Petition for Writ of Certiorari — Shafer v. Board of Regents

Supreme Court brief1998

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. Supreme Court, U.S.

FILED

98 331 AUG 2 11998

No.

DFFICE OF THE CLERK

In the United States Supreme Court

OcTOBER TERM, 1997

NATHANIEL SHAFER, M.D.,

Petitioner,

THE BOARD OF REGENTS OF THE STATE OF NEW YORK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION, THIRD DEPARTMENT

PETITION FOR A WRIT OF CERTIORARI

IRVING ANOLIK

Attorney for Petitioner

225 Broadway—Suite 1902

New York, New York 10007

(212) 732-3050

Counsel of Record

And A Member Of

The Bar Of This Court

Virgil Mountain, Inc. (212) 779-4046 (L4449)

QUESTIONS PRESENTED FOR REVIEW

Whether the Petitioner’s rights to due process of law and

equal protection of law under the Fourteenth Amendment

of the United States Constitution were violated when the

Court below held that it was proper to have removed and

replaced two of the three panel members of the disciplinary

panel who heard the complaint against the Petitioner,

notwithstanding the clear wording of §230(10)(f) of the

Public Health Law which forbids the replacement of more

than one panel member of such a disciplinary hearing

panel?

Whether the Petitioner’s rights to due process of law and

equal protection of law were violated by virtue of the fact

that the Court below held that notwithstanding §6510 of

the State Education Law and §230(10)(d) of the Public

Health Law which requires that fifteen days notice must be

given to a Doctor in connection with disciplinary charges,

that it was nonetheless perfectly alright that less than

fifteen days notice of such amended charges were given to

Dr. Shafer herein despite the clear language of these

Statutes?

. Whether the rights of the Petitioner herein were violated by

virtue of the fact that more than four and a quarter years of

unexplained delay occurred between the incident giving

rise to the disciplinary charges herein and the filing and

notifying of the Petitioner herein of such charges, during

which hiatus the Petitioner lost contact with essential

witnesses, documents and files had disappeared and

memories had grown dim, all to the prejudice of the

Petitioner?

. Whether in view of the fact that this Court held in the case

of In Re Ruffolo, 390 US 544, 88 S.Ct. 1222, reh denied

391 US 961, that disciplinary proceedings such as those

herein are “quasi-criminal in nature”, were the rights of

Petitioner violated by the unexplained hiatus of four and a

quarter years which occurred between the incident that

allegedly gave rise to the complaint and the notification of

the Petitioner of such complaint by filing charges, a

violation of the due process and Sixth Amendment rights

of the Petitioner to speedy justice?

. Since only one member of the three member disciplinary

panel which were the fact finders on Petitioner’s case

actually heard all of the evidence and saw the only witness

who testified against Shafer, Nurse Graham, and in view

of the fact that the panel that was sitting at the time Nurse

Graham testified, even went into executive session during

which time no minutes were taken at all, and in further

view of the fact that two of the three pane! members that

heard Nurse Graham were removed and replaced by two

new members later on in the proceedings, whether the

Petitioner’s rights to a fair hearing were violated under the

due process and equal protection clauses of the Fourteenth

Amendment of the United States Constitution, since the

panel members constituted what is tantamount to a “jury”

and no juror can be replaced at a “trial” unless he or she

actually saw and heard ali of the evidence and witnesses?

. Whether the refusal of the administrative law judge to

enforce “so ordered” subpoenae served by Petitioner upon

the OPMC thus preventing him from obtaining essential

evidence for his defense, violated his Fourteenth

Amendment’s due process and equal protection rights?

THE PARTIES

The parties are those listed in the caption of this petition.

TABLE OF CONTENTS

Page

SOUR: OR PONE aierins iain bine vi

Jurisdictional Statment for this Court.......................00. ix

Constitutional and Statutory Authorities ........................ x

RINE IO ood cuts upc ny sexscceantis acces sckars sia sedars ces xi

ae aE Be Senn pie 97S Wgtee RRA e 1

Point I:

