Case Information
‐ ‐ cv v. Daines In the
United States Court of Appeals
For the Second Circuit
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A UGUST T ERM , A RGUED : A PRIL D ECIDED : J ULY No. cv
G ARY T SIRELMAN , M.D.,
Plaintiff Appellant , R ICHARD F. D AINES , M.D., Commissioner Health, S TATE OF N EW Y ORK D EPARTMENT OF H EALTH K ENDRICK A. S EARS , M.D., Chairman Board Professional Medical Conduct, S TATE OF N EW Y ORK D EPARTMENT OF H EALTH S TATE B OARD FOR P ROFESSIONAL
M EDICAL C ONDUCT T HEIR E MPLOYEES A GENTS Defendants Appellees. ________
Appeal United States District Court Eastern District York. 1:10 – Jack B. Weinstein, Judge .
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clerk court directed amend caption set forth above. ‐ ‐
Before: W INTER W ALKER , D RONEY , Circuit Judges .
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Plaintiff Gary Tsirelman’s medical license was revoked a New York disciplinary proceeding. On appeal, he challenges New York’s use of preponderance ‐ of ‐ ‐ evidence standard such proceedings a violation of Due Process Clause. Because we hold Constitution does not require higher standard medical disciplinary proceedings, we AFFIRM court’s order dismissing complaint.
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A DAM F RANCOIS W ATKINS Watkins Bradley LLP, New York, NY, for Plaintiff Appellant .
K AREN W. L IN (Claude S. Platton, Barbara D. Underwood, Solicitor General New York, brief ), Eric T. Schneiderman, Attorney General New York, New York, NY, Defendants Appellees.
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J OHN M. W ALKER J R ., Circuit Judge :
Plaintiff Gary was revoked York proceeding. On appeal, challenges New York’s use standard such proceedings violation Due Process Clause. Because hold Constitution does require higher based medical proceedings, AFFIRM court’s order dismissing complaint.
BACKGROUND
Gary Tsirelman became licensed practice medicine In he acquired ownership interest LaMed clinic (“LaMed”). While practicing LaMed, performed synaptic therapy, a non invasive, drug free treatment consisting electrical impulses administered areas causing patient pain. Flatlands Management, contractor who assembled LaMed’s bills, however, billed insurance companies for a nerve destruction procedure when performed synaptic therapy, for which no billing codes existed. Synaptic therapy not form nerve destruction procedure. State York Office Professional Medical
Conduct (“OPMC“) charged with practicing medicine fraudulently, willfully making or filing false report, ordering excessive tests or treatments warranted patient’s condition, therefore engaging conduct evidenced moral unfitness practice medicine. OPMC charges bills nerve destruction procedures never performed. After six day hearing, Hearing Committee Board Professional Medical Conduct (the “Hearing Committee”), which consisted two licensed physicians, one lay *4 4 No. 14 2154 member, and non voting administrative law judge presider, sustained 51 69 charges professional misconduct. The Hearing Committee found, by evidence, that Tsirelman knew that bills were being sent his signature for procedures that he did perform and that he allowed such bills sent own benefit. In re 07 269, at 43 (N.Y. Bd. Prof. Med. Conduct Dec. 5, 2007), J.A. 234. Hearing Committee revoked and fined him $100,000. Id. 52, J.A. filed an Article proceeding York state
court seeking review Hearing Committee’s determination. April 2009, Appellate Division affirmed Hearing Committee’s principal findings and held “the Committee could infer [Tsirelman’s] knowledge bills were false, rather than merely inaccurate, and had willfully intended mislead and deceive insurer.” v. Daines N.Y.S.2d (App. Div. 3d Dep’t 2009). The Appellate Division affirmed both penalties. Id.
On March 1, 2010, Tsirelman filed action federal district court (Jack B. Weinstein, Judge ), alleging defendants, the New York commissioner health, chairman the state board for professional conduct, and their agencies, violated his rights conduct his hearing. Defendants moved to dismiss or, alternative, for abstention. On October 14, 2010, district court granted defendants’ motion for abstention to permit Tsirelman to petition director OPMC to reopen his case light intervening amendment to New York’s Public Health Law. The district court stayed action pending petition. filed motion for reconsideration with director OPMC. The director denied motion. Thereafter, moved reopen his federal action, defendants
renewed motion dismiss lack subject matter jurisdiction failure claim. On May court granted motion dismiss York Department Health Board Professional Medical Conduct under the Eleventh Amendment. doing so, the district court implicitly denied that portion motion concerning defendants Daines Sears, who were sued their official capacities. However, district court also concluded Tsirelman’s complaint failed state claim under Due Process Clause. Accordingly, district court granted defendants’ motion dismiss, timely appealed.
DISCUSSION argues defendants denied him conduct hearing by employing standard. Before turning merits arguments, however, we address defendants’
argument complaint must dismissed against individual defendants they are protected from suit Eleventh Amendment.
