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