THE SOLE SUBSTANTIVE WITNESS AGAINST

THE PETITIONER AT HIS DISCIPLINARY

HEARING WAS NURSE CATHERINE

GRAHAM. THERE WERE APPARENTLY SOME

DISPUTES BETWEEN DR. SHAFER AND

NURSE GRAHAM. PATIENT CARE AND

TREATMENT WERE NOT INVOLVED. ONLY

ONE MEMBER OF THE DISCIPLINARY PANEL

THAT FINALLY RENDERED A DECISION IN

THIS CASE ACTUALLY HEARD NURSE

GRAHAM. THE TWO OTHER SUBSTITUTE

MEMBERS NEVER SAW OR HEARD HER AND

INDEED COULD NOT EVEN REVIEW

EVERYTHING THAT OCCURRED DURING

THAT PERIOD OF TIME BECAUSE OF THE

FACT THAT THE THEN EXISTING PANEL

WENT INTO EXECUTIVE SESSION WHERE NO

MINUTES WERE TAKEN. SOME OF THE

MINUTES WHERE NURSE GRAHAM

TESTIFIED WERE AVAILABLE FOR REVIEW

BUT OF COURSE INFLECTIONS, THE

COUNTENANCE OF THE WITNESS AND SO

FORTH COULD NOT BE REVIEWED. THE

MATTER WAS THEN REFERRED ON A

PETITION TO SUPREME COURT JUSTICE,

NEW YORK COUNTY, FRANCIS PECORA

WHO WAS TOTALLY SHOCKED AND

NONPLUSED BY WHAT HAD OCCURRED.

ALL THE MINUTES THAT EXISTED AT THAT

TIME WERE TURNED OVER TO JUSTICE

PECORA BECAUSE OF THE FACT THAT THE

OFFICE OF PROFESSIONAL MEDICAL

CONDUCT (OPMC) STATED THAT THEIR

CASE WAS OVER AND HAD BEEN FULLY

FURIE C ETD pssia nus svisevkaussokuaskeetideiecanensuniasutehen 8

Point II:

A DISCIPLINARY PROCEEDING SUCH AS THE

ONE AT BAR IS A “QUASI-CRIMINAL

PROCEDURE” AND IT IS THEREFORE

COMPARABLE TO A CRIMINAL RATHER

THAN CIVIL PROCEEDING. THE HEARING

BEFORE THE ADMINISTRATIVE JUDGE WHO

REFUSED TO ENFORCE THE SUBPOENAE

THAT HE HAD “SO-ORDERED” AND THE

FAILURE TO GRANT THE STATUTORY 15 OR

20 DAY NOTICE OF HEARING, COUPLED

WITH THB? FAILURE TO SUPPLY NEEDED

MATERIAL FOR THE DEFENSE VIOLATED

STATE AS WELL AS FEDERALLY PROTECTED

RIGHTS. THIS, COUPLED WITH THE 4 1/4

YEARS UN-EXCUSED DELAY ON BRINGING

CHARGES, VIOLATED DR. SHAFER’S DUE

PROCESS RIGHTS. JUSTICE PECORA’S

VETERMINATION TO DISMISS THE CASE

ALTOGETHER, WE SUBMIT, WAS SOUND......... 13

Point III:

WE HAVE ALREADY ADVERTED CONCISELY

IN THE FOREGOING PASSAGES OF THIS

BRIEF THAT JURISDICTIONALLY THE

PROCEEDINGS AGAINST DR. SHAFER ARE

SERIOUSLY FLAWED IN’ BLATANT

VIOLATION OF THE RULES AND STATUTES

PERTAINING TO HEARINGS BEFORE THE

OFFICE OF PROFESSIONAL MEDICAL

| CONDUCT BY VIRTUE OF THE FACT THAT

TWO OF ONLY THREE MEMBERS OF THE

HEARING PANEL WERE REPLACED DURING

THE PROCEEDINGS, OVER OBJECTION OF

THE PETITIONER, IN VIOLATION OF SECTION

230(10)(f) OF THE PUBLIC HEALTH LAW.

FURTHERMORE, THE JURISDICTIONAL

ASPECTS OF THIS CASE WERE ALSO

| VIOLATED BY VIRTUE OF THE FACT THAT IN

VIOLATION SECTION 6510(d) OF THE STATE

| EDUCATION LAW AND SECTION 230(10)(d) OF

THE PUBLIC HEALTH LAW LESS THAN 15

DAYS NOTICE WAS GIVEN TO THE

PETITIONER WHEN AMENDED CHARGES

WERE SERVED UPON HIM DURING THE

PROGRESS OF THE HEARING. THIS WAS

ALSO OVER OBJECTION OF THE PETITIONER.

ACCORDINGLY WE MAINTAIN THAT EVEN

JURISDICTIONALLY, THE PROCEEDINGS

WERE IN VIOLATION OF STATUTES, RULES

AND WHAT WE PERCEIVED AS DUE PROCESS

a a ve ea oUt

TABLE OF CONTENTS

Appendix A:

Statement of Charges Dated March 27, 1987............ Al

Appendix B:

Amended Statement of Charges Dated May 12,

ROE SF osea ics cxsack peceeugpccauday cekeUustadgachctereeeoheckeus A4

Appendix C:

Memorandum Decision of the Supreme Court of

the State of New York, County of New York

(Justice Francis N. Pecora) Dated January 29,

RW ick obs ssn pene tn asdirasindal Seiaaanes ibenksinnbaes ends A6

Appendix D:

