| Matter of Rigle v Daines |
| 2010 NY Slip Op 07838 [78 AD3d 1249] |
| November 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of David A. Rigle, Petitioner, v Richard F. Daines, asCommissioner of Health, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Kathryn E. Leone of counsel), forrespondents.
Lahtinen, 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 Review Boardfor Professional Medical Conduct which revoked petitioner's license to practice medicine in NewYork.
Petitioner, a forensic pathologist, was licensed to practice medicine in New York in 1990 and,since the mid-1990s, he has limited his practice to providing consultation services as a medical expert.He has had several medical conduct issues through the years, including a voluntary temporarysuspension of his medical license in 1991 followed by two years of probation, a consent agreementlimiting the scope of his practice in 1998 and a six-month suspension in 2007. In 2008, the Bureau ofProfessional Medical Conduct (hereinafter BPMC) filed a statement of charges against petitioneralleging cocaine dependency, habitual abuse of alcohol, habitual abuse of the prescription drughydrocodone, a psychiatric condition impairing his ability to practice medicine, neglect to pay a civil fineof $2,500 that had been directed in an earlier order of a Hearing Committee of respondent State Boardfor Professional Medical Conduct, and failure to report self-prescribed medication in violation of a priorvoluntary agreement with the Office of Professional Medical Conduct.[*2]
Following a hearing, the Committee dismissed the chargealleging cocaine dependency, but sustained the remaining charges and, as a penalty, suspendedpetitioner's license for two years. The suspension was stayed upon the condition that petitioner complywith various terms of probation. The parties sought review by respondent Administrative Review Boardfor Professional Medical Conduct (hereinafter ARB), which affirmed the Committee's findings regardingprofessional misconduct. However, the ARB unanimously overturned the Committee's penalty and,instead, revoked petitioner's license to practice medicine. Petitioner then commenced the currentproceeding.
We are unpersuaded by petitioner's initial argument that various alleged procedural and evidentiaryerrors resulted in a hearing that was not fair and violated due process. Considerable leeway regardingthe rules of evidence is permitted in administrative proceedings, and the requirements of due processare not as exacting in such proceedings as in criminal cases (see Matter of Smith v New York State Dept. of Health, 66 AD3d 1144,1147 [2009]; Matter of Tsirelman vDaines, 61 AD3d 1128, 1130-1131 [2009], lv denied 13 NY3d 709 [2009]). "Towarrant annulment, an erroneous evidentiary ruling must 'infect the entire proceeding with unfairness' "(Matter of Morfesis v Sobol, 172 AD2d 897, 897 [1991], lv denied 78 NY2d 856[1991], quoting Matter of Ackerman v Ambach, 142 AD2d 842, 845 [1988], affd 73NY2d 323 [1989]). Petitioner contends that he did not have sufficient notice to permit him to preparefor the hearing. The charges were served upon him on January 28, 2008, a prehearing conference wasconducted on February 20, 2008, and the hearing commenced on February 29, 2008. This noticecomplied with the statutory requirement (see Public Health Law § 230 [10] [former(d)]), and the Administrative Law Judge (hereinafter ALJ) did not abuse his discretion in refusing toadjourn the hearing (see Matter of Kosich vNew York State Dept. of Health, 49 AD3d 980, 982-983 [2008], appeal dismissed10 NY3d 950 [2008]). Disclosure consistent with the pertinent regulation was permitted (see10 NYCRR 51.8). The ALJ's decision to rule on the admissibility of certain exhibits at the prehearingconference and to provide those exhibits to Committee members before the hearing did not violate dueprocess. The exhibits were provided to petitioner in advance of the conference, he had an opportunityto be heard regarding the exhibits, and he could have submitted his own exhibits.
The ALJ's various evidentiary and procedural rulings, while not error free, nevertheless did not soinfect the proceeding as to deprive petitioner of a fair hearing. Review of the record reflects thatpetitioner had ample opportunity to cross-examine witnesses produced by BPMC as well as present hisown case. The errors that he alleged occurred, considered cumulatively, fail to establish that he did notreceive a fair hearing (see generally Matter of Kosich v New York State Dept. of Health, 49AD3d at 982-984).
