Summary
declining to apply Pearce in civil case involving suspension of physician's license by Board for Professional Medical Conduct because the second board was composed of different individuals from the first
Summary of this case from Martinez v. Cape Fox Corp.Opinion
June 26, 1997
In August 1995, the State Board for Professional Medical Conduct (hereinafter BPMC) filed an amended statement of charges against petitioner, a board-certified surgeon, charging him with 24 specifications of professional misconduct stemming from his treatment of six patients and false statements he made on two applications for reappointment to a hospital's staff. Following an evidentiary hearing, the Hearing Committee on Professional Conduct (hereinafter Committee) sustained all of the specifications and ordered that petitioner's license be suspended for 24 months, with 21 months of such suspension stayed, and that petitioner practice on probation. In addition, the Committee imposed a $10,000 fine. Petitioner's appeal to the Administrative Review Board (hereinafter ARB) was unsuccessful in that, besides sustaining the Committee's determination, the ARB overturned its penalty and revoked petitioner's medical license. This CPLR article 78 proceeding ensued.
The sustained specifications are: practicing the profession of medicine both with negligence on more than one occasion and incompetence, excessive testing and treatment, failing to maintain an adequate record, fraudulent practice and filing a false report.
Petitioner's challenge is limited to the penalty of revocation which he claims is so disproportionate to the offense as to be shocking to one's sense of fairness, particularly since comparable cases adjudicated by BPMC resulted in the imposition of less severe penalties. This argument is unavailing for we have made it clear that penalties imposed in other cases are irrelevant because each case must be judged on its own peculiar facts and circumstances ( see, Matter of Gonzalez v. New York State Dept. of Health, 232 A.D.2d 886, 890-891; Matter of Siddiqui v. New York State Dept. of Health, 228 A.D.2d 735, 738, lv denied 89 N.Y.2d 804; Matter of Binenfeld v. New York State Dept. of Health, 226 A.D.2d 935, 937, lv dismissed 88 N.Y.2d 1052; Matter of Abdelmessih v. Board of Regents, 205 A.D.2d 983, 986).
Next, petitioner, citing North Carolina v. Pearce ( 395 U.S. 711), maintains that his due process rights were violated by the ARB's alleged practice of never reducing but generally increasing a penalty, which petitioner claims renders the review available under Public Health Law § 230-c (4) (b) meaningless and has a chilling effect on a licensee contemplating an administrative appeal. The rule that has emerged from Pearce and its progeny is that the Due Process Clause is not offended by all possibilities of an enhanced penalty following an appeal, but only by those that pose a realistic likelihood of "`vindictiveness'" ( Blackledge v. Perry, 417 U.S. 21, 27). Here, in contrast to Pearce where the court that imposed the increased sentence after retrial was the same one whose original judgment prompted an appellate reversal, the element of vindictiveness is not present since the Committee and the ARB are composed of different individuals. Thus, we find no abridgement of petitioner's due process rights.
We now reach petitioner's ultimate argument that the penalty of revocation is excessive. Taking into account that fraudulent conduct standing alone is sufficient to uphold the penalty of revocation ( see, Matter of Glassman v. Commissioner of Dept. of Health, 208 A.D.2d 1060, 1061, lv denied 85 N.Y.2d 801), we have no difficulty sustaining the penalty when such conduct is coupled with negligence on more than one occasion and incompetence. We note that petitioner's contention that the ARB did not consider the possibility of rehabilitation is belied by the ARB's statement that "neither retraining nor continuing medical education can correct [petitioner's lack of integrity]".
Mikoll, J.P., Mercure, Crew III and Peters, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.