We review de novo district court’s dismissal lack subject matter jurisdiction under Rule 12(b)(1) or failure claim Rule 12(b)(6). Jaghory N.Y. Dep ʹ t Educ. 1997). Like court, “accept all factual allegations complaint true draw inferences those allegations light most favorable plaintiff.” Id.
I. Eleventh Amendment Immunity Eleventh Amendment provides: *7 7 14 2154
The Judicial power the United States shall not construed extend any suit in law or equity, commenced or prosecuted against one United States by Citizens another State, or by Citizens or Subjects any Foreign State. Supreme Court has consistently interpreted Eleventh Amendment bar suits brought against an unconsenting state federal courts “by her own citizens well by citizens another State.” Edelman Jordan , U.S. 651, (1974). Because is citizen York who brought suit against New York officials their official capacities, defendants argue suit is nonjusticiable Eleventh Amendment. We reject this contention suit seeks prospective relief against state officials official capacities, which permitted notwithstanding general proscription suits against states by Eleventh Amendment. Ex parte Young Supreme Court held Eleventh Amendment did bar action federal court enjoin state official from taking official action claimed violate federal law. U.S. (1908); see also Edelman U.S. at 664. Under doctrine, federal courts may hear claims prospective injunctive relief, see Edelman U.S. at but retroactive claims seeking monetary damages state treasury are barred Eleventh Amendment because, even if state officials are nominal defendants, real party interest, id.
Tsirelman’s complaint seeks an injunction restoring status quo unless and until conducts a new hearing and establishes charges based a clear and convincing standard. Defendants characterize claim as seeking purely retrospective relief because Tsirelman is trying remedy a past violation his due process rights that occurred during his disciplinary hearing.
Contrary defendants’ contentions, complaint seeks prospective relief he requests a remedy an alleged ongoing violation federal law. Tsirelman claims York’s rule permitting medical misconduct using a violates due that, a result, he is unconstitutionally being denied his medical license. As remedy, seeks an injunction requiring either reinstatement or hearing that, his view, comports with process. Either outcome would remedy alleged injury would “prospective relief is barred Eleventh Amendment.” Dwyer Regan 1985) (public employee’s request reinstatement or hearing sought prospective injunctive relief). Therefore, affirm ‐ ‐ court’s denial of Daines’s and Sears’s motion to dismiss pursuant to the Eleventh Amendment.
II. Due Process Challenges We turn now to the merits of appeal. makes two separate but related challenges New York’s use of preponderance of ‐ ‐ evidence standard: (a) facial challenge standard used all fraud based medical disciplinary proceedings, (b) applied challenge use of standard own proceeding.
a. Facial Challenge
New York’s misconduct committees base conclusions statutorily prescribed preponderance of ‐ standard. N.Y. Pub. Health L. § 230(10)(f). argues York’s use preponderance standard fails comport with minimum requirements due ‐ proceedings compelling private public interests avoiding erroneous revocations. contends only higher clear convincing standard comports with process. standard constitutionally adequate.
“The function . . . instruct factfinder concerning degree confidence our society thinks should have correctness factual conclusions particular type *10 10 14 2154 adjudication.” Addington v. Texas , 441 U.S. 418, 423 (1979) (internal quotation marks omitted). “The standard serves allocate risk error between litigants and indicate relative importance attached ultimate decision.” Id . To determine standard proof required by Constitution, we balance: (1) “the private interests affected proceeding”; (2) “the risk error created by State’s chosen procedure”; and (3) “the countervailing governmental interest supporting use challenged procedure.” Santosky v. Kramer , 455 U.S. 745, 754 (1982) (citing Mathews v. Eldridge , U.S. 319, (1976)). strikes proper balance between these competing interests.
First, physicians have important, but compelling, property interest their licenses and a liberty interest pursuing chosen profession. See Donk v. Miller F.3d (2d Cir. 2004); RRI Realty Corp. v. Inc. Vill. Southhampton n.4 1989). However, if physician loses his license, remains free pursue other employment otherwise participate life’s activities. For reason, find physician’s interest be less compelling than those interests Supreme Court has determined require clear convincing before can effect deprivation. Compare Addington U.S. at (civil commitment proceedings must conducted least clear convincing standard), with Vance ‐ ‐ Terrazas U.S. (1980) (abandonment of citizenship proceedings may conducted a preponderance standard). also argues that a physician’s interest a fraud ‐ based medical disciplinary hearing is more substantial than other proceedings resulting reputational harm can extend beyond medical field. This distinction is unpersuasive. A license revocation based incompetence, sexual impropriety, or another serious charge would also tend taint a physician’s other future endeavors. any event, even if accepted argument that physicians have a greater interest fraud based revocation proceedings, interest still does rise fundamental level requires application a heightened standard a matter federal process. See Herman & MacLean Huddleston U.S. (1983) (preponderance standard applied securities fraud case despite “the risk opprobrium may result finding fraudulent conduct”).
