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HASON v. OFFICE OF PROFESSIONAL MEDICAL CONDUCT

April 19, 2004.

MICHAEL J. HASON, M.D., Plaintiff; -against- OFFICE OF PROFESSIONAL MEDICAL CONDUCT, MEDICAL BOARD OF THE STATE OF NEW YORK, DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK AND COMMISIONER; IRVING S. CAPLIN, DR. TERESA BRIGGS, and DR. FRED LEVINSON, in their individual and official capacities, Defendants


The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION AND ORDER

Plaintiff was licensed to practice medicine in New York in 1993 and is also an attorney licensed to practice law in this state. He has brought this action, pro se, seeking declaratory and injunctive relief relating to the revocation of his New York state medical license in November 1999, as well as compensatory and punitive damages. Defendants have now moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons set forth below, defendants' motion is granted and the Amended Complaint is dismissed with prejudice.

BACKGROUND

  In August 1999, the New York State Department of Health initiated a proceeding against Dr. Michael J. Hason, charging him with medical misconduct pursuant to New York Education Law § 6530(9)(d).*fn1 That administrative action against plaintiff was premised on a February 24, 1998 decision of the Medical Board of California denying his application for a California medical license on the ground, inter alia, that he was "not emotionally stable [enough] to safely practice medicine." See Statement of Charges in In the Matter of Michael Jeffrey Hason, M.D., (Appendix A to Determination and Order, attached to Declaration of Scott Fisher in Support of Defendants' Motion to Dismiss at Exhibit B); Proposed Decision in the Matter of Michael J. Hason, OAH No. N-9704117 at 4 (attached to Fisher Declaration at Exhibit A). In the New York proceeding, Hason was charged with violating New York Education Law § 6530(7): "[p]racticing the profession while impaired by alcohol, drugs, physical disability, or mental disability."

  An expedited hearing was held in New York in September of 1999 before a three — member panel of the New York Board of Professional Medical Conduct (the "BPMC") pursuant to New York Public Health Law § 230(10)(p). At this hearing, plaintiff appeared pro se and offered testimony of his therapist, David Molko, M.S.W., and a letter from his treating psychiatrist, Robert M. Petrovich M.D., in support of Hason's contention that although he had been diagnosed with "major depression," that condition was "currently in remission" and that he would be able to "safely practice medicine." See Transcript of Referral Hearing dated Sept. 2, 1999 at 4-9 (attached to Fisher Declaration at Exhibit D); Letter from Dr. Petrovich dated August 29, 1999 (attached to Fisher Declaration at Exhibit C).

  On November 9, 1999, the panel issued its Determination and Order (the "BPMC decision"). The panel concluded the California Medical Board "appropriately denied [plaintiff's] application . . . based on [his] psychiatric history." See Determination and Order at 3 (attached to Fisher Declaration at Exhibit B). In its consideration of the appropriate penalty, the BPMC panel wrote that it was "not convinced by Mr. Molko's testimony that [plaintiff] was ready to resume all duties and responsibilities involved in the practice of medicine." Id. at 5. It also concluded that revocation of plaintiff's medical license would serve "to protect the safety of the public until such time that [he] can demonstrate that he is fully rehabilitated and is ready to resume all duties and responsibilities as a physician in the state of New York." Id. Pursuant to New York Public Health Law § 230(10)(p) and New York Education Law § 6 530(9)(d), the BPMC panel then revoked plaintiff's New York medical license. Id. at 6.

  Plaintiff next requested the Administrative Review Board of the New York Department of Health (the "ARB") to nullify or modify the BPMC decision pursuant to New York Public Health Law § 230(c)(4). Among the errors Hason alleged to have taken place in the BPMC proceeding was that the BPMC panel violated provisions of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101 et. seq. See Administrative Review Board Determination and Order No. 99-273 at 3 (attached to Fisher Declaration at Exhibit E). However, the ARB held that it lacked jurisdiction to entertain allegations of ADA violations and wrote that "we leave [Hason] to raise those issues in the courts." Id. at 4. The ARB also sustained the BPMC panel's finding that plaintiff was unfit to practice medicine under N.Y. Educ. Law § 6530(9)(d) because the BPMC was entitled to rely on the holding of the California decision. Nevertheless, the ARB disagreed with the penalty imposed by the BPMC-revocation of plaintiff s medical license-and imposed instead a suspension of his medical license for "one year certain and for such time thereafter until [plaintiff] can demonstrate to a BPMC Committee [his] fitness to return to practice." Id. at 4-6.

