| Matter of Shapiro v Administrative Review Bd. of the State Bd. forProfessional Med. Conduct |
| 2010 NY Slip Op 01856 [71 AD3d 1241] |
| March 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Stephen M. Shapiro,Petitioner, v Administrative Review Board of the State Board for Professional MedicalConduct, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Barbara K. Hathaway of counsel),for respondent.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c [5]) to review a determination of respondent which revokedpetitioner's license to practice medicine in New York.
Petitioner, a psychiatrist licensed to practice in New York, was charged by the Bureau ofProfessional Medical Conduct (hereinafter BPMC) with several specifications of misconduct asdefined in Education Law § 6530 in relation to his care and treatment of two patients, awife and husband, patient A and patient B, respectively. Subsequently, a Hearing Committee ofthe State Board for Professional Medical Conduct conducted a hearing pertaining to the charges.The evidence revealed that petitioner began treating patient B in 1996 for depression and bipolardisorder. After patient B felt that his wife, patient A, might benefit from therapy for herdepression, petitioner met with the couple jointly in March 1997 at his home office, allegedlywithout explaining the potential conflict of interest involved in treating a husband and wife.Thereafter, petitioner treated them both, but at separate appointments. According to patient A,she became infatuated with petitioner shortly after her treatment began and shared those feelings[*2]with him. Petitioner's medical records for patient A inNovember 1997 and January 1998 reflect that patient A had, among other things, "[t]houghts andfantasies" about him. Patient A testified that, shortly after Valentine's Day in 1998, she andpetitioner began a sexual relationship that continued until June 2005. She testified that petitionercontinued treating her until 2000,[FN*]even though he stopped charging her for sessions. In his testimony, petitioner denied having asexual relationship with patient A.
After the close of proof, the Hearing Committee sustained five of the charged specificationsof misconduct, namely, sexual conduct with a patient, moral unfitness to practice medicine, grossnegligence, negligence on more than one occasion and failure to maintain accurate records.These conclusions principally stemmed from the findings that petitioner had engaged in along-term sexual affair with patient A and both patient A and patient B were put at risk becauseof "the lack of informed consent for treatment of both spouses." The Hearing Committeeunanimously determined that petitioner's license to practice medicine should be revoked.Petitioner appealed the determination to respondent with the exception of the charge ofinadequate medical records. Respondent confirmed the determination in all respects, resulting inthe commencement by petitioner of this CPLR article 78 proceeding.
Inasmuch as the Hearing Committee's determination has been reviewed by respondent, thisCourt's review is "limited to ascertaining whether [respondent's determination] was arbitrary andcapricious, affected by error of law or an abuse of discretion" (Matter of Sidoti v State Bd. forProfessional Med. Conduct, 55 AD3d 1162, 1164 [2008] [internal quotation marks andcitations omitted]; see Matter ofSundaram v Novello, 53 AD3d 804, 807 [2008], lv denied 11 NY3d 708[2008]). Notably, respondent's "determination will not be disturbed if it has a rational basis andis factually supported" (Matter of Arnettv New York State Dept. of Health, 69 AD3d 1001, 1002 [2010] [internal quotationmarks and citations omitted]).
Contrary to petitioner's argument, we find no basis to conclude that, in sustaining thechallenged specifications of misconduct, respondent was irrational in relying upon the credibilityfindings of the Hearing Committee. Notably, the testimonies of both patient A and patient Bwere evaluated by the Hearing Committee and, despite the fact that they both suffered frompsychiatric disorders, were found to be both credible and reliable (see generally Matter ofMorrison v DeBuono, 255 AD2d 710, 711 [1998]). Patient A gave detailed testimonyconcerning petitioner's physical characteristics and scars. She also described the specifics of thelayout of the private areas of petitioner's home, which were consistent with the observations of aBPMC investigator. The Hearing Committee also found credible the corroborating testimony oftwo friends of patient A who testified on behalf of the BPMC. They indicated that they learnedof the affair almost from its inception, with one of them providing cover stories for patient A soshe could rendezvous with petitioner without giving patient B cause to be suspicious.
In contrast, the Hearing Committee found that petitioner was not credible. The HearingCommittee noted that, although petitioner "claimed that he could not have sexual relations with[p]atient A, because he was physically unable to perform," pharmacy records showed heprescribed [*3]numerous doses of Viagra for himself during theyears 2000 to 2003. Additionally, the Hearing Committee heard a recording of an October 2005voice mail message that petitioner left for patient A wherein he identified himself as "Steve" andthen, in a tone described by the Hearing Committee as "intimate [and] familiar," stated that he"couldn't not talk to [her]" and suggested meeting for coffee and conversation in case she"decide[d] that it might be fun." Although petitioner testified that he called patient A because hehad some medical literature he wanted to share with her, the recording, which was provided tothis Court, does not mention anything about medical literature. Under all the circumstances, wefind no basis to disturb respondent's reliance on the Hearing Committee's resolution of credibilityissues in favor of the BPMC's witnesses, nor its final determination (see Matter of Lugo vNew York State Dept. of Health, 306 AD2d 766, 767 [2003]; see also Matter of Smith v New York StateDept. of Health, 66 AD3d 1144, 1146-1148 [2009]).
Next, we are unpersuaded that the penalty of revocation of petitioner's medical license was"so disproportionate to the offense that it is shocking to one's sense of fairness" (Matter of Cohen v New York State Dept.of Health, 65 AD3d 791, 793 [2009]). Along with its findings that petitioner lied underoath and failed to appropriately address patient A's infatuation with him and its psychiatricimplications, the Hearing Committee found revocation appropriate given, among other things,petitioner's conduct in engaging in a sexual affair with a vulnerable psychiatric patient while atthe same time treating her husband for a psychiatric condition. As this Court has notedpreviously, "improper sexual contact by a physician toward patients . . . [is] aviolation of the fundamental trust in a doctor for which revocation is the appropriate penalty" (Matter of D'Angelo v State Bd. forProfessional Med. Conduct, 66 AD3d 1154, 1157 [2009] [internal quotation marks andcitations omitted]). Thus, we cannot conclude that respondent erred in confirming the HearingCommittee's decision to revoke petitioner's license to practice medicine.
Finally, the remaining issues raised by petitioner, including his claim that certain challengedrulings and remarks by the Administrative Law Judge presiding over the hearing were soprejudicial that they "permeated the underlying proceeding sufficiently to render it unfair"(Matter of Lauersen v Novello, 293 AD2d 833, 835 [2002]), have been examined andfound to be lacking in merit.
Peters, Spain, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote *: Patient B testified that hevoluntarily ceased treatment with petitioner in May 2000 because he felt his internist couldhandle his medications. His wife told him about the affair with petitioner in the fall of 2005.