Decision and Order of the Appellate Division,

First Department, Dated June 8, 1993, with

PI PE ID cnn cdc ci tiigtha ce luisive ceccchv chases dueseines All

Appendix E:

Report of Regents Review Committee Dated

FOOT BAe AOI Keecnbbasiensstanrchicis ten iecepbensiecen Al5

Appendix F:

Vote and Order No. 15551 of the University of

the State of New York Dated March 13, 1996,

with Report of Regents Review Committee Dated

February 19, 1996 (Appendix E), Cover Letter

dated March 16, 1996, and a Copy of Rule

24.7(b) of the Rules of the Board of Regents........... A23

PDT MIN a

ANS Teel Re

TABLE OF CONTENTS

Page

Appendix G:

Memorandum & Judgment of the Supreme Court

of the State of New York—Appellate Division,

Third Department, Dated October 16, 1997............. A28

Appendix H:

Decision and Order on Motion of the Supreme

Court of the State of New York—Appellate

Division, Third Department, Dated January 27,

Re hc aissde iain Od Ee SIRs pa ga hs Nao ee npn A33

Appendix I:

Decision and Order on Motion of the Supreme

Court of the State of New York—Appellate

Division, Third Department, Dated May 28,

PRs asda ph ebraa kh < cides ownphs cadiinbs adanbecaamabcers ov A34

Appendix J:

PEE SN, RWW BGS IO) oi vinci acc ccenssincisidecdacs A35

Appendix K:

N.Y. Public Health Law $§230(10)(d) and (f)......... A36

| |

TABLE OF AUTHORITIES

Page

Cases Cited:

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187,

REDE WG te ae COIN tack dnc esaubn Wee tnensnatedhe 16

Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29

Rca PUR LET EDs ss ives concccdsnunamnivapaeuenenccdneess 14

Board of Regents v. Roth, 408 U.S. 564, 573, 92

S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972)............. 16

Dillingham v. United States, 423 U.S. 64, 96 S.Ct.

2 | RRR RR Reni ane Seine nee te one tae Ranoooen 10

Doggett v. United States, 505 U.S. 647, 112 S.Ct.

2686 CIPO aK GIA Acie iss 10

IN RE Fisher, 179 F.2d 361, 369 (7th Cir. 1950)

cert. denied, sub. nom Kerner v. Fisher, 340

SF ahs. teen FE ees, ee, Ce iisebineiisarivenmnesevatids 15

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011,

BS LR Bel AIF Otitis 14

Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779,

Peay Ae Bek Re CRD Ea cisanpninkacatsccucsvasecestes 16

Greene v. McElroy, 360 U.S. 474, 492, 496- 97, 79

S.Ct. 1400, 1411, 1413, 3 L.Ed.2d 1377

CRE san niie inthis casi iapedin nda deaenadaseneeshretakcascen 16

Gross v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42

SAA He ET PEEE Secon nods tukdeahisAbabsinenacapenssaeis 14

Johnson v. Avery, 393 U.S. 483, 490 n.11, 89

ks FE, Fe ec EE Ce eicicnccmnatidicinccaseins 15

TABLE OF AUTHORITIES

Cases Cited:

Joint Anti-Fascist Comm. V. McGrath, 341 U.S.

423, 71 BCA. DE. LBe. BET RIGS) cnc es cvceesesseeeiees 15

Kivitz v. SEC, 475 F.2d 956 (D.C. Cir. 1973) .............. 16

Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct.

GBS (1967) occvnniscccecivecasiscuveckdebasescasseews anders 10

IN RE Los Angeles County Pioneer Society, 217

F.2d 190 (9th Cir. 1954).......cccccccsccsserssesesesseres 16

Mann v. United States, 304 F.2d 394, 396, 397

(D.C. Cit. 1962) .....cccrcrscescsseccnvecesennsecneseceness 11

Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188

(TDD) a sccsncinssnscvennseninsoseuessegavensieshesaceaveseass 10

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.

2593, 2600, 33 L.Ed.2d 484 (1972) ...............eeeee 14

Nickens v. United States, 323 F.2d 807 (D.C. Cir.

TOES) wi svcvsscnvaniicsnchcskcacivesisisevcesessonentveveveeses 12

People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891

(Q9SS) vcvevasenescncsnescchinanspearen causes cheugesive dcacence 9

Pollard v. United States, 352 U.S. 354, 361-62

ODDS aca vsvinsccvcnasesanscevavsancascuntensvansavcvnceesse> 11

Regina v. Robbins, 1 Cox C.C. 114..........cceeeeeeseseeeees 10

IN RE Ruffolo, 390 US 544, 88 S.Ct. 1222, reh

denied 391 US 961, 88 S.Ct. 1833 (1968)... 12, 13, 16

vii

TABLE OF AUTHORITIES

Page

Cases Cited:

EX PARTE Secombe, 60 U.S. (19 How.) 9, 13

PRUNE insure du icnscbon tates ickinbilelinkinducisaebessentaves 15

Strunk v. United States, 412 U.S. 434, 93 S.Ct.