  Plaintiff appealed that ARB decision to the Appellate Division of the New York Supreme Court, Third Judicial Department, pursuant to Article 78 of New York Civil Procedure Law and Rules. In his legal memorandum in that Article 78 proceeding, Hason argued, among other points, that: 1) the BPMC and ARB decisions discriminated against him on the basis of his disability in violation of the ADA and New York Human Rights Law, New York Executive Law § 296; 2) the BPMC hearing and the ARB review deprived him of the right to due process because he was allocated the ultimate burden of proof; and 3) the BPMC panel members acted out of bias against him and violated his right to equal protection. See Petitioner Dr. Hason's Amended Brief at 3-16, 16-19, 20-22 (attached to Fisher Declaration at Exhibit I).

  As a preliminary matter, the Appellate Division noted in the resulting opinion that, in Article 78 proceedings, its jurisdiction was limited to review of the ARB decision and, therefore, it lacked authority to review the BPMC decision. See In the Matter of Hason v. Department of Health, 295 A.D.2d 818, 822 (3rd Dept., 2002) ("to the extent that petitioner challenges the findings of the Hearing Committee, we note that our review of the Hearing Committee's decision is precluded as petitioner sought review of such decision from the ARB") (internal citations omitted). Substantively, the Appellate Division concluded that the ARB decision had ua rational basis which is factually supported and was not arbitrary and capricious, affected by an error of law or an abuse of discretion" and affirmed the ARB's finding as to plaintiff's professional misconduct. Id. The Appellate Division further found plaintiff's arguments of lack of due process and of bias to be "unavailing." Id. With respect to the penalty imposed, however, the Appellate Division held that the indefinite suspension of plaintiff's medical license imposed by the ARB exceeded the ARB's statutory authority. See id, Accordingly, the Appellate Division remitted the matter to the ARB for reconsideration of an appropriate penalty.

  Upon remittal from the Appellate Division, the ARB in turn remanded the proceeding in September 2002 to the BPMC panel in order to gather "additional evidence or testimony regarding [plaintiff's] mental status" and to provide a new penalty recommendation. See New York Department of Health Administrative Review Remand Order No. 99-273R at 2 (attached to Fisher Declaration at Exhibit F). On remand, the BPMC panel ordered plaintiff to submit to a psychiatric examination by Melvin Steinhardt M.D., who then issued a report in May of 2003. Approximately two months later, the BPMC recommended, based in part upon Dr. Steinhardt's report, that plaintiff "should be allowed to practice medicine in New York upon the condition that he remain on the appropriate medication and continue psychotherapy" and that such monitoring should continue for three years. See Supplemental Determination in the Matter of Michael Jeffery Hanson M.D. (the "Supplemental Determination") at 8 (attached to Reply Declaration of Scott Fisher at Exhibit 1).

  On the basis of that recommendation by the BPMC, the ARB issued a new Determination and Order in October of 2003 that permitted plaintiff to practice medicine "if [he] remained on appropriate medication and continued with psychotherapy," along with other conditions. See ARB Determination and Order dated October 24, 2003 ("2003 ARB Order") at 6-7 (attached to Letter of Assistant Attorney General James M. Hersler dated February 26, 2004). In addition, the 2003 ARB Order placed plaintiff on probation for five years and restricted his practice to a hospital setting, rather than permitting him to engage in a solo practice. See 2003 ARB Order at 7.

  Plaintiff instituted this action on November 14, 2002 to challenge the revocation of his New York medical license-11 months prior to the issuance of the 2003 ARB Order. Plaintiff's Amended Complaint alleges that the BPMC decision violated plaintiff's rights under 1) the Americans with Disabilities Act ("ADA"), 2) the Rehabilitation Act of 1974,*fn2 29 U.S.C. § 701 et. seq. and 3) the due process clause of the Fourteenth Amendment to the United States Constitution. He fails to identity any particular provision of the ADA or the Rehabilitation Act that he claims had been violated. Plaintiff also challenges the constitutionality of New York Education Law § 6330(10)(d) under the due process clause of the Fourteenth Amendment on the ground that the statute impermissibly places the burden of proof on a respondent in a BPMC proceeding. Finally, plaintiff claims that the individual defendants-members of the BPMC panel-deprived him of the right to substantive due process in violation of 42 U.S.C. § 1983 and also conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985. Plaintiff seeks declaratory and injunctive relief as well as compensatory and punitive damages.

  Defendants offer a variety of arguments in support of their motion to dismiss, including that, in light of Appellate Division decision in In the Matter of Hason, 295 A.D.2d 818, application of the Rooker — Feldman doctrine requires dismissal of this action for lack of subject matter jurisdiction, Defendants also contend that plaintiff's claims are barred by the statute of limitations because the initial complaint was filed on November 14, 2002, more than three years after the BPMC ...


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