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Case History Document



Denise Green v. United ILLuminating Company
Entered By: Ira M Maurer/LymeNetDate Created: June 29, 2001
Document Type: Decision
Title: Decision of the New York State Supreme Court, Appellate Division Third Department in Orens v. Novello
2001 N.Y. App. Div. LEXIS 6656, *


In the Matter of PERRY ORENS, Petitioner, v ANTONIA C. NOVELLO, as Commissioner of the Department of Health of the State of New York, et al., Respondents.


87430


SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


2001 N.Y. App. Div. LEXIS 6656



June 21, 2001, Decided
June 21, 2001, Entered

DISPOSITION: [*1]

Determination annulled, with costs, petition granted, and matter remitted to respondent State Board for Professional Medical Conduct for further proceedings not inconsistent with this Court's decision.


CASE SUMMARY

PROCEDURAL POSTURE: Petitioner doctor sought review of a determination by respondents, health department commissioner and review boards, which revoked doctor's license to practice medicine.


OVERVIEW: Doctor's license to practice medicine was revoked after a hearing before a hearing committee. The review board affirmed the revocation. On appeal, doctor contended that the three-member hearing committee did not include a "lay person" as required by N.Y. Pub. Health Law § 230(6). The appellate court found that the term "lay person" had different meanings based on the context of its use. After reviewing the legislative history of § 230(6), the appellate court held that the hearing committee had to include a person who was not subject to discipline under § 230(6). Because doctor had objected to the composition prior to the hearing, doctor was entitled to a properly constituted committee.


OUTCOME: The determination was annulled. The petition was granted, and the matter was remitted for further proceedings.


CORE TERMS: Public Health Law, profession, disciplinary, three-member, licensed, discipline, lay person, new hearing, recommended, malpractice, license to practice medicine, medical practitioner, legislative history, legislative intent, composition, inclusion, consisted, deference, revoked, annul, medical professional, medical malpractice, lay board, investigated, laymen, doctors


CORE CONCEPTS - Hide Concepts

Governments : Legislation : Construction & Interpretation
Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails the evaluation of factual data and inferences to be drawn therefrom, courts regularly defer to the governmental agency charged with the responsibility for administration of the statute. Where, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency.


Governments : Legislation : Construction & Interpretation
In a statutory interpretation context, the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent.


Healthcare Law : Business Organization & Administration : Licensing
N.Y. Pub. Health Law § 230(6) requires that a hearing committee consist of two physicians and one lay member.


Healthcare Law : Business Organization & Administration : Licensing
N.Y. Pub. Health Law § 230 defines the procedure for disciplining certain medical professionals, including both physicians and physician's assistants. N.Y. Pub. Health Law § 230(7).


Healthcare Law : Business Organization & Administration : Licensing
Although physicians and physician's assistants are licensed under different statutory provisions and have different training and responsibilities (N.Y. Educ. Law arts. 131, 131-B), they are nevertheless accorded the same treatment when subject to the N.Y. Pub. Health Law § 230 disciplinary process.


Healthcare Law : Business Organization & Administration : Licensing
The term "lay member", as used in N.Y. Pub. Health Law § 230(6), cannot include a physician's assistant or other licensed medical practitioner whose profession is also subject to the N.Y. Pub. Health Law § 230 disciplinary process.


Healthcare Law : Business Organization & Administration : Licensing
While laymen cannot sit in judgment on the technical performance of doctors, neither should doctors be the sole judges of the effects of their professional performance upon laymen. Both must be heard.



COUNSEL: Asher Fensterheim P.C. (Asher Fensterheim of counsel), Tarrytown, for petitioner.

Eliot Spitzer, Attorney-General (Raymond J. Foley of counsel), New York City, for respondents.

JUDGES: Before: Cardona, P.J., Mercure, Carpinello, Mugglin and Rose, JJ. Cardona, P.J., Mercure, Mugglin and Rose, JJ., concur.

