| Matter of Singh v New York State Dept. of Health Bd. of ProfessionalMed. Conduct |
| 2010 NY Slip Op 04669 [74 AD3d 1391] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kirnjot Singh, Petitioner, v New York StateDepartment of Health Board of Professional Medical Conduct,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (George A. Alvarez of counsel), forrespondent.
Garry, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of the Administrative Review Boardfor Professional Medical Conduct which revoked petitioner's license to practice medicine in NewYork.
Petitioner, a physician and spinal surgeon licensed to practice in Indiana and New York, sawa new female patient in Indiana in October 2005. The medical records reveal that uponexamination, petitioner transferred the patient's care to another physician and advised that hecould do nothing else and would see her on an as-needed basis. Later that day, the patientreturned to petitioner's office to discuss a possible employment opportunity involving the patientoffering massage therapy services at a new hospital. She reentered the facility through a backdoor and returned to the examination room, where she and petitioner engaged in a sexualencounter.
The Medical Licensing Board of Indiana conducted disciplinary proceedings in which,among other things, it found the facts set out above, determined that petitioner had committed[*2]misconduct, placed him on indefinite probation, and orderedhim to comply with various requirements, including a continuing education class on patientboundaries. In expedited referral proceedings pursuant to Public Health Law § 230 (10)(p), the Bureau for Professional Medical Conduct (hereinafter BPMC) thereafter chargedpetitioner with two specifications of misconduct, first on the basis of having been found guilty ofimproper professional practice or professional misconduct in Indiana and, second, on having hislicense suspended upon the disciplinary proceeding instituted in Indiana, where the conduct uponwhich both the finding and proceeding were based would have constituted misconduct in NewYork had it occurred here (see Education Law § 6530 [9] [b], [d]).[FN1]Following a hearing at which petitioner appeared without counsel,[FN2]a Hearing Committee of the State Board for Professional Medical Conduct sustained the chargesagainst him and revoked his license to practice medicine in New York. Petitioner appealed to theAdministrative Review Board for Professional Medical Conduct (hereinafter ARB), whichaffirmed the Hearing Committee's determination and upheld the license revocation.
Petitioner commenced this proceeding seeking annulment of the ARB determination,contending that he was deprived of due process because the determination to revoke his licensewas improperly based on uncharged misconduct. The uncharged matters consisted of eightaccusations made against him in Indiana that did not lead to disciplinary proceedings. They werebrought to the attention of the Hearing Committee when petitioner submitted a letter from aphysicians' education organization describing his successful completion of a boundariesviolation course and further mentioning that he had been "forthcoming about eight othercomplaints about him from the past, even though those were dismissed." Members of theHearing Committee inquired about this reference, and petitioner explained the circumstances indetail, including the fact that all of the accusations were either dismissed or not prosecuted.BPMC's counsel then specifically confirmed that petitioner had no record of any otherdisciplinary proceedings. Petitioner contends that the Hearing Committee was improperlyinfluenced by its inquiry and knowledge of these accusations and that the ARB's determinationwas then tainted by reliance on the Hearing Committee's findings.
