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Cameron v. Zucker

United States District Court, S.D. New York

June 6, 2017

DANIEL CAMERON, Plaintiff,
v.
HOWARD ZUCKER, et al., Defendants.

          OPINION AND ORDER

          JOHN G. KOELTL, District Judge

         Daniel Cameron, a medical doctor, brings this action against numerous defendants accusing them of conspiracy to violate the Sherman Act, 15 U.S.C. §§ 1, 2. He also alleges that the defendants violated his constitutional rights and provisions of the New York Public Health Law. Dr. Cameron alleges that disciplinary proceedings have been initiated against him in a bad faith effort to interfere with his medical practice, which consists substantially of the treatment and care of individuals with Lyme disease.

         The plaintiff moves pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction (1) enjoining the hearing on a Statement of Charges brought against the plaintiff by the New York State Board for Professional Medical Conduct, which is scheduled to begin on June 12, 2017, and any subsequent hearings; and (2) enjoining the defendants from taking any further disciplinary action against the plaintiff's medical license, on the theory that the hearing and any such actions constitute a bad faith prosecution in violation of the plaintiff's constitutional rights and the Sherman Act.

         The Court held an evidentiary hearing on the motion for a preliminary injunction on June 6, 2017. Having assessed the credibility of the witnesses and reviewed the evidence, the Court makes the following Findings of Fact and reaches the following Conclusions of Law.

         I.

         The following facts are based on the parties' submissions in connection with the preliminary injunction, and the evidence elicited at the hearing before the Court.

         A.

         The plaintiff is a medical doctor based in Mount Kisco, New York whose practice consists primarily of the diagnosis and treatment of patients affected by chronic Lyme disease. Cameron Aff. in Supp. of Mot. (“Cameron Aff.”) ¶ 2. There are at least two different methodologies for the diagnosis and treatment of Lyme disease: one set of guidelines prescribed by the Infectious Disease Society of America (“IDSA”) and another prescribed by the International Lyme and Associated Diseases Society (“ILADS”). Id. ¶¶ 2, 8; Complaint (“Compl.”) Exs. B, C. Dr. Cameron treats patients pursuant to the ILADS guidelines. Cameron Aff. ¶ 2.

         The Office of Professional Medical Conduct (“OPMC”), an administrative unit within the New York State Department of Health, is charged with investigating misconduct by medical professionals, including physicians, physician assistants, and special assistants. Nemerson Aff. in Opp. to Mot. (“Nemerson Aff.”) ¶ 4. The Director must “investigate each complaint received regardless of the source.” N.Y. Pub. H. L. § 230(10)(a). The Director of the OPMC may, in its discretion, then present its investigation to a three-person Investigation Committee of the State Board for Professional Medical Conduct (“BPMC”). Nemerson Aff. ¶¶ 10-11; N.Y. Pub. H. L. § 230(10)(a)(iv). The BPMC was created pursuant to New York Public Health Law § 230(1) and is comprised of physicians and laypersons appointed by the Commissioner of Health. Nemerson Aff. ¶ 8; N.Y. Pub. H. L. § 230(1). The BPMC typically acts not as a whole but through three-person Committees comprised of two physicians and one layperson. Nemerson Aff. ¶ 8; N.Y. Pub. H. L. § 230(6). Those committees are authorized to take only certain kinds of actions, all of which are set out in New York Public Health Law § 230. If an investigation is presented to a BPMC Investigation Committee, the individual being investigated has the right to be interviewed by the OMPC in order to provide an explanation of the issues being investigated. N.Y. Pub. H. L. § 230(10)(a)(iii). If a majority of a three-person Investigation Committee of the BPMC concurs with the determination of the Director of the OPMC that a hearing is warranted, the investigation is referred to the Bureau of Professional Misconduct (“Bureau”), where a Statement of Charges against the medical professional is drafted. Nemerson Aff. ¶ 4; N.Y. Pub. H. L. § 230(10)(a)(iv).

         Counsel for the Bureau then presents the case to a BPMC Hearing Committee. Nemerson Aff. ¶ 8; N.Y. Pub. H. L. 230(10)(a)(iv), 10(e). A Hearing Committee performs adjudicative functions in cases brought against individuals by the Bureau, including making findings of fact, conclusions concerning whether the charges against the individual should be sustained or dismissed, and, if charges are sustained, determining the appropriate penalty. Nemerson Aff. ¶ 8; N.Y. Pub. H. L. § 230(10)(g). The Hearing Committee is not bound by the rules of evidence, but must base its conclusions on a preponderance of the evidence. N.Y. Pub. H. L. § 230(10)(f). Either party may appeal the determination of the Hearing Committee to the Administrative Review Board for Professional Medical Conduct (“ARB”), which consists of five members of the BPMC, including three physicians and two laypersons. N.Y. Pub. H. L. § 230-c(1), (2). Parties may seek judicial review of the determination of the ARB in an Article 78 proceeding, N.Y. C.P.L.R. § 7801 et seq., or may bypass the ARB altogether by appealing the determination of the Hearing Committee directly in an Article 78 proceeding. N.Y. Pub. H. L. § 230-c(5). The result of the Article 78 proceeding may then be appealed to the Appellate Division, Third Department. Id.

         Thus, in sum, an investigation into a physician's medical conduct begins with the Director of the OPMC, who must investigate all complaints of misconduct. Only if the Director finds it appropriate will that investigation be presented to a three-person Investigation Committee of the BPMC. And then, only if -- after the physician has the opportunity to be interviewed -- the OPMC Director and a majority of the Investigation Committee concur that a Hearing is appropriate will a Statement of Charges be drafted and the case presented to a Hearing Committee for potential discipline.

         B.

         The OPMC began an initial investigation of Dr. Cameron in 2000 after receiving two complaints about Dr. Cameron's care of certain patients and learning of an investigation of Dr. Cameron by Oxford Health Plans. Nemerson Aff. Ex. B. That initial investigation, which involved Dr. Cameron's care and treatment of eleven patients, lasted throughout 2001 and 2002 before being closed without being presented to a BPMC Investigation Committee. Id. In 2008, the OPMC opened a new investigation into Dr. Cameron after receiving two patient complaints. That investigation eventually expanded to include a review of the care and treatment provided to ten patients, including six patients identified in the initial investigation.

         As part of the investigation Dr. Cameron, accompanied by his lawyer, was interviewed over two days by Dr. Burt Meyers, a medical coordinator, and Patrick Sullivan. Dr. Cameron received a record of that interview, and his lawyer made a follow-up submission including comments and corrections to the interview record. Id. Dr. Cameron alleges that the Report of Interview was biased because Dr. Meyers “is a proponent and supporter of the IDSA treatment and of the exclusion of ILADS based treatments and diagnostic modalities.” Cameron Aff. ¶ 79. At the hearing, Dr. Meyers credibly denied the charge and explained that he had never read the ILADS guidelines. Dr. Cameron also alleged “upon information and belief” that his lawyer's comments to the Report of Interview were never presented ...


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