EA SF Seti k Gescensincciccdacbeiisbivinnenaninaheiwe 10

Taylor v. United States, 238 F.2d 259 (D.C. Cir.

po SUCRE Tomy TUT Syn POL ENTE Lely nay eet 11-12

United States v. Provoo, 350 U.S. 857 (1955)........... 11-12

United States v. Lustman, 258 F.2d 476.............ccceeeeee: 12

Willner v. Committee on Character and Fitness, 373

U.S. 96, 102 S.Ct. 175, 1179-1180, 19

ETB Oe ZC IDGSD ccissk nt icedsdicecsdyea ca vous 14-15, 16

Wisconsin v. Constartinuau, 400 U.S. 433, 437, 91

SOX. S07, 510, 27 Lie SES CAITA). eciivesecccins 16

Statutes Cited:

N.Y. Public Health Law §230(10)(d).................4 x, 6, 18

N.Y. Public Health Law §230(10)(f) .......e+eeseseeee- x, 3,17

N.Y. Education Law §6510(d)..................00.. x, 4, 6, 18

United States Constitution, Sixth Amendment................ 12

United States Constitution, Fourteenth

pt. IDES RR Eee ac CIE Ne RE ix, x, 2, 4, 18

viii

JURISDICTIONAL STATEMENT

FOR THIS COURT

Jurisdiction for this Court is predicated upon issues

affecting the due process and equal protection clauses of the

Fourteenth Amendment of the United States Constitution.

A petition for rehearing was made to the Appellate

Division of the Supreme Court, the State of New York, Third

Department and was denied on May 28, 1998.

Les)

CONSTITUTIONAL AND

STATUTORY AUTHORITIES

. United States Constitution, Fourteenth Amendment, due

process and equal protection clauses thereof.

Section 230(10)(d) of the Public Health Law of the State

of New York.

Section 230(10)(f) of the Public Health Law of the State of

New York.

. Section 6510(d) of the State Education Law of the State of

New York.

OPINIONS BELOW

The opinions of the Supreme Court of the State of New

York, Appellate Division, Third Judicial Department, the

decisions of Mr. Justice Francis Pecora of the Supreme Court

of the State of New York, County of New York, the decision

of the Board of Regents of the State of New York and the

memorandum decisions of the New York Supreme Court,

Appellate Division, Third Judicial Department, denying leave

to appeal to the Court of Appeals and denying a rehearing are

also included in the appendix of this petition.

No.

In the United States Supreme Court

OcToBeER TERM, 1997

| NATHANIEL SHAFER, M_.D.,

| Petitioner,

-V.-

THE BOARD OF REGENTS

OF THE STATE OF NEW YORK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

NEW YORK—APPELLATE DIVISION,

THIRD JUDICIAL DEPARTMENT

PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

The Petitioner, Nathaniel Shafer, M.D., has petitioned this

Court to review the determination of the Supreme Court of the

State of New York, Appellate Division, Third Judicial

Department, which Court had affirmed the determination of

the Board of Regents of the State of New York, which had

sustained, in turn, the determination of the Office of

Professional Medical Conduct (OPMC) only in part, to the

extent that the Petitioner was not suspended from practice,

was not put on probation but was fined $10,000 for an alleged

dereliction in his record keeping.

The care and treatment of patients was not involved, since

there was no allegation that any patient suffered from lack of

proper care or treatment.

The Board of Regents in essence found that the Petitioner

had failed to “maintain records that accurately reflect the

evaluation and treatment of Patients “A” and “B” in that the

progress notes of these patients are almost identical and do not

accurately reflect the condition of those patients on January

21, 22, 23, and 24, 1983; and the Respondent [Petitioner] is

not guilty of the remaining specifications and charges.”

The reason we are petitioning this Court is because we

maintain that the Petitioner’s rights under the Fourteenth

Amendment of the United States Constitution concerning due

process of law and equal protection of laws was violated by

the determination of the Respondent and the Appellate

Division of the Supreme Court of the State of New York,

third Judicial Department.

We base that upon the fact that the charges against the

Petitioner, at the time of the filing of the Article 78 Proceeding

in the Appellate Division, Third Judicial Department were

about fourteen years old and that for over four and a quarter

years following the alleged misconduct on the part of the

Petitioner herein, he was kept in the dark and was completely

unaware that any investigation of his conduct was being

conducted. He was totally ignorant of those charges until the

charges were finally served upon him after over four and a

quarter years following their alleged commission.

