| Matter of Smith v New York State Dept. of Health |
| 2009 NY Slip Op 07532 [66 AD3d 1144] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of John William Smith, Petitioner, v New York StateDepartment of Health, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (James M. Hershler of counsel), forrespondent.
Spain, 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.
The Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner, aphysician practicing in New York City who specialized in plastic surgery, with six specificationsof professional misconduct based upon allegations of inappropriate conduct while examining twofemale patients, patients A and B. With respect to patient A, the amended charge was that whileshe was being examined for ongoing treatment for a lip laceration in February 2005, petitionertouched her breasts and nipples without any legitimate medical purpose, under the guise ofperforming a medical examination. An audiotape was admitted into evidence of a telephone callthe following day, arranged by an Assistant District Attorney from New York County, frompatient A to petitioner; during the call, in response to her questions to him about the incident,[*2]petitioner admitted touching her breasts and nipples butclaimed he had done so as part of a required test for sensitivity related to her alleged inquiryabout a tummy tuck procedure. He also admitted to hugging her and grabbing her, andapologized. Petitioner, in his answer and testimony at the hearing, admitted touching patient A'sbreasts for nipple sensation, but claimed that he did so only after she inquired about breastaugmentation and consequential loss of sensation, an explanation not offered during the phoneconversation. The medical experts called by petitioner and BPMC were unanimous that there isno medical reason to touch a patient's breasts in an evaluation for a tummy tuck, which petitionerconceded at the hearing, and that nipple sensation would only be evaluated for breastaugmentation surgery. Petitioner's medical records for patient A do not reflect that she inquiredabout breast augmentation, that he performed a full breast examination, that petitioner took amedical history necessary for such a procedure or that he recorded any result regarding hispurported sensitivity test or advised her about the risks.
With respect to patient B, the charge was that in 2002, while patient B was being examinedby petitioner in the hospital emergency room prior to her admission for gall bladder surgery byanother physician, petitioner asked about her medications. Upon learning that she was taking aparticular psychiatric medicine, petitioner remarked with words to the effect that "you're notgoing to get horny if you continue with this medication" and "your husband is going to leaveyou." Later, petitioner entered patient B's hospital room, sat close to her on the bed and, withouta medical purpose, told her he needed to examine her nipples. Patient B testified that she refusedand shielded herself when petitioner attempted to touch her breasts, which she promptly reportedto family members, her surgeon and the hospital. Petitioner denied any inappropriate remarks toor examination of patient B. He testified that patient B asked him in the emergency room if hermedicine could affect sex and, after motioning him into her hospital room, asked if they couldcause nipple pain, whereupon he asked her if she would like him to examine her breasts, whichshe declined, and he did not touch her. Patient B denied making any such inquiries of petitioner.
After a hearing held over the course of several months in 2007 before a Hearing Committeeof the State Board for Professional Medical Conduct, the Hearing Committee sustained all of thecharges and suspended petitioner's license until July 1, 2008, placed him on five years ofprobation and limited his license to require a chaperone's presence during all patient interactions,and directed that he attend training. Petitioner and BPMC appealed, and the AdministrativeReview Board for Professional Medical Conduct (hereinafter ARB) sustained the charges, butmodified the penalty by revoking petitioner's license. Petitioner commenced this proceedingseeking to annul the ARB's determination and, given that we find no merit to his contentions, weconfirm.
