ. of State of...