The record does not support petitioner's assertion that two of the Committee members were biasedagainst him. "Committee members are presumed to be free from bias [and] [p]etitioner has the burdenof providing factual support demonstrating bias and proof that the administrative outcome flowed fromsuch bias" (Matter of Khan v New YorkState Dept. of Health, 17 AD3d 938, 939 [2005] [internal quotation marks and citationsomitted]; see Matter of Maglione v NewYork State Dept. of Health, 9 AD3d 522, 523 [2004]). The two members at issue wereindividually questioned at the commencement of the hearing and each affirmatively stated an ability to beimpartial. There is nothing in the record beyond speculation revealing any reason not to credit theserepresentations by the Committee members.[*3]
Next, we consider petitioner's argument that there wasinsufficient evidence to support the ARB's determination upholding the charges that petitioner habituallyabused alcohol and hydrocodone. The ARB's determination "will not be disturbed if it has a rationalbasis and is factually supported" (Matter ofShapiro v Administrative Review Bd. of the State Bd. for Professional Med. Conduct, 71 AD3d1241, 1242 [2010] [internal quotation marks and citation omitted]; see Matter of Singh v New York State Dept. ofHealth Bd. of Professional Med. Conduct, 74 AD3d 1391, 1392-1393 [2010]). Our reviewis limited and "we do not resolve credibility issues or weigh the testimony of expert witnesses, for thoseissues are solely within the province of the administrative factfinder" (Matter of D'Souza v New York State Dept. ofHealth, 68 AD3d 1562, 1563 [2009] [internal quotation marks and citations omitted]).
Petitioner's documented history of acute alcohol problems began in the early 1990s when, as anassistant medical examiner, he arrived intoxicated at a death scene. He voluntarily surrendered hislicense because of his alcohol problem and, during treatment, was diagnosed with a severealcohol-dependent condition. After a period of probation, he admittedly returned to drinking, whichresulted in additional alcohol-related incidents. More recently, he was involuntarily hospitalized after hissister found him highly intoxicated and threatening self-harm. He failed to follow through onrecommended treatment. A physician who evaluated petitioner and testified at the hearing opined thatpetitioner "chronically and repeatedly engaged in a pattern of excessive and problematic use of alcohol"and that his actions were consistent with alcohol dependence. The ARB found this opinion, which had afactual basis in the record, to be credible and did not credit the explanations offered by petitioner. Thisproof is adequate to uphold the finding regarding habitual alcohol abuse.
There is also sufficient evidence in the record regarding petitioner's habitual use of the prescriptiondrug hydrocodone. While the total pills purchased by petitioner over a 730-day period were within thetherapeutically prescribed regimen when considered over the entire time, there were periods during thistime of excessive purchases. Significantly, petitioner received prescriptions from multiple physicians andused multiple pharmacies to fill those prescriptions. As observed by a physician who testified forBPMC at the hearing, petitioner's behavior of rotating pharmacies and obtaining prescriptions frommore than one doctor (without informing his other doctors) was inappropriate, manipulative, "[v]erysuggestive of chemical dependency," and reflected an effort to "stay[ ] off the radar." The ARB'sdetermination has factual support and was not arbitrary.
Finally, we turn to the assertion that the ARB abused its discretion by revoking petitioner's license."The ARB is empowered to impose a harsher penalty than the Committee, and such penalty will onlybe disturbed if it is so disproportionate to the offense that it is shocking to one's sense of fairness" (Matter of Cohen v New York State Dept. ofHealth, 65 AD3d 791, 793 [2009] [citations omitted]; see Matter of Chatelain v New York State Dept. of Health, 48 AD3d943, 944 [2008]). Hence, our review is limited and, while a penalty in the nature fashioned by theCommittee would have been appropriate, the harsher penalty imposed by the ARB does not rise to thehigh level necessary for us to set it aside (cf. Matter of Addei v State Bd. for Professional Med.Conduct, 278 AD2d 551, 553 [2000]), particularly in light of petitioner's less than laudabledisciplinary history, his lack of cooperation and candor, his apparent disinclination to seek help, and hisrepeated failure to adhere to a regimen directed at addressing his problem (see Matter of Nisi v New York State Dept. ofHealth, 70 AD3d 1211, 1214 [2010]; Matter of Chatelain v New York State Dept. ofHealth, 48 AD3d at 944).[*4]
Petitioner's remaining claims have been considered and areunavailing.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.