| Matter of D'Souza v New York State Dept. of Health |
| 2009 NY Slip Op 10004 [68 AD3d 1562] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ivan A. D'Souza, Petitioner, v New York StateDepartment of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Scott J. Spiegelman of counsel), forrespondents.
Rose, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of respondent Administrative ReviewBoard for Professional Medical Conduct which revoked petitioner's license to practice medicinein New York.
A Hearing Committee of the State Board for Professional Medical Conduct sustained 14charges of professional misconduct against petitioner, a physician specializing in obstetrics andgynecology. The charges, which include engaging in conduct that evidences moral unfitness topractice medicine, were based upon petitioner's attempted and actual improper sexual contactwith four of his female patients. Upon petitioner's application for review, respondentAdministrative Review Board for Professional Medical Conduct (hereinafter ARB) sustained thecharges and revoked his license to practice medicine. Petitioner then commenced this CPLRarticle 78 proceeding to annul the ARB's determination.
Inasmuch as this proceeding is to review the determination of the ARB, petitioner'scontention that the Hearing Committee's determination was not supported by substantialevidence is misplaced (see Matter of Maglione v New York State Dept. of Health, 9AD3d 522, [*2]524 [2004]). Rather, review of an ARBdetermination "is limited to whether the decision is arbitrary and capricious, affected by an errorof law or an abuse of discretion," and "our inquiry distills to whether the ARB's determinationhas a rational basis and is factually supported" (Matter of Khan v New York State Dept. ofHealth, 286 AD2d 562, 563 [2001] [internal quotation marks and citations omitted]; seeMatter of Brown v New York State Dept. of Health, 235 AD2d 957, 957-958 [1997], lvdenied 89 NY2d 814 [1997]). Moreover, in reviewing the ARB's determination, "we do notresolve credibility issues or weigh the testimony of expert witnesses, for those issues are solelywithin the province of the administrative factfinder" (Matter of Chua v Chassin, 215AD2d 953, 955 [1995], lv denied 86 NY2d 708 [1995]; see Matter of Brown v NewYork State Dept. of Health, 235 AD2d at 958).
Here, the credited testimony revealed that petitioner had inappropriately kissed and madesexually suggestive comments to two patients, engaged in a sexual relationship with another ofhis patients and, later, after the relationship had ended, asked her to perform oral sex while shewas in a hospital recovering from an operation. He also inappropriately touched the breasts andgenitals of a fourth patient during a gynecological examination. The contrary testimony ofpetitioner and his witness raised credibility issues that the Hearing Committee and, ultimately,the ARB resolved against him (see e.g. Matter of Solomon v Administrative Review Bd. forProfessional Med. Conduct, Dept. of Health, 303 AD2d 788, 789 [2003], lv denied100 NY2d 505 [2003]). Thus, the record provides a rational basis to support the chargessustained here (see Matter of Maglione v New York State Dept. of Health, 9 AD3d at524-525).
Next, petitioner contends that the ARB improperly considered evidence regarding reports ofhis sexual misconduct to others by two of the patients because the reports did not meet the"prompt outcry" exception to the hearsay rule. We cannot agree. Neither the Hearing Committeenor the ARB was bound by the rules of evidence (see Public Health Law § 230[10] [f]; Matter of Smith v New York State Dept. of Health, 66 AD3d 1144, 1147[2009]; Matter of Kosich v New York State Dept. of Health, 49 AD3d 980, 982 [2008],appeal dismissed 10 NY3d 950 [2008]; Matter of St. Lucia v Novello, 284 AD2d591, 593 [2001]), and they could consider hearsay evidence without regard to whether it wouldcome within a recognized exception. We also disagree with petitioner's argument that thepatients' delay in reporting the alleged sexual contact to third parties rendered the reports soinherently unreliable as to preclude their admissibility (see Matter of Sookhu vCommissioner of Health of State of N.Y., 31 AD3d 1012, 1014 [2006]).
Petitioner further argues that the Hearing Committee should have been disqualified as biasedbecause its members expressed sympathy with a patient witness and there was an inappropriate"affinity" between it and the staff who prosecuted the charges against him. To set aside adetermination for purported bias, petitioner must set forth "factual support demonstrating biasand proof that the administrative outcome flowed from such bias" (Matter of Khan v NewYork State Dept. of Health, 17 AD3d 938, 939 [2005]; see Matter of Maglione v NewYork State Dept. of Health, 9 AD3d at 523). Here, the record shows that members of theHearing Committee sympathized with the first witness's unease in testifying about sexualcontact, that one member socialized with an investigator over coffee and that the HearingCommittee chair had an ex parte, e-mail communication regarding scheduling with theprosecutor. The record, however, also shows that when these events were brought to the HearingCommittee's attention, its chair acknowledged the appearance of impropriety, admonished themembers, and found that the contacts with the prosecuting staff did not reflect partiality. Nor canit be said that sympathy for the patients or the prosecutor affected the Hearing Committee'sdetermination because it rejected [*3]the testimony of the firstwitness and did not sustain most of the charges against petitioner (see Matter of Khan v NewYork State Dept. of Health, 17 AD3d at 939-940).
We are also unpersuaded that the penalty of license revocation imposed here is sodisproportionate to petitioner's conduct as to shock one's sense of fairness. Repeated, impropersexual contact by a physician with patients is "a violation of [their] fundamental trust in a doctorfor which revocation is the appropriate penalty" (Matter of D'Angelo v State Bd. forProfessional Med. Conduct, 66 AD3d 1154, 1157 [2009] [internal quotation marks andcitation omitted]; see Matter of Lombardo v DeBuono, 233 AD2d 789, 793 [1996]).
We have considered petitioner's remaining contentions and found them to be equallymeritless.
Mercure, J.P., Spain, Kane and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.