Opinion
12-31-2015
In the Matter of Janet M. IZZO and Jennifer M. Beard, as Coadministrators of the Estate of Laura Huling, Deceased, Petitioners–Respondents, v. NEW YORK STATE DEPARTMENT OF HEALTH, Nira R. Shah, Commissioner, New York State Department of Health, State Board for Professional Medical Conduct, Kendrick Sears, Chair, State Board of Professional Medical Conduct, Office of Professional Medical Conduct and Keith Servis, Executive Director of Office of Professional Medical Conduct, Respondents–Appellants.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondents–Appellants. Janet M. Izzo, Syracuse, Petitioner–Respondent Pro Se and for Jennifer M. Beard, Petitioner–Respondent.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondents–Appellants.
Janet M. Izzo, Syracuse, Petitioner–Respondent Pro Se and for Jennifer M. Beard, Petitioner–Respondent.
MEMORANDUM:In this CPLR article 78 proceeding, respondents contend that Supreme Court erred in directing them to supplement their verified answer by providing affidavits and submitting documents for in camera review to describe in greater detail the investigation undertaken by respondent Office of Professional Medical Conduct (OPMC) with respect to the medical misconduct complaint filed by petitioners' decedent. We agree. Pursuant to Public Health Law § 230(10)(a)(v), OPMC's investigative records are confidential and not subject to disclosure, subject to certain exceptions not applicable to this case, where, as here, the OPMC investigation does not proceed past the interview stage (see Kirby v. Kenmore Mercy Hosp., 122 A.D.3d 1284, 1285, 996 N.Y.S.2d 822 ; Hunold v. Community Gen. Hosp. of Greater Syracuse, 61 A.D.3d 1331, 1332–1333, 876 N.Y.S.2d 828 ).
We further agree with respondents that the petition must be dismissed. A patient complaining of professional misconduct has no standing to challenge the determination of a disciplinary body not to pursue disciplinary action (see Matter of Davis v. New York State Dept. of Educ., 96 A.D.3d 1261, 1262, 947 N.Y.S.2d 663 ), and petitioners therefore have no standing to challenge OPMC's determination not to bring medical misconduct charges pursuant to Education Law § 6510. In any event, we further conclude that the determination of a disciplinary body such as OPMC that no misconduct occurred in a particular case "is a discretionary one for which review in a proceeding in the nature of mandamus is unavailable" (Matter of Frooks v. Adams, 214 A.D.2d 615, 615, 624 N.Y.S.2d 964 ; see Davis, 96 A.D.3d at 1262–1263, 947 N.Y.S.2d 663 ; see also Matter of Wade v. Suffolk County Med. Socy., 88 A.D.2d 602, 602, 449 N.Y.S.2d 769 ).
It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, and WHALEN, JJ., concur.