| Matter of D'Angelo v State Bd. for Professional Med.Conduct |
| 2009 NY Slip Op 07536 [66 AD3d 1154] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carmen D'Angelo, Petitioner, v State Board forProfessional Medical Conduct, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Seth J. Farber 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 a Hearing Committee of respondentwhich revoked petitioner's license to practice medicine in New York.
A Hearing Committee of respondent sustained 28 of 48 charges of professional misconductagainst petitioner, a physician licensed to practice internal medicine in New York, involvingeight specific patients (hereinafter patients A through H). The sustained charges were engagingin conduct that evidences moral unfitness to practice medicine (see Education Law§ 6530 [20]), engaging in conduct that willfully harasses, abuses or intimidates a patient(see Education Law § 6530 [31]), practicing medicine with gross negligence(see Education Law § 6530 [4]), practicing medicine with negligence on morethan one occasion (see Education Law § 6530 [3]), and failing to maintainaccurate medical records (see Education Law § 6530 [32]). Based on thesefindings, the Hearing Committee determined that petitioner's license to practice medicine shouldbe revoked (see Public Health Law § 230 [10] [c]-[h]). Petitioner thereaftercommenced this proceeding challenging that determination. We now confirm.
Our review of the Hearing Committee's determination is limited to assessing whether it [*2]is supported by substantial evidence (see Matter of Tsirelman v Daines, 61AD3d 1128, 1129 [2009]). Here, petitioner challenges only the Hearing Committee'sfindings of misconduct stemming from his alleged consensual sexual relationships with patientsA and H.[FN1]Further, he does not dispute the existence of a physician-patient relationship with either womanor that he commenced a sexual relationship with patient H while she was a patient.[FN2]Although petitioner denied a sexual relationship with patient A, her contrary testimony created acredibility determination within the province of the Hearing Committee to resolve (seeid. at 1129; Matter of Sidoti v StateBd. for Professional Med. Conduct, 55 AD3d 1162, 1165 [2008]). Patient A'stestimony, moreover, was corroborated by evidence of gifts and cards given to her by petitionerand sexually explicit e-mail correspondence between the two.
Indeed, petitioner's primary argument does not challenge the factual underpinnings of theHearing Committee's findings. Instead, petitioner argues that—unlike a psychiatrist(see Education Law § 6530 [44])—he cannot be penalized for havingconsensual sexual relations with a patient. We have repeatedly rejected this argument (seeMatter of Barad v State Bd. for Professional Med. Conduct, 282 AD2d 893, 895 [2001];Matter of Selkin v State Bd. for Professional Med. Conduct, 279 AD2d 720, 721-722[2001], appeal dismissed 96 NY2d 823 [2001], lv denied 96 NY2d 928 [2001]);Matter of Miller v Commissioner of Health for State of N.Y., 270 AD2d 584, 585[2000]), specifically holding that although "the Legislature has expressly proscribed 'anyphysical contact of a sexual nature' between a psychiatrist and his or her patient, the absence of acorollary proscription in the practice of all other areas of medicine does not ipso facto constituteapproval by the Legislature" (Matter of Miller v Commissioner of Health for State ofN.Y., 270 AD2d at 585, quoting Education Law § 6530 [44]). Petitioner urges thisCourt to overrule this precedent, asserting that his constitutionally guaranteed liberty interestwhich protects his right to marriage encompasses a right to activities related to marriage andcourtship, including—astoundingly—the right to engage in extramarital sexualrelationships with his patients. We are unpersuaded that our interpretation of the Legislature'sintent, undisturbed now for over nine years, was in error. We adhere to our precedent that anyphysician who engages in a sexual relationship with a patient whom he or she is activelytreating, at a minimum, bears scrutiny for moral unfitness due to the potential for abuse of theconfidential relationship between doctor and patient (see e.g. Matter of Barad v State Bd. forProfessional Med. Conduct, 282 AD2d at 895; Matter of Selkin v State Bd. forProfessional Med. Conduct, 279 AD2d at 722).
Petitioner also asserts that the Hearing Committee erred in essentially applying a per seprohibition against sexual contact between a nonpsychiatrist physician and patient. He argues[*3]that where the relationship is consensual, some additionalevidence revealing exploitation of a vulnerable patient is necessary to find that a physician ismorally unfit to practice medicine. Even were we to agree that a physician could ever ethicallycommence a sexual relationship with a current patient (but see Matter of Cowan v Mills, 34 AD3d 1166, 1168 [2006] ["aphysical therapist is morally unfit when he or she engages in any sexual relationship, eitherconsensual or nonconsensual, with a patient during a therapist-patient relationship"]), on thisrecord, ample evidence exists that petitioner's relationship with patient A, though consensual,involved exacerbating circumstances clearly warranting a finding of misconduct. Indeed,petitioner admitted that he knew that patient A suffered from depression and was in need ofpsychiatric treatment and, further, that her psychological condition made her more susceptible tomanipulation and the potential harm that could flow from a relationship with her treatingphysician of over 10 years. He also admitted that patient A confided in him about maritalproblems and her e-mail correspondence reflects the voice of a troubled, extremely vulnerablewoman. Finally, petitioner's sexual relationship with patient H—also commenced whileshe was a patient—reflects a pattern of behavior evincing a failure to respect the trust andconfidence placed in him by his patients and a blindness to the potential consequences of hisconduct. Under these circumstances, we find the Hearing Committee's determinations to beamply supported by the specific facts of this case (see Matter of Lugo v New York StateDept. of Health, 306 AD2d 766, 767 [2003]; Matter of Barad v State Bd. for ProfessionalMed. Conduct, 282 AD2d at 895).
In making the foregoing arguments, petitioner also challenges the penalty imposed by theHearing Committee—revocation of his medical license. "The well-settled standard ofreview of a challenge to the penalty imposed by the [Hearing Committee] is whether the penaltyis 'so disproportionate to [the] conduct as to shock one's sense of fairness' " (Matter of Kleinplatz v Novello, 46AD3d 1134, 1135 [2007], quoting Matter of Ostad v New York State Dept. of Health, 40 AD3d 1251,1253 [2007]). "This Court has repeatedly found improper sexual contact by a physician towardpatients to be a violation of the fundamental trust in a doctor for which revocation is theappropriate penalty" (Matter of Finelli v Chassin, 206 AD2d 717, 719 [1994] [citationomitted]; see Matter of Cowan v Mills, 34 AD3d at 1168). Accordingly, we find thatpetitioner's sexual misconduct, combined with the unchallenged findings of neglect and improperrecord keeping, support the penalty imposed by the Hearing Committee (see Matter ofCowan v Mills, 34 AD3d at 1168; Matter of Reddy v State Bd. for Professional Med.Conduct, 259 AD2d 847, 850 [1999], lv denied 93 NY2d 813 [1999]).
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote 1: Petitioner does not challengeany of the determinations of misconduct relating to patients B, C, D, E, F and G. Indeed, therecord contains unrefuted evidence of negligence, gross negligence and failure to maintainproper records, in the form of expert testimony, medical records and patient testimony.
Footnote 2: Patient H is petitioner's currentfianceÉ and employee who involuntarily testified before the Hearing Committee. Sheadmitted that she and petitioner, her physician for 13 years, began their romantic relationship inthe spring of 2005 and she shortly thereafter sought out another primary physician.