As petitioner obtained administrative review by the ARB, our review " 'is limited to whetherthe [ARB's] decision is arbitrary and capricious, affected by an error of law or an abuse ofdiscretion,' and 'our inquiry distills to whether the ARB's determination has a rational basis andis factually supported' " (Matter ofD'Souza v New York State Dept. of Health, 68 AD3d 1562, 1563 [2009], quotingMatter of Khan v New York State Dept. of Health, 286 AD2d 562, 563 [2001]). Notably,the ARB's only reference to the alleged prior accusations was set forth in the preliminarynarrative description of the proceedings that had transpired before the Hearing Committee. Fromthe face of—and upon a fair reading of—the document, it appears that the ARBdetermination was properly and exclusively based on the circumstances of petitioner's [*3]encounter with the patient and on the Hearing Committee'sdetermination that his explanation of that incident was not credible. Further, although petitionerclaims that the Hearing Committee's credibility determination was improperly affected by theother accusations, we note that the other accusations were not mentioned in the HearingCommittee's discussion of petitioner's credibility. In the portion where they were mentioned, itwas also specifically noted that the accusations had not led to disciplinary proceedings. In anyevent, credibility determinations by the administrative factfinder "may not be disturbed by thisCourt" (Matter of Maglione v NewYork State Dept. of Health, 9 AD3d 522, 524 [2004]; see Matter of Insler v State Bd. forProfessional Med. Conduct, 38 AD3d 1095, 1098 [2007]; Matter of Bottros vDeBuono, 256 AD2d 1034, 1036 [1998]). Upon review, we do not find that " 'prejudice sopermeate[d] the underlying hearing as to render it unfair' " (Matter of Singh v New YorkState Bd. for Professional Med. Conduct, 235 AD2d 958, 960 [1997], quoting Matter ofJean-Baptiste v Sobol, 209 AD2d 823, 824 [1994]; see Matter of Sidoti v State Bd. for Professional Med. Conduct, 55AD3d 1162, 1166 [2008]; compare Matter of Afif v Commissioner of Educ.Ambach, 134 AD2d 679, 682-683 [1987]).
Petitioner further contends that the penalty imposed upon him was harsh and excessive. Thestandard of review we must accord to penalty determinations in proceedings of this nature is"highly deferential" (Matter of Nisi vNew York State Dept. of Health, 70 AD3d 1211, 1214 [2010]) and, while revocation isundeniably a severe penalty for the conduct at issue here, we do not find that its imposition is "'so incommensurate with the offense as to shock one's sense of fairness' " (Matter of Colvin vChassin, 214 AD2d 854, 855 [1995], quoting Matter of D'Amico v Commissioner ofEduc. of State of N.Y., 167 AD2d 769, 771 [1990]). This Court has repeatedly found that aphysician's sexual misconduct with a patient is "a violation of the fundamental trust in a doctorfor which revocation is the appropriate penalty" (Matter of Finelli v Chassin, 206 AD2d717, 719 [1994]; see e.g. Matter of D'Souza v New York State Dept. of Health, 68 AD3dat 1564; Matter of D'Angelo v State Bd.for Professional Med. Conduct, 66 AD3d 1154, 1157 [2009]; Matter of Cowan v Mills, 34 AD3d1166, 1168 [2006]). While petitioner argues that no such trust was violated because he haddischarged the patient from his care, it was the factfinder's "exclusive province" to determinethat this claim was not credible (Matterof Sookhu v Commissioner of Health of State of N.Y., 31 AD3d 1012, 1014 [2006]).Moreover, the ARB was fully authorized to conclude that petitioner took advantage of thepatient by having sexual contact with her on the same day and in the same place where he hadexamined her hours before, and that his conduct demonstrated moral unfitness to practicemedicine (see Matter of Selkin v State Bd. for Professional Med. Conduct, 279 AD2d720, 721-722 [2001], appeal dismissed 96 NY2d 823 [2001], lv denied 96 NY2d928 [2001]). Finally, although petitioner contends that his conduct was less egregious than thatin other cases in which revocation has been imposed, " 'penalties imposed in other cases areirrelevant because each case must be judged on its own peculiar facts and circumstances' " (Matter of Chatelain v New York StateDept. of Health, 48 AD3d 943, 945 [2008], quoting Matter of Bezar vDeBuono, 240 AD2d 978, 979 [1997]). The ARB's determination will not be disturbed.
Cardona, P.J., Mercure, Spain and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: The issues in such a proceedingare "limited to the nature and severity of the penalty to be imposed upon [petitioner]" (Matter of Kee Yee Shum v Daines, 68AD3d 1503, 1504 n 1 [2009] [internal quotation marks and citation omitted]; seePublic Health Law § 230 [10] [p]).
Footnote 2: Upon inquiry by theAdministrative Law Judge, petitioner advised that he had retained an attorney but chose not tohave him attend, in an attempt to be transparent.