It is extremely significant that no suggestion was ever

made that any patient had ever received improper care and

attention!

The Petitioner has been a well respected medical doctor

practicing in the State of New York for over four decades. His

credentials are impeccable. No complaint against him was ever

filed before or after the instant one.

In addition to the unusual and we believe unconstitutional

delay in bringing the charges against him, the Petitioner was

also denied equal protection of the laws because of the fact that

pursuant to §230(10)(f) of the Public Health Law of the State

of New York, Shafer was denied a panel hearing before the

OPMC, which should have consisted of three members but in

essence turned out to be only one member.

The reason we say that, is that the original three member

panel, was disbanded when two of its members, for whatever

reason, left and no longer served as part of the hearing panel.

Before they left however, the only substantive witness against

Dr. Shafer, Nurse Graham, had testified and the panel at that

time had gone into executive session where no minutes were

taken.

Subsequent to that two new panels were added to make the

panel of three, but they could only read the minutes that were

available.

The statute however, namely §230(10)(f) of the Public

Health Law specifically declares that only one member of a

panel, hearing a disciplinary proceeding against a doctor can

be substituted. In this case two members of the hearing panel

were substituted over the objections of the Petitioner. _

Furthermore, the Petitioner maintains that his rights were

further violated in contradiction of the Fourteenth Amendment

of the United States Constitution because §6510 of the State

Education Law of the State of New York was violated when

amended charges against him were served upon him during

the progress of the hearing, without giving him the statutorily

mandated fifteen days notice. To this the Petitioner also

objected.

The record shows Petitioner was allowed only about five

minutes to review the amended charges and presumably the

panel of the OPMC conducting the hearing had about the same

time to review them.

Furthermore, to exacerbate the situation, the administrative

law judge who presided at the hearing before the OPMC

refused to enforce subpoenae signed by him and served upon

the OPMC which refused to produce certain important

records. The administrative law judge refused to in anyway

enforce those subpoenae. Yet the administrative law judge

insisted that the Petitioner proceed with the hearing.

In this context, a hearing and hearings were conducted on

May 14, June 4, and August 10, 1987.

From that point, this matter was brought before Justice

Pecora of ihe Supreme Court, New York County, as a result

of Court-ordered stays involving an Article 78 petition on

August 17, 1987, the first of several motions addressed to the

Petitioner’s desire to obtain various records including the

Petitioner’s personnel file pursuant to the Administrative

Judge’s subpoenae. His decision and opinion as a matter of

fact, impelled Justice Pecora to characterize what followed “as

games of ‘cat and mouse’ where in the records ordered to be

supplied were in effect, were only partially supplied.” On

February 21, 1990, Supreme Court of the State of New York

ordered and directed, that its orders were to be complied with

immediately.

Again the OPMC was instructed and directed to turn over

to Petitioner’s attorney and documents, minutes, and/or

memoranda which would aid the Petitioner in his defense.

Instead of complying, John J. O’ Grady from the Attorney

General’s office sent a letter to Justice Pecora declaring:

Since the Health Department has rested its

direct case on August 10, 1987, Dr. Doe

[Shafer] has complete discovery of all the

evidence and all the testimony against him. He

needs no Bill of Particulars. He has the Health

Department’s entire case. Your [Justice Pecora]

direction for a Bill of Particulars is

unnecessary...there is nothing further for the

Health Department to do to comply with your

order.

The foregoing therefore indicates that the Office of

Professional Medical Conduct and the Attorney General of the

State of New York, speaking on its behalf, assured Justice

Pecora that the case against Dr. Shafer had been concluded.

The audacity of Mr. O’ Grady’s statement can be

characterized only as contemptuous since the statements are

untrue and in result declined to follow and obey the orders of

Justice Pecora requiring them to provide a Bill of Particulars.

As a matter of fact it was the OPMC which invited Justice

Pecora to review the minutes it supplied to him of the hearing

on the grounds that the case had been completed so far as they

were concerned and based upon that completed case, Justice

Pecora issued his scathing decision and opinion dismissing the

charges in toto against Dr. Shafer.

We also ask this Court to note that the Adminis irative Law

Judge presiding at the hearing before the panel which was

trying Dr. Shafer, in many cases totally ignored the OPMC’s

disobedience of orders of the Administrative Judge and in

many cases the OPMC refused to obey his subpoenae. We

maintain this was a denial of due process of law.

