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SELKIN v. STATE FOR PROFESSIONAL MEDICAL CONDUCT

September 3, 1999

STUART G. SELKIN, M.D., PLAINTIFF,
v.
THE STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, A BOARD UNDER THE AUSPICES OF THE NEW YORK STATE DEPARTMENT OF HEALTH, AND EDWIN L. SMITH, DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

This civil rights action, brought under 42 U.S.C. § 1983, is presently before the Court on the motion of plaintiff Stuart G. Selkin, M.D. ("Selkin") for a preliminary injunction enjoining defendants State Board for Professional Medical Conduct ("SBPMC") and Edwin L. Smith from revoking plaintiff's license to practice medicine. The Court has original jurisdiction over the action pursuant to 28 U.S.C. § 1343 and 1331. For the reasons discussed below, plaintiff's motion is denied.

BACKGROUND

I. The Administrative Proceeding

Selkin is a Board Certified Otolaryngologist (ear, nose and throat specialist) who received his license to practice medicine in New York in 1967. On or about October 14, 1998, charges of professional misconduct were filed against Selkin by the SBPMC, a board acting under the auspices of the New York State Department of Health, which has been charged by the legislature with responsibility for overseeing the competence and integrity of those licensed to practice medicine in New York State. See N YPUB. HEALTH LAW § 230. Selkin was served with a Notice of Hearing and Statement of Charges on October 19, 1998. The charges included, inter alia, moral unfitness to practice medicine (based upon allegations that Selkin had consensual sexual relations with four women while they were his patients), gross negligence, gross incompetence, negligence on more than one occasion, fraudulent practice and failure to maintain appropriate medical records.

A hearing was held before a three-member committee of the SBPMC (the "Committee") from December 28, 1998 through March 19, 1999, and was presided over by Edwin L. Smith, an Administrative Law Judge.*fn1 At said hearing, Selkin was represented by an attorney and had an opportunity to present evidence and witnesses on his behalf, to have subpoenas issued on his behalf, and to cross-examine any witnesses testifying against him. See N YPUB. HEALTH LAW § 230(10)(f).

On or about June 1, 1999, the Committee issued its Determination and Order, BPMC-99-122, dismissing all charges against Selkin with the exception of one count of negligence on more than one occasion (for which he was fined $10,000), two counts of failing to maintain proper medical records (for which he was fined an additional $10,000), and two counts of moral unfitness. In particular, the Committee found that:

  E. [Selkin] engaged in a sexual relationship with
  his patient, Patient E
    78. [Selkin] testified that he had sexual relations
      with Patient E while she was a patient for an 18
      month period ending in early 1990 and that she
      was a patient of his from 1986 until early 1990.
    79. After Patient E's husband, Mr. N, discovered
      the sexual relationship between [Selkin] and his
      wife, Patient E, there was an armed
      confrontation, with guns drawn, between [Selkin]
      and Mr. N, resulting in the arrest of Mr. N.
    80. [Selkin]'s relationship with Patient E was in
      violation of a long-standing consensus within the
      medical profession that sexual contact or sexual
      relations between physicians and patients are
      unethical. . . .
  G. [Selkin] engaged in a sexual relationship with
  his patient, Patient G
    83. By letter dated December 29, 1994, [Selkin]
      wrote to John Flynn, an investigator with OPMC,
      that he had a sexual relationship with a single
      woman, later identified as Patient G, who was a
      patient at the time of that relationship.
    84. [Selkin] testified at the hearing that his
      letter was an incorrect statement based, not on
      his recollection, rather on "information" from
      Patient G that it was her son that was a patient
      at the ...

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