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Tsirelman v. Daines

United States Court of Appeals, Second Circuit

July 24, 2015

GARY TSIRELMAN, M.D., Plaintiff-Appellant,
v.
RICHARD F. DAINES, M.D., Commissioner of Health, STATE OF NEW YORK DEPARTMENT OF HEALTH, KENDRICK A. SEARS, M.D., Chairman of the State Board for Professional Medical Conduct, STATE OF NEW YORK DEPARTMENT OF HEALTH, and STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT and THEIR EMPLOYEES and AGENTS, Defendants-Appellees. [*]

Argued April 16, 2015

Page 311

Appeal from the United States District Court for the Eastern District of New York. No. 1:10-cv-903 -- Jack B. Weinstein, Judge.

Plaintiff Gary Tsirelman's medical license was revoked in a New York disciplinary proceeding. On appeal, he challenges New York's use of the preponderance-of-the-evidence standard in such proceedings as a violation of the Due Process Clause. Because we hold that the Constitution does not require a higher standard of proof in fraud-based medical disciplinary proceedings, we AFFIRM the district court's order dismissing Tsirelman's complaint.

ADAM FRANCOIS WATKINS, Watkins Bradley LLP, New York, NY, for Plaintiff-Appellant.

KAREN W. LIN (Claude S. Platton, Barbara D. Underwood, Solicitor General of New York, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.

Before: WINTER, WALKER, and DRONEY, Circuit Judges.

OPINION

Page 312

John M. Walker, Jr., Circuit Judge.

Plaintiff Gary Tsirelman's medical license was revoked in a New York disciplinary proceeding. On appeal, he challenges New York's use of the preponderance-of-the-evidence standard in such proceedings as a violation of the Due Process Clause. Because we hold that the Constitution does not require a higher standard of proof in fraud-based medical disciplinary proceedings, we AFFIRM the district court's order dismissing Tsirelman's complaint.

BACKGROUND

Gary Tsirelman became licensed to practice medicine in 1996. In 2000, he acquired an ownership interest in LaMed medical clinic (" LaMed" ). While practicing at LaMed, Tsirelman performed synaptic therapy, a non-invasive, drug-free treatment consisting of electrical impulses administered to areas causing the patient pain. Flatlands Management, the contractor who assembled LaMed's bills, however, billed insurance companies for a nerve destruction procedure when Tsirelman performed synaptic therapy, for which no billing codes existed. Synaptic therapy is not a form of nerve destruction procedure.

In 2007, the State of New York Office of Professional Medical Conduct (" OPMC" ) charged Tsirelman with practicing medicine fraudulently, willfully making or filing a false report, ordering excessive tests or treatments not warranted by the patient's condition, and therefore engaging in conduct that evidenced moral unfitness to practice medicine. OPMC based the charges on Tsirelman's bills for nerve destruction procedures that he never performed. After a six-day hearing, a Hearing Committee for the State Board of Professional Medical Conduct (the " Hearing Committee" ), which consisted of two licensed physicians, one lay member, and a non-voting administrative law judge as presider, sustained 51 of 69 charges of professional misconduct. The Hearing Committee found, by a preponderance of the evidence, that Tsirelman knew that bills were being sent under his signature for procedures that he did not perform and that he allowed such bills to be sent for his own benefit. In re Tsirelman, No. 07-269, at 43 (N.Y. Bd. Prof. Med. Conduct Dec. 5, 2007), J.A. 234. The Hearing Committee revoked Tsirelman's medical license and fined him $100,000. Id. at 52, J.A. 243.

Tsirelman filed an Article 78 proceeding in New York state court seeking review of the Hearing Committee's determination.[1] In April 2009, the Appellate Division affirmed the Hearing Committee's principal findings and held that " the Committee could infer [Tsirelman's] knowledge that the bills were false, rather than merely inaccurate, and that he had willfully intended to mislead and deceive the insurer." Tsirelman v. Daines, 61 A.D.3d 1128, 876 N.Y.S.2d 237, 239 (App.Div. 3d Dep't 2009). The Appellate Division affirmed both penalties. Id. at 240.[2]

On March 1, 2010, Tsirelman filed this action in federal district court (Jack B. Weinstein, Judge ...


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