Added to this was the fact that the charges were amended

two days before the commencement of the hearing which

rendered it jurisdictionally improper and was both

unconstitutional and a mockery of justice. Twenty days notice

of charges is mandatory before any hearing can be commenced

and this therefore denied Petitioner his rights to a fair hearing.

(See, §230(10)(d) of the Public Health Law, and §6510(d) of

the State Education Law).

To exacerbate the denial of due process and a fair hearing,

we ask this Court to note the Administrative Judge presiding at

the hearing of Dr. Shafer refused to even impose any

sanctions on the OPMC for ignoring or disobeying the

subpoenae, and his orders.

For the convenience and assistance of this Court, we have

annexed an appendix which includes the decision and opinion

of Honorable Francis Pecora, Justice of the Supreme Court,

New York County, who had dismissed the complaint and

proceedings against Dr. Shafer, but because of jurisdictional

questions the Appellate Division, First Department remanded

the matter on the grounds the hearing was incomplete. The

opinion however, of Justice Pecora we believe is of

substantial significance and may be of help to this tribunal.

We might also point out from the stand point of denial of a

fair hearing and of due process of law on the part of the

OPMC that during the hearings and before any determination

had been made as a result of those hearings, the OPMC

disseminated scurrilous and inaccurate information to the

media indicating that Dr. Shafer had been guilty of

professional misconduct whereas in truth no determination had

been made because the hearings were still in esse. As part of

the addendum in the lower court we annexed a headline that

appeared in the New York Daily News that was extremely

hurtful to Dr. Shafer’s practice and constituted further denial

of due process of law under the circumstances. We of course

are also annexing a copy of the Appellate Division First

Department determination that it could not exercise jurisdiction

because the hearing had not concluded. The foregoing

exhibits, namely the decision of the Appellate Division First

Department and the outrageous publicity disseminated by the

Office of Professional Medical Conduct are all taken form the

record on appeal that was submitted by the OPMC and the

Attorney General to the Appellate Division First Department.

POINT I

THE SOLE SUBSTANTIVE WITNESS AGAINST

THE PETITIONER AT HIS DISCIPLINARY

HEARING WAS NURSE CATHERINE GRAHAM.

THERE WERE APPARENTLY SOME DISPUTES

BETWEEN DR. SHAFER AND NURSE GRAHAM.

PATIENT CARE AND TREATMENT WERE NOT

INVOLVED. ONLY ONE MEMBER OF THE

DISCIPLINARY PANEL THAT FINALLY

RENDERED A DECISION IN THIS CASE

ACTUALLY HEARD NURSE GRAHAM. THE

TWO OTHER SUBSTITUTE MEMBERS NEVER

SAW OR HEARD HER AND INDEED COULD NOT

EVEN REVIEW EVERYTHING THAT OCCURRED

DURING THAT PERIOD OF TIME BECAUSE OF

THE FACT THAT THE THEN EXISTING PANEL

WENT INTO EXECUTIVE SESSION WHERE NO

MINUTES WERE TAKEN. SOME OF THE

MINUTES WHERE NURSE GRAHAM TESTIFIED

WERE AVAILABLE FOR REVIEW BUT OF

COURSE INFLECTIONS, THE COUNTENANCE

OF THE WITNESS AND SO FORTH COULD NOT

BE REVIEWED. THE MATTER WAS THEN

REFERRED ON A PETITION TO SUPREME

COURT JUSTICE, NEW YORK COUNTY,

FRANCIS PECORA WHO WAS TOTALLY

SHOCKED AND NONPLUSED BY WHAT HAD

OCCURRED. ALL THE MINUTES THAT

EXISTED AT THAT TIME WERE TURNED OVER

TO JUSTICE PECORA BECAUSE OF THE FACT

THAT THE OFFICE OF PROFESSIONAL

MEDICAL CONDUCT (OPMC) STATED THAT

THEIR CASE WAS OVER AND HAD BEEN

FULLY PRESENTED.

Justice Pecora after carefully reviewing the entire record

that existed at that time, and noting the over four and one

quarter years that had elapsed between the alleged commission

of the violation and the notification of the Petitioner that a

complaint had been lodged was otherwise so shocked by the

inadequacy and unfairness of the proceedings that he

dismissed the complaint inter alia:

The purported case against Petitioner is based

on innuendo, improper opinion evidence,

improper expert opinion based upon

supposition, and not on the facts and evidence,

improper curtailment of cross examination,

improper admission and/or exclusion of

evidence or rulings which were

incomprehensible to this Court. In short there

was no actual proof of any wrongdoing by the

Petitioner.

The Court of Appeals in the case of People v. Prosser,

309 N.Y. 353, 130 N.E.2d 891 (1955), made it abundantly

clear that inordinate delay [laches] depriving a Defendant of

his statutory right to speedy justice depends upon

circumstances of each particular case. The Court of Appeals

added, however, the burden is on the state and not on the

Defendant, to see that he is brought to trial and his mere failure

to take action cannot be treated as a waiver of a statutory right

to speedy justice.

