| Matter of Zahl v Daines |
| 2009 NY Slip Op 04778 [63 AD3d 1314] |
| June 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kenneth Zahl, Petitioner, v Richard F. Daines, asCommissioner of Health, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Raymond J. Foley of counsel), forrespondents.
Mercure, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c [5]) to review a determination of respondent HearingCommittee of the State Board for Professional Medical Conduct which revoked petitioner'slicense to practice medicine in New York.
Petitioner is an anesthesiologist who has been licensed to practice medicine in New Yorksince 1982. Following the 2006 revocation of petitioner's license to practice medicine in NewJersey, the Bureau of Professional Medical Conduct (hereinafter BPMC) commenced a referralproceeding against petitioner pursuant to Public Health Law § 230 (10) (p). BPMCcharged that the conduct giving rise to the finding of guilt and license revocation in New Jerseyconstituted professional misconduct in New York (see Education Law § 6530 [9][b], [d]).[FN*][*2]Specifically, BPMC indicated that the order of the NewJersey State Board of Medical Examiners (hereinafter New Jersey Board) was based uponfindings that petitioner filed Medicare claims for concurrent, overlapping time periods, createdfalse patient records, obtained reimbursement for false personal disability claims, billed andretained double payments for the same services, and failed to maintain good moral character. Atthe conclusion of an expedited hearing, respondent Hearing Committee of the State Board ofProfessional Medical Conduct sustained the charges against petitioner and revoked his license topractice medicine in New York. Petitioner then commenced this proceeding seeking annulmentof the Hearing Committee's determination. We now confirm.
Petitioner argues that the Hearing Committee improperly gave preclusive effect to thedetermination of the New Jersey Board revoking his license. In particular, he maintains that theissues of his intent and state of mind—which impact upon whether the conduct of whichhe was found guilty in New Jersey would also constitute misconduct in New York—werenot fully and fairly litigated in the New Jersey proceeding. We disagree.
This Court has repeatedly held that in a referral proceeding pursuant to Education Law§ 6530 (9), the merits of an out-of-state determination may not be relitigated when "aphysician received notice of the out-of-state charges and a determination was rendered in thatstate on the merits after a full evidentiary hearing at which petitioner was given an opportunity tobe heard and was represented by counsel" (Matter of Bursztyn v Novello, 42 AD3d 596, 598 [2007]; seeMatter of Hason v Department of Health, 295 AD2d 818, 820-821 [2002]; see also Matter of D'Ambrosio vDepartment of Health of State of N.Y., 4 NY3d 133, 140-141 [2005]). Here, petitionerdoes not dispute that he was given the opportunity to fully litigate the New Jersey charges that hecreated false patient records regarding time entries and the participation of otheranesthesiologists who were not actually present, or that he double billed and retained doublepayments from insurance companies for the same professional services. Rather, petitioner assertsthat the New Jersey Board improperly invoked collateral estoppel to rely upon the findings of aMedicare hearing officer regarding improper Medicare claims, as well as findings in a divorceproceeding that he recovered payments on false disability claims (see generally Kosovsky vZahl, 257 AD2d 522, 523 [1999]).
These arguments were raised before the New Jersey Board, which clarified that the findingsregarding improper receipt of disability payments were based upon independent review ofpetitioner's "basic and irrefutable dishonesty," rather than application of collateral estoppel.Regarding the Medicare hearing officer's determination, the New Jersey Board concluded that itwas made after a fair hearing and "addressed the very same conduct which was the subject of thecomplaint before this Board"—i.e., that in submitting 97 Medicare claims for servicesinvolving overlapping treatment time, petitioner engaged in "dishonesty, deception andmisrepresentation." We note that petitioner then sought review of the New Jersey Board'sdecision in the New Jersey courts, which affirmed its findings of fact and, ultimately, the penaltyimposed based upon petitioner's repeated deceitful and fraudulent conduct (In re LicenseIssued to Zahl, 186 NJ 341, 350-351, 354-355, 895 A2d 437, 443, 445-446 [2006]). Underthese circumstances, it cannot be said that petitioner was denied a full and fair opportunity todefend the charges against him or denied his [*3]due processrights either in New Jersey or New York, or that the charges for which the New Jersey Boarddisciplined petitioner would not constitute misconduct in this state (see Matter ofD'Ambrosio v Department of Health of State of N.Y., 4 NY3d at 140-141; Matter ofBursztyn v Novello, 42 AD3d at 598; Matter of Hason v Department of Health, 295AD2d at 821).
Finally, given the pervasiveness of the misconduct herein and petitioner's unwillingness toaccept responsibility, we reject petitioner's argument that the penalty imposed herein was "soincommensurate with the offense as to shock one's sense of fairness" (Matter of Bursztyn vNovello, 42 AD3d at 598 [internal quotation marks and citation omitted]; see Matter of Ross v State Bd. forProfessional Med. Conduct, 45 AD3d 927, 930 [2007], lv denied 10 NY3d 701[2008]). Petitioner's remaining arguments are precluded as either attempts to relitigate the meritsof the New Jersey determination, unpreserved or otherwise lacking in merit (see Matter ofHason v Department of Health, 295 AD2d at 822).
Cardona, P.J., Kavanagh, Stein and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: In cases based solely upon aviolation of Education Law § 6530 (9), testimony and evidence that may be presented tothe Hearing Committee is "strictly limited to [that] relating to the nature and severity of thepenalty to be imposed upon the licensee" (Public Health Law § 230 [10] [p]).