| Matter of Kosich v New York State Dept. of Health |
| 2008 NY Slip Op 02056 [49 AD3d 980] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Martin O. Kosich, Petitioner, v New York StateDepartment of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Amy Held of counsel), forrespondents.
Kane, 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 Board forProfessional Medical Conduct which revoked petitioner's license to practice medicine in NewYork.
The Bureau of Professional Medical Conduct charged petitioner, a physician practicing inGreene County, with 20 specifications of misconduct in relation to his treatment of nine patients.During the hearing before a Hearing Committee of respondent State Board for ProfessionalMedical Conduct, respondent Department of Health (hereinafter DOH) presented the experttestimony of Irene Snow as to petitioner's care of three patients. DOH then successfully moved toamend the specifications by withdrawing charges concerning three patients and adding a factualallegation that petitioner "inappropriately prescribed methadone" to four patients. TheAdministrative Law Judge (hereinafter ALJ) also granted DOH's request to add Bruce Maslack asan expert to testify regarding petitioner's treatment of those four patients. At the conclusion ofDOH's case, petitioner represented that he would have a witness available the next day but couldnot state who that witness would be. The next day, which was Election Day, petitioner informedthe ALJ and the Hearing Committee that he had no witnesses available [*2]due to the state holiday or for various, unenumerated reasons. Healso did not have a witness available for the next scheduled date later that same week. Afterpetitioner could not confirm when he would have a witness available, the ALJ closed theevidence, finding that the hearing dates were set nearly a month earlier, petitioner had adequatetime to make witnesses available and the amendment of the specifications did not justify anydelay in preparing or procuring witnesses.
The Hearing Committee sustained the charges of practicing medicine with negligence onmore than one occasion and practicing medicine with incompetence on more than one occasionwith respect to six patients, and dismissed the remaining charges. Based upon these findings, theHearing Committee revoked petitioner's license to practice medicine. Both petitioner and DOHappealed to the Administrative Review Board for Professional Medical Conduct (hereinafterARB). The ARB affirmed the Hearing Committee's determinations upholding charges, butadditionally found that petitioner was guilty of the charges of gross negligence and grossincompetence as to one patient. The penalty of license revocation was upheld. Petitionerthereafter commenced this proceeding seeking to annul the ARB's determination, alleging a hostof procedural and evidentiary errors. Finding none of those arguments persuasive, we confirm.
Petitioner was not deprived of his rights to a fair hearing and due process. The statement ofcharges was adequate because it set forth the substance and material facts of the allegedmisconduct, so as to provide petitioner with fair notice of the charges and the ability to prepare adefense (see Public Health Law § 230 [10] [b]; Matter of Block v Ambach,73 NY2d 323, 332 [1989]; Matter of Steckmeyer v State Bd. for Professional Med.Conduct, 295 AD2d 815, 816 [2002]; Matter of Chua v Chassin, 215 AD2d 953, 956[1995], lv denied 86 NY2d 708 [1995]). Contrary to petitioner's assertions, in thisadministrative proceeding he was not entitled to all of the due process rights afforded a defendantin a criminal proceeding (see Matter of Block v Ambach, 73 NY2d at 332-333;Matter of Steiner v DeBuono, 239 AD2d 708, 710 [1997], lv denied 90 NY2d808 [1997]).
The ALJ did not err in permitting DOH to amend its statement of charges while the hearingwas pending because there was no substantial prejudice to petitioner (see 10 NYCRR51.6; Matter of Kole v New York State Educ. Dept., 291 AD2d 683, 685 [2002];Matter of Major v Board of Regents of Univ. of State of N.Y., 160 AD2d 1041, 1043[1990], lv denied 76 NY2d 705 [1990]). The withdrawal of charges concerning threepatients favored petitioner. The addition of a specification alleging inappropriately prescribingmethadone was not a surprise, as the original charges included specifications alleging that hefailed to appropriately manage the methadone or detoxification programs for the same fourpatients. Petitioner stated in his witness disclosure—which was submitted months prior tothe amendment—that he intended to call an expert in addiction treatment, evidencing alack of surprise and his ability to prepare for the additional specification. Based upon the similarnature of these added specifications, petitioner was not substantially prejudiced by theamendment of DOH's pleading (see 10 NYCRR 51.6).
The ALJ acted within his discretion in permitting DOH to present testimony of a secondexpert (see 10 NYCRR 51.8 [b] [2], [3]). The Hearing Committee is not bound bytraditional rules of evidence (see Public Health Law § 230 [10] [f]; Matter of Sookhu v Commissioner ofHealth of State of N.Y., 31 AD3d 1012, 1013 [2006]). Parties in revocation proceedingshave only a limited right to disclosure of, among other things, the names of witnesses to be called(see 10 NYCRR 51.8 [b] [1] [i]; Matter of Singla v New York State Dept. ofHealth, 229 AD2d 798, [*3]800 [1996], lv denied 89NY2d 809 [1997]). While petitioner contends that his defense was impaired by not havingMaslack's name from the beginning, petitioner had approximately a month between the time thatthe ALJ granted DOH's motion to present Maslack and the first day that he testified. On the otherhand, petitioner's witness list stated that he would call three experts, all of whom were to bedetermined; in fact, he never disclosed names of any experts. Under the circumstances, the ALJacted within his discretion and petitioner was not prejudiced by the inclusion of this expert.