Upon review of the record, we do not find that petitioner was denied either due process or afair hearing. The tape recorded conversation between patient A and petitioner—in whichhe admitted and attempted to justify touching her nipples—was properly admitted inevidence, as its authenticity and accuracy were established by clear and convincing evidence thatit was "genuine and that there has been no tampering with it" (People v McGee, 49NY2d 48, 59 [1979], cert denied 446 US 942 [1980]; see People v Ely, 68 NY2d520, 527 [1986]). The foundation for the admission of the tape was provided by the testimony ofthe Assistant District Attorney who witnessed the conversation and was subject tocross-examination, and petitioner conceded that it was his voice on the tape, which was anaccurate recording.[*3]
Despite his contentions, it cannot be said that petitionerwas denied the right to cross-examine patient A, who did not in fact testify despite BPMCserving two subpoenas on her and repeatedly attempting to secure her presence at the hearing;petitioner did not himself ever subpoena patient A (see Public Health Law § 230[10] [c] [4]; State Administrative Procedure Act § 304 [2]; CPLR 2308 [b]; see also Matter of Conteh v Daines, 52AD3d 994, 996 [2008]). To the extent that petitioner's real objection is to the admission ofpatient A's hearsay statements recorded on the tape, "the Hearing Committee is not bound bytraditional rules of evidence" (Matter ofKosich v New York State Dept. of Health, 49 AD3d 980, 982 [2008], appealdismissed 10 NY3d 950 [2008]; see Public Health Law § 230 [10] [f]).Notably, petitioner was not entitled to the same due process rights afforded to criminaldefendants and hearsay is admissible; petitioner had only a limited due process right tocross-examine adverse witnesses (see Matter of Gordon v Brown, 84 NY2d 574, 578[1994]; Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983). Hewas given great leeway in impeaching patient A's credibility despite the fact that she did nottestify. Given that it was petitioner's own admissions, apologies and explanations during therecorded conversation that furnished the inculpatory evidence against him, and his admission atthe hearing that he had engaged in the charged conduct, although for a belatedly offered andundocumented medical reason, his claim that he was denied due process is unavailing (seeMatter of Gordon v Brown, 84 NY2d at 578; Matter of Chatelain v New York State Dept. of Health, 48 AD3d943, 944 [2008]).
Likewise, we are not persuaded by petitioner's argument that the proceedings were "indeliblytainted" by the opening statement of BPMC's counsel, which referenced an allegation containedin the original statement of charges that petitioner had touched patient A's genitals without alegitimate medical purpose. The original charges were still pending at that time, and thatparticular allegation—supported by patient A's interview with a nurseinvestigator—was later withdrawn by BPMC only when patient A failed to appear at thehearing to testify.[FN*]The amended charges, which deleted this allegation, were filed in August 2007 during the courseof the hearing, and petitioner makes no claim that the amendment itself, which was in his favor,was improper (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at982). We find no merit to his claim that counsel's references caused substantial prejudice,particularly given that the withdrawn allegation was not raised during the hearing and there is noindication in the record that the Hearing Committee or the ARB were influenced by it.
Finally, petitioner apparently also challenges the adequacy of the evidence supporting theARB's determination. Mindful that "[c]redibility determinations, including concerning theweight and qualifications of expert witnesses, are matters solely within the province of theadministrative factfinder" (id. at 984), we find that the ARB's decision is neitherarbitrary or capricious nor affected by error of law but, rather, has a rational basis and isfactually supported (see Matter of Conteh v Daines, 52 AD3d at 995-996). Concerningpatient A, the ARB, deferring to the Hearing Committee's factual and credibility findings,concluded that petitioner's own words on the tape and his patient records refuted his testimonialattempt—which the Hearing Committee found to be evasive and to "lack overallcredibility"—to explain his inappropriate conduct toward this patient. As to patient B, whowas found to be "very credible" and "had nothing to gain by reporting the incident," the ARBfound that petitioner's explanations regarding his interaction with this patient "defy logic,common sense and [her] medical history [*4]and medicalrecords." Although other witnesses were called to testify, the ARB concluded that none werepresent during petitioner's interaction with either patient. We do not find that the testimony ofthe nurse's aide who was present in the hospital room attending to another patient duringpetitioner's encounter with patient B, indicating that she did not observe or overhear it, refutespatient B's promptly reported account (see Matter of Wizes v Board of Regents of State of N.Y., 34 AD3d902, 903 [2006]). Petitioner's remaining claims have been reviewed and determined to lackmerit.
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: This particular allegation wasnot discussed during the recorded telephone conversation.