The opinion of the court was delivered by: Kane, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: January 7, 2009
Before: Cardona, P.J., Rose, Kane and Stein, JJ.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c ) to review a determination of respondent which revoked petitioner's license to practice medicine in New York.
Petitioner was licensed to practice medicine in New York in 1999 and concentrated her practice in obstetrics and gynecology. From October 2000 to August 2002, petitioner held a faculty position at Columbia University and was appointed to the medical staff as an attending physician at the affiliated Harlem Hospital. Petitioner resigned her position at Harlem Hospital and began working at Long Island College Hospital (hereinafter LICH) in September 2002. In August 2003, petitioner resigned her position at LICH in order to take a position with the University of Miami in Florida. In connection therewith, petitioner applied for a Florida medical license in June 2003. In conjunction with her application, petitioner was required to submit to psychological and psychiatric evaluations, which she underwent in September 2003.
In December 2003, petitioner received a notice of intent to deny her Florida license application for, among other reasons, misrepresentations made during the licensing process and the inability to practice medicine with reasonable skill and safety due to a mental condition. Having lost the job opportunity at the University of Miami, petitioner submitted personnel data sheets to the United States Army in April 2004 and again in November 2004 seeking a commission, which she received in early January 2005.
Meanwhile, in December 2004, the Bureau of Professional Medical Conduct (hereinafter BPMC) informed petitioner that a proceeding would be held to determine whether she may be impaired by reason of a mental disability. After a hearing, a Hearing Committee issued a January 2005 order finding reason to believe that petitioner may be impaired and directing petitioner to submit to a psychiatric examination no later than February 18, 2005. Petitioner entered the Army shortly thereafter and has never submitted to the examination.
In March 2005, the Army commenced an investigation of petitioner for having allegedly submitted false statements on her entrance applications. After a hearing, petitioner was found to have knowingly made false statements and was discharged in June 2005. Thereafter, BPMC sent petitioner a letter informing her that the January 2005 order was still in effect and warning petitioner that her failure to comply would constitute professional misconduct.
In September 2005, petitioner was informed that her Florida medical license had been denied based upon findings that she had knowingly misrepresented and concealed material facts regarding the adverse circumstances surrounding her resignation from Harlem Hospital. Later in September 2005, petitioner received a letter from BPMC seeking to schedule an interview regarding various issues, including her failure to comply with the January 2005 order, the denial of her Florida license application and certain representations she had made on her Army applications. When petitioner failed to respond to BPMC's letter, the matter was referred to an investigative committee, after which charges were filed and later amended in March 2006. The charges included three specifications of fraudulent practice, one specification of failure to comply with an order and one specification of having an application for a medical license refused.
After a series of hearings before a Hearing Committee of the State Board for Professional Medical Conduct, the Committee issued a determination and order in August 2006. The Committee sustained three of the charges against petitioner, based upon her failure to comply with the January 2005 order and the charges relating to petitioner's Army applications, but did not sustain the two charges arising from her application for a medical license in Florida. As a result, the Committee suspended petitioner's license for six years, including a four-year outright suspension, followed by a two-year stayed suspension, during which petitioner would be placed on general probation and required to submit to a psychiatric evaluation. Both petitioner and BPMC appealed to respondent. While respondent affirmed the Committee's determination, it limited its findings of professional misconduct to petitioner's failure to comply with the January 2005 order and her deliberate misrepresentation in her response to the Army's questions concerning the Florida board's inquiries into her health and impairment status. Regarding the penalty, respondent overturned the Committee's suspension and revoked petitioner's license. This CPLR article 78 proceeding ensued, and we now confirm.
As a threshold matter we note that, where, as here, petitioner has sought review from respondent, this Court's inquiry is limited to whether the determination was "'arbitrary and capricious, affected by error of law or an abuse of discretion'" (Matter of Sundaram v Novello, 53 AD3d 804, 807 , lv denied 11 NY3d 708 , quoting Matter of Insler v State Bd. for Professional Med. Conduct, 38 AD3d 1095, 1097 ; see Matter of Buckner v State Bd. for Professional Med. Conduct, 7 AD3d 840, 841 ).
Initially, we reject petitioner's contention that respondent erred in upholding the determination that she committed professional misconduct by failing to comply with the January 2005 order to undergo a psychiatric evaluation. Pursuant to Public Health Law § 230 (7) (a), the State Board for Professional Medical Conduct has the authority to direct a licensee to submit to a psychiatric examination when it has reason to believe that he or she may be impaired by a mental disability, and failure to comply with such order constitutes an instance of professional misconduct (see Education Law § 6530 ; see also Matter of Moran v Chassin, 225 AD2d 814, 815 , lv denied 88 NY2d 807 ). Here, the Committee issued an order in January 2005 directing petitioner to undergo a psychiatric examination with which petitioner admittedly did not comply. Therefore, we finda rational basis for respondent's determination that petitioner committed professional misconduct by failing to comply with the order (see Matter of Ostad v New York State Dept. of Health, 309 AD2d 989, 991 ; Matter of Daniels v Novello, 306 AD2d 644, 644-645 , lv denied 100 NY2d 514 ). To the extent that petitioner now argues that it was unnecessary for her to comply with the order because it was improperly issued, premised upon a March 2006 order by Supreme Court (Mills, J.) in New York County barring certain charges against petitioner ...