We would point out that the Petitioner is not the one who

caused the delay here. His frustration in not getting the items

which were ordered and subpoenaed did not contribute to

delay because of the fact it constituted a contempt of Court

committed by the OPMC in refusing to obey these subpoenae

and these orders.

Furthermore, keeping the Petitioner in the dark completely

for 4 1/4 years after the incidents despite the fact that the

investigation commenced in 1983, was unconscionable and

unconstitutional particularly since Dr. Shafer was not notified

until 1987 of the existence of the complaints.

The time for action on the part of the OPMC began when

the incidents occurred, not four years later. (See Dillingham v.

United States, 423 U.S. 64, 96 S.Ct. 303 (1975).

Furthermore, where there has been a denial of speedy

justice, the Supreme Court of the United States has held that

dismissal is the onl, remedy under those circumstances

(Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260

(1973).

While prejudice has c early been shown in this case, we

should point out that prejudice to the Petitioner is only one

factor and is not necessarily the only factor (Moore vy.

Arizona, 414 U.S. 25, 94 S.Ct. 188 (1973). See also,

Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686

(1992).

In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct.

988 (1967), the speedy trial requirement of the United States

Constitution is binding upon the state.

In 1844, an English Judge dealing with a problem similar

to that presented herein but involving less delay, opined very

aptly (Regina v. Robbins, 1 Cox C.C. 114):

I ought not to allow the case to go further. It is

monstrous to put a man on trial after such a

lapse of time. How can he account for his

conduct so far back?...If the charge be not

preferred for a year or more, how can he clear

ee ee

himself? No man’s life would be safe if such a

prosecution were permitted. It would be very

unjust to put him on his trial.

See 5 Stan. L.Rev 95, 104, (1952) “Justice overdue-

speedy trial for the pre-trial Defendant.”

In Mann v. United States, 304 F.2d 394, 396, 397 (D.C.

Cir. 1962), the Court of Appeals similarly noted:

Indeed, a suspect may be at a special

disadvantage when complaint or indictment or

arrest, is purposefully delayed. With no

knowledge that the criminal charges are to be

brought against them. An innocent man has no

reason to fix in his memory the happenings on

the day of the alleged crime.

Moreover, there is no way a suspect can compel or insist

that the government commence a prosecution; nor can a

Defendant determine when or if the government may decide to

prosecute. The “Sword of Damocles” may hang for the whole

period of limitations!

In Pollard v. United States, 352 U.S. 354, 361-62

(1957), the Supreme Court not only equated “purposeful”

delays with the “oppressive” ones forbidden by the Sixth

Amendment, but also interpreted United States v. Provoo, 350

U.S. 857 (1955), as condemning delay “caused by the

deliberate act of the-Governnient.”

It is apparent from Pollard v. United States, supra, 352

U.S. at 361, that the Supreme Court indicates that even an

indictment within the limitation period may come too late to

Square with the Sixth Amendment. [See Mann v. United

States, supra, 304 F.2d at 396-397, n. 4; Taylor v. United

: 11

States, 238 F.2d 259 (D.C. Cir. 1956); Nickens v. United

States, 323 F.2d 807 (D.C. Cir. 1963); United States v.

Provoo, supta.] See 18 U.S.C. §3282. This is a quasi-

criminal case. (See Jn Re Ruffalo, supra, 390 U.S. 544).

This Court has plenary power to review the actions below.

In United States v. Lustman, 258 F.2d 476, that Court

considered the affect of a very prolonged delay from the point

of view whether “prejudice” need be shown. At 258 F.2d

477, 478, that Court declared:

...A showing of prejudice is not required when

a criminal defendant is asserting a

constitutional night.

[Citing cases]. Continuing that Court

explained:

Thus we assume that the un-excused delay of

approximately four years was an undue delay

within the meaning of the Sixth Amendment

even though Appellant has not shown that it

prejudiced him in the prosecution of this

defense.