Second, “fairly distributes risk error” between state physician. Santosky U.S. corresponding consequences error physician license revocation are roughly equivalent. If doctor’s license is erroneously revoked, should be, but not, allowed practice medicine. If doctor’s erroneously maintained, he should not be, but is, allowed to continue to practice. Thus, “social disutility” each potential outcome about same, it is not general more serious for to be erroneously revoked than to be erroneously maintained. See re Winship U.S. (1970) (Harlan, J., concurring).
Third, countervailing governmental interest strong. State, on behalf public, has substantial interest revoking licenses doctors who engage fraud or are otherwise found unfit practice medicine. See Doe Connecticut 1996) (per curiam). Although recognizes interest, argues that revocations do not further it they do target physicians providing substandard care. But conception focuses only one State’s many healthcare interests. New York has interest ensuring its citizens receive adequate care they have access care. Fraudulent insurance claims drive up costs health insurance everyone, making it difficult some New Yorkers afford quality healthcare, thus limiting access care. Moreover, major consumer healthcare through insurance programs operated State, York has direct interest affordable care. *13 13 14 ‐ 2154 ‐
In sum, while we acknowledge physician’s interest maintaining license, the State has at least as substantial an interest protecting the public, and the cost of error is about the same. Thus, we find no constitutional basis exempting fraud ‐ based medical disciplinary proceedings the traditional powers of state legislatures prescribe standards of state proceedings. [4] See Vance , 444 U.S. at 265; s ee also In re Friedman , 51 F.3d 20, 22 (2d Cir. 1995) (holding federal court may constitutionally impose reciprocal attorney discipline based underlying state disciplinary proceeding conducted preponderance of evidence standard). Accordingly, affirm court’s dismissal of facial challenge State’s use proceedings. [5] No. ‐ ‐ b. As ‐ Applied Challenge
Finally, turn to Tsirelman’s claim that, even if use of the preponderance of the evidence not on its face unconstitutional, its use case violated due process as applied to him of limited evidence from which the Hearing Committee could infer fraudulent intent.
Tsirelman’s as applied challenge requires us consider particular facts of his case determine whether application of standard, although constitutional on its face, deprived him of protected right. See, e.g. , Field Day, LLC v. Cty. of Suffolk 167, 2006). hearing did deviate normal hearing
procedures any material respect. In any event, details necessary position, that evidence hearings will necessarily be unreliable unless governed formal rules evidence. See United States Salerno U.S. 739, (1987) (to sustain facial challenge, “the challenger must establish no set circumstances exists which Act would valid.”).
Likewise, has failed allege any facts suggesting lack formal rules evidence resulted an as applied violation. Hearing Committee expressly acknowledged certain gaps evidentiary record afforded benefit doubt any claims which “there was even slight possibility” additional information might have bolstered position. re J.A. And, noted above, Appellate Division annulled entire subset charges which it concluded additional might have proven exculpatory.
hearing show application of preponderance standard did deprive Tsirelman of due process it did not unacceptably increase risk error. As Appellate Division has already concluded, there was ample which Hearing Committee could infer Tsirelman’s fraudulent intent, including discrepancies between patient records bills LaMed submitted insurers, as well as Tsirelman’s “complete lack” credible testimony. Tsirelman v. Daines N.Y.S.2d Tsirelman also availed himself robust procedures permitted York’s hearings, including representation counsel, presentation evidence, witness testimony, cross ‐ examination State’s witnesses. Finally, obtained review Hearing Committee’s determination Article proceeding.
In sum, there nothing exceptional about hearing rendered Hearing Committee’s use unconstitutional applied Tsirelman. essence, asks us reevaluate Hearing Committee’s findings, but guarantees only fair hearing, which received full. See Conopco, Inc. Roll Int’l 2000). Accordingly, court’s dismissal ‐ applied challenge affirmed.
CONCLUSION
For foregoing reasons, judgment AFFIRMED.
[1] An Article proceeding “provide[s] expeditious essentially uniform procedure judicial review . . . action (or inaction) agencies officers local government.” Finley Giacobbe 1996) (omission original) (internal quotation marks omitted).
[2] Appellate Division annulled Hearing Committee’s finding had ordered treatment warranted patients’ conditions.
[3] Defendants also argue lacks standing seek requested injunction because, no longer doctor, there is no reasonable prospect will again find himself subject proceedings. This argument assumes outcome defendants’ favor therefore without merit.
[4] We recognize conclusion conflicts with conclusions supreme courts Oklahoma, Washington, and Wyoming. See Johnson v. Bd. Governors Registered Dentists, 913 P.2d 1339, 1347 (Okla. 1996); Nguyen v. , P.3d 689, 697 (Wash. 2001); Painter v. Abels , 998 P.2d (Wyo. 2000). so holding, Oklahoma Wyoming Supreme Courts explicitly recognized constitutions can afford greater due process safeguards than Federal Constitution. Johnson P.2d 1346; Painter P.2d at
[5] We have also considered facial as applied challenges absence formal rules evidence find them without merit. “[P]rocedural does require rigid adherence technical evidentiary rules administrative hearings, long introduced reliable.” United States Int ʹ l Bhd. Teamsters 1991). There no support inference,