762 N.Y.S.2d 660 | N.Y. App. Div. | 2003
Proceedings pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review two determinations of the Administrative Review Board for Professional Medical Conduct which, inter alia, suspended petitioner’s license to practice medicine in New York for six months and denied his motion for reconsideration.
In October 1999, the Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner with specifications of professional misconduct alleging moral unfitness, willful patient abuse and fraudulent practice, all arising from his treatment and purported sexual relationship with patient A. Following a hearing, a Hearing Committee of the State Board for Professional Medical Conduct (hereinafter Committee) specifically credited the testimony of patient A over that of petitioner and sustained a single charge of moral unfitness. The Committee thereafter suspended petitioner’s license to practice medicine for a period of five years, said suspension to be stayed after one month. Subsequently, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) affirmed the Committee’s findings and conclusions, but overturned the Committee’s penalty and suspended petitioner’s license for six months. Petitioner commenced the first of the subject CPLR article 78 proceedings to challenge the ARB’s determination. Thereafter, petitioner moved for a motion seeking reargument, renewal and recusal of the Administrative Law Judge (hereinafter ALJ) who presided over the Committee, which motion was denied. Consequently, petitioner commenced a second CPLR article 78 proceeding seeking review of that denial.
Initially, we note that in reviewing the ARB’s determination, our inquiry is whether it is arbitrary and capricious, affected
While petitioner strenuously denies having an affair with patient A and has produced a letter from her indicating that the business dinner in question was her idea, these issues created questions of credibility which the Committee and the ARB were free to resolve in favor of the BPMC (see Matter of Alexander v State Bd. for Professional Med. Conduct, 287 AD2d 918, 920 [2001]). Given the findings that a consensual sexual relationship occurred in this case, the Committee and the ARB had the authority to further conclude that petitioner’s role in the affair constituted moral unfitness (see Matter of Selkin v State Bd. for Professional Med. Conduct, 279 AD2d 720, 721-722 [2001], appeal dismissed 96 NY2d 823 [2001], lv denied 96 NY2d 928 [2001]; Matter of Miller v Commissioner of Health for State of N.Y., 270 AD2d 584, 585 [2000]). Based upon this record, we cannot say that the ARB’s determination was irrational.
Next, petitioner objects to the Committee’s refusal to credit a report in his favor by psychiatrist Gene Abel that was generated upon the Committee’s request and concluded, based upon, inter alia, the results of a polygraph test, that “the weight of the evidence does not support [petitioner] being involved in professional sexual misconduct with [patient A].” Although Abel never met patient A, he expressed concern over her perceived emotional state and questioned her credibility and
Our review of the record discloses the existence of misunderstandings and miscommunications concerning the purpose of the report and the role of petitioner’s counsel. Nevertheless, the fact remains that “credibility issues are to be exclusively determined by the administrative factfinder” (Matter of Pearl v State Bd. for Professional Med. Conduct, 295 AD2d 764, 765 [2002], lv denied 99 NY2d 501 [2002]) and there is simply no basis to mandate a conclusion that the Committee was bound to accept Abel’s findings as to petitioner’s truthfulness (see Matter of Hason v Department of Health, 295 AD2d 818, 822 [2002]; Matter of St. Lucia v Novello, 284 AD2d 591, 593 [2001]; Matter of Wahba v New York State Dept. of Health, 277 AD2d 634, 635 [2000]). Thus, we cannot say on this record that the ARB abused its discretion in accepting the Committee’s determination in reference to Abel’s report. Moreover, even accepting petitioner’s contention that the Committee erred in indicating that his counsel’s communications with Abel were not appropriate, we cannot conclude that the alleged errors “resulted in prejudice which so permeated the hearing as to render it unfair” (Matter of Sanchez v New York State Dept. of Health, 293 AD2d 837, 838 [2002]).
Petitioner’s remaining arguments, including his claim that his motion for reconsideration was improperly denied, have been reviewed and found to be unpersuasive.
We note that, at the time the report was admitted into evidence, the ALJ offered both counsel the opportunity to have independent evaluations by their own psychiatrists. Petitioner’s counsel declined.