Similarly, the ALJ did not abuse his discretion in denying an adjournment and closing thehearing when petitioner had no witnesses available on the previously-scheduled final day of thehearing (see Matter of Singla v New York State Dept. of Health, 229 AD2d at 800;cf. Matter of Sunnen v Administrative Rev. Bd. for Professional Med. Conduct, 244AD2d 790, 792 [1997], lv denied 92 NY2d 802 [1998]). On the day before the final day,petitioner stated that he would have a witness present at the hearing the next day. Approximatelyone week prior to the final day, petitioner presented numerous subpoenas for witnesses, whichthe ALJ signed. Petitioner did not have a legitimate excuse as to why subpoenas were notpresented at an earlier date. While he contended that the state holiday on Election Day interferedwith some witnesses' attendance, petitioner disclosed a list of more than 40 potential witnessesmonths earlier. On the final day, he did not name any particular witness nor did he provide aspecific reason why that witness was unavailable that day, or for the next scheduled hearing datelater that week. Even on the final day, petitioner could not definitively state when his witnesseswould be available to testify, only providing assurances that one witness would be available thefollowing week. In this situation, the ALJ acted appropriately in denying an adjournment.
Unlike the constitutional right to confrontation in criminal actions, parties in administrativeproceedings have only a limited right to cross-examine adverse witnesses as a matter of dueprocess (see Matter of Gordon v Brown, 84 NY2d 574, 578 [1994]; Matter of Sookhuv Commissioner of Health of State of N.Y., 31 AD3d at 1014). Contrary to petitioner'scontention, DOH never stipulated that petitioner could recall Snow to cross-examine herconcerning reports of the patients she did not testify about. Petitioner's counsel extensivelycross-examined Snow based upon her testimony and reports which addressed that testimony. Wedo not find that the ALJ abused his discretion in limiting petitioner's cross-examination of Snowon matters that were not relevant to her testimony and upon which petitioner could and didcross-examine Maslack, who testified about those patients (see Matter of Friedel v Board ofRegents of Univ. of State of N.Y., 296 NY 347, 352-353 [1947], remittitur amended297 NY 585 [1947]; Matter of Yoonessiv State Bd. for Professional Med. Conduct, 2 AD3d 1070, 1072 [2003], lvdenied 3 NY3d 607 [2004]). This finding is especially appropriate considering that DOHattempted to withdraw Snow's reports that did not concern her testimony, but petitioner refusedto agree to the withdrawal.
Petitioner received a fair hearing despite the absence of some panel members from portionsof the hearing. Substitution of a new Hearing Committee member was appropriate when onemember withdrew for personal reasons (see Public Health Law § 230 [10] [f]). Thenew member and another member who missed portions of the hearing submitted affidavitsaverring that they read the transcripts of any missed testimony, permitting them to make aninformed decision (see Public Health Law § 230 [10] [f]; Matter of Shafer vBoard of Regents of State of N.Y., 243 AD2d 838, 839 [1997], cert denied 525 US948 [1998]; Matter of Laverne v Sobol, 149 AD2d 758, 761 [1989], lv denied 74NY2d 610 [1989]).[*4]
Regarding the merits, we may only disturb the ARB'sdetermination if it was arbitrary, capricious, affected by an error of law or an abuse of discretion(see Matter of Steckmeyer v State Bd. for Professional Med. Conduct, 295 AD2d at 817;Matter of Bottros v DeBuono, 256 AD2d 1034, 1035-1036 [1998]). "In other words, theARB's decision must have a rational basis and be factually supported" (Matter of Buckner v State Bd. forProfessional Med. Conduct, 7 AD3d 840, 841 [2004] [citations omitted]; see Matter of Tulier-Pastewski v State Bd.for Professional Med. Conduct, 13 AD3d 918, 919 [2004]). Credibility determinations,including concerning the weight and qualifications of expert witnesses, are matters solely withinthe province of the administrative factfinder (see Matter of Forester v State Bd. for Professional Med. Conduct, 36AD3d 1127, 1128 [2007], lv denied 8 NY3d 812 [2007]; Matter ofTulier-Pastewski v State Bd. for Professional Med. Conduct, 13 AD3d at 919; Matter ofCohen v Mills, 271 AD2d 826, 827 [2000]). The Hearing Committee properly drew anadverse inference against petitioner due to his failure to testify, even if his silence was predicatedupon his 5th Amendment privilege against self-incrimination due to fear of prosecution related tothe death of one of his patients (see Matter of Steiner v DeBuono, 239 AD2d at 710-711).Considering DOH's presentation of petitioner's medical records and testimony of two expertwitnesses who were found "qualified and credible," without any evidence presented onpetitioner's behalf, we will not disturb the ARB's determination.
The record does not support petitioner's allegations that the ALJ was biased or actedimproperly (see 10 NYCRR 51.17 [a]; Matter of Maglione v New York State Dept. of Health, 9 AD3d522, 523 [2004]; Matter of Goldsmith v DeBuono, 245 AD2d 627, 631 [1997]). Wehave reviewed petitioner's remaining contentions and found them unpersuasive.
Cardona, P.J., Carpinello, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.