OPINIONBY: Carpinello

OPINION: OPINION AND JUDGMENT

Carpinello, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review a determination of the Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

Petitioner's license to practice medicine in New York was revoked after a hearing before a Hearing Committee of respondent State Board for Professional Medical Conduct. The penalty of revocation was affirmed after review of the Hearing Committee's determination by the Administrative Review Board [*2] for Professional Medical Conduct. In this CPLR article 78 proceeding to annul the determination, petitioner contends, inter alia, that the three-member Hearing Committee, which consisted of two physicians and a physician's assistant, did not include a "lay person" as required by Public Health Law § 230 (6). n1 Respondents contend that the lay person requirement can be satisfied by the inclusion of any person who is not a physician and urges that this interpretation of the statutory provision be given deference by this Court.
Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails the evaluation of factual data and inferences to be drawn therefrom, the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute. * * * Where, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency * * * ( Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 403 N.E.2d 159 [*3] [citations omitted]).

We conclude that the circumstances of this case fall into the latter category and, therefore, "the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent" ( Matter of Gruber [New York City Dept. of Personnel-Sweeney], 89 N.Y.2d 225, 231-232, 674 N.E.2d 1354, 652 N.Y.S.2d 589).

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n1 This issue was properly preserved by a timely objection prior to the hearing.

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Public Health Law § 230 (6) requires that a Hearing Committee "consist of two physicians and one lay member". The Legislature has used the term "lay member" or "lay person" in other statutes (see, e.g., General Business Law § 791 [1]; Religious Corporations Law § 95; Soil and Water Conservation Districts Law § 4 [1]; Vehicle and Traffic Law § 542), and it is readily apparent that the meaning of the [*4] term is dependent upon the context in which it is used. As noted, respondents contend that "lay member" as used in Public Health Law § 230 (6) simply means one who is not a licensed physician. While this argument is perhaps facially appealing, it does not withstand scrutiny upon our review of the entire statutory scheme, including its legislative history.

Public Health Law § 230 defines the procedure for disciplining certain medical professionals, including both physicians and physician's assistants (see, Public Health Law § 230 [7]). Although physicians and physician's assistants are, as respondents point out, licensed under different statutory provisions and have different training and responsibilities (see, Education Law arts 131, 131-B), they are nevertheless accorded the same treatment when subject to the Public Health Law § 230 disciplinary process. Under these circumstances, we conclude that the term "lay member", as used in Public Health Law § 230 (6), cannot include a physician's assistant or other licensed medical practitioner whose profession [*5] is also subject to the Public Health Law § 230 disciplinary process. This finding is consistent with the legislative history of this statute, which takes us back nearly a quarter of a century.

Public Health Law § 230 was enacted in 1975 in conjunction with legislation aimed at addressing a then-nationwide medical malpractice insurance crisis (see, L 1975, ch 109). In the mid-1970s, it was believed that strengthening the disciplinary procedures applicable to physicians might lead to a reduction in the incidents of medical malpractice (see, e.g., Report of the Secretary's Commission of Medical Malpractice, January 16, 1973, at 51; Governor's Mem, 1975 NY Legis Ann, at 226; Executive Dept Mem, 1975 McKinney's Session Laws of NY, at 1603). On the Federal level, a Department of Health, Education and Welfare Secretary's Commission on Medical Malpractice investigated the issue of malpractice insurance and issued a comprehensive report on January 16, 1973 which specifically discussed, and made recommendations concerning, the issue of professional discipline as it relates to malpractice. In its report, the Commission found that there was a compelling [*6] need for State licensing boards "to move more stro
ngly into the field of discipline" and that the public's "voice should be heard" on such boards since the public had a vital interest in such matters (Report of the Secretary's Commission of Medical Malpractice, at 51). Thus, the Commission specifically recommended that "while laymen cannot sit in judgment on the technical performance of doctors, neither should doctors be the sole judges of the effects of their professional performance upon laymen. Both must be heard" (id. [emphasis in original]).

On the State level, the New York City Bar Association's Committee on Medicine and Law also investigated the matter and issued a comprehensive report, The Medical Malpractice Insurance Crisis, recommending a number of measures to the Legislature (see, 30 The Record of the Association of the Bar of the City of New York 336). In its report, the Bar Association Committee concluded that "the Board of Regents had not exercised sufficiently its statutory authority to police the profession" (id., at 358) and thus recommended that the Legislature evaluate the effectiveness of that entity to effectively address claims of malpractice. [*7] It further recommended that the State Medical Society have a more active role in the disciplinary process of physicians (see, id.).

Following these reports, it was originally proposed that the entire responsibility for physician disciplinary matters be transferred to the Department of Health. This proposal, however, drew significant opposition from the Commissioner of Education, as well as the State Board for Medicine. The Commissioner of Education had concerns that the transfer of medical professional discipline from the Board of Regents to the Department of Health would be "contrary to the long-standing policy of the State of New York that licensed professions be subject to disciplinary action by a lay board rather than through a system managed exclusively by members of the profession" (State Educ Dept News, Nyquist Opposes Transfer of Medical Profession Discipline, Apr. 15, 1975, at 1, Bill Jacket, L 1975, ch 109). The State Board for Medicine similarly believed, that decisions in medical professional discipline should be vested "in the hands of a lay board of consumer representatives" so as to avoid "potential criticism of professiona
l self-protection" (State Educ Dept News, [*8] State Board for Medicine Releases Statement on Malpractice, Apr. 15, 1975, at 3, Bill Jacket, L 1975, ch 109).

These conflicting, views ostensibly resulted in a compromise. Pursuant to the Laws of 1975, chapter 109, § 28, the State Board for Professional Medical Conduct was created consisting of physicians and lay members. It is from this Board that the now three-member Hearing Committee is selected. n2 Upon our review of this history, it seems clear that the purpose of having a lay member on the Hearing Committee is to ensure that those being disciplined are not judged exclusively by members of the same profession. Thus, because a Hearing Committee must include one member who is independent of the profession being regulated, we conclude that the three-member Hearing Committee in this case, which consisted of two physicians and a third licensed professional medical practitioner whose profession is also subject to the Public Health Law § 230 disciplinary process, was not properly constituted.

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n2 When initially enacted, the Hearing Committee itself had five members, four physicians and one lay member. It was reduced to a three-member committee in 1984 (see, L 1984, ch 1005, § 4).

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Relying on Matter of Wolkoff v Chassin (89 N.Y.2d 250, 652 N.Y.S.2d 712, 675 N.E.2d 447), respondents contend that the two physician members of the Hearing Committee in this case constituted a quorum and that, because the vote was unanimous, petitioner was not prejudiced by the inclusion of the physician's assistant on the Hearing Committee. In contrast to Matter of Wolkoff v Chassin (supra), however, in this case the full complement of the Hearing Committee participated in the hearing and determination. Having timely objected to the composition of the Hearing Committee prior to the hearing, when the defect could have been cured, petitioner was entitled to a properly constituted Hearing Committee in accordance with Public Health Law § 230 (6) and we decline to speculate on the impact that the improperly constituted Hearing Committee may have had on the final determination. Similarly, there is no basis to conclude that the defect was rendered harmless by the administrative review process.

The appropriate remedy is to annul the determination and remit the matter for a new hearing before a properly constituted Hearing [*10] Committee. Although the petition did not expressly request a new hearing, such a request is implicit in petitioner's challenge to the composition of the Hearing Committee, and the petition includes a demand for "such other and further relief as the Court may deem just and proper". In light of the remittal for a new hearing, we consider no other issue.

Cardona, P.J., Mercure, Mugglin and Rose, JJ., concur.

ADJUDGED that the determination is annulled, with costs, petition granted, and matter remitted to respondent State Board for Professional Medical Conduct for further proceedings not inconsistent with this Court's decision.

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