Of course, herein there was great prejudice.

a ee npg ot 1

POINT II

A DISCIPLINARY PROCEEDING SUCH AS THE

ONE AT BAR IS A “QUASI-CRIMINAL PROCED-

URE” AND IT IS THEREFORE COMPARABLE TO

A CRIMINAL RATHER THAN CIVIL PROCEED-

ING. THE HEARING BEFORE THE ADMINI-

STRATIVE JUDGE WHO REFUSED TO ENFORCE

THE SUBPOENAE THAT HE HAD <«SO-

ORDERED” AND THE FAILURE TO GRANT THE

STATUTORY 15 OR 20 DAY NOTICE OF HEAR-

ING, COUPLED WITH THE FAILURE TO SUP-

PLY NEEDED MATERIAL FOR THE DEFENSE

VIOLATED STATE AS WELL AS FEDERALLY

PROTECTED RIGHTS. THIS, COUPLED WITH

THE 4 1/4 YEARS UN-EXCUSED DELAY ON

BRINGING CHARGES, VIOLATED DR. SHA-

FER’S DUE PROCESS RIGHTS. JUSTICE

PECORA’S DETERMINATION TO DISMISS THE

CASE ALTOGETHER, WE SUBMIT, WAS

SOUND.

A disciplinary proceeding, whether it involves lawyers or

doctors, is similar and the laws pertaining thereto are similar.

The rights which devolve upon a person who becomes a

subject of a disciplinary proceeding must be scrupulously

protected.

A determination of suspension or disbarment form

practice, capable of destroying a physician’s reputation and

livelihood is a devastating sanction. For this reason the

Supreme Court of the United States has characterized this type

of proceeding as being “of a quasi-criminal nature”. (See, Jn

re Ruffalo, 390 U.S. 544, 551, 88 S.Ct. 1222, 1226, reh.

denied 391 U.S. 961, 88 S.Ct. 1833 (1968).

[I]n our Country a court’s disciplinary

proceeding against a member of its bar

[physician] is comparable to criminal rather

than a civil proceeding...[I}t cannot be disputed

that for most attorneys the license to practice

law represents their livelihood, loss of which

may be a greater punishment than a monetary

fine. See Bradley v. Fisher, 80 U.S. [13

Wall.] 335, 355, 20 L.Ed. 646 (1872);

Spevack v. Klein, 385 U.S. 511, 516, 87

S.Ct. 625, 17 L.Bd.2d 374 (1967).

Furthermore, disciplinary measures against an

attorney, while posing a threat of incarceration

only in cases of contempt, may threaten

another serious punishment—loss of

professional reputation. The stigma of such a

loss can harm the lawyer in his community and

in his client relations as well as adversely affect

his ability to carry out his professional

functions... (Emphasis is supplied.)

When an individual is faced with a criminal prosecution,

strict adherence to the full panoply of due process protection is

guaranteed. U.S. Const. Amends VI, XIV. In other

situations, the importance of the right as well as the need of

the state for summary procedures to carry out particular public

policies have been balanced in determining which procedural

protection must apply. See, e.g., Gross v. Lopez, 419 U.S.

565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (suspension of

students); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.

2593, 2600, 33 L.Ed.2d 484 (1972) (revocation of parole);

Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90

(1971) (suspension of driver’s license); Goldberg v. Kelly,

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)

(termination of relief payment); Willner v. Committee on

Character and Fitness, 373 U.S. 96, 102 S.Ct. 175, 1179-

a ania

‘ i

1180, 19 L.Ed.2d 224 (1963) (exclusion from bar); Joint

Anti-Fascist Comm. V. McGrath, 341 U.S. 123, 71 S.Ct. 95

L.Ed. 817 (1951) (listing of “subversive organization”).

In Johnson v. Avery, 393 U.S. 483, 490 n.11, 89 S.Ct.

747, 751 n. 11 (1969) the Supreme Court of the United States

cautioned:

The power of the States to control the practice

of law [medicine] cannot be exercised so as to

abrogate federally protected rights.

See also, Ex Parte Secombe, 60 U.S. (19 How.) 9, 13

(1856); In Re Fisher, 179 F.2d 361, 369 (7th Cir. 1950) cert.

denied, sub. nom Kerner v. Fisher, 340 U.S. 825, 71 S.Ct.

59 (1950).

Justice Pecora found that the Petitioner was denied even

the fundamental right to have his subpoenae enforced, and

because of the delay involved, could not even find the

patients, secretary or other witnesses, with few exceptions,

that he had a right to confront and/or cross examine. Thus for

all intents and purposes, the Petitioner really had only an

illusionary opportunity to be heard. He did not know most of

the evidence upon which the complaint was based; he could

not examine the patients who were allegedly involved; he

could not find his secretary who he then employed four and

one half years earlier and a fair amount of “evidence” had been

lost or destroyed by the OPMC. On top of that, the OPMC

refused to turn over subpoenaed material despite the

Administrative Judge’s “so-ordered” endorsements. They only

gave him two days’ notice of amended charges and directed

that he proceed with only five minutes of preparation, and in

essence the hearing was a mockery of justice.

“The fundamental requisite of due process is the

opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385,

34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Particularly when

a person’s good name, integrity, reputation or honor is at

stake because of government action, a full and fair hearing

should include, at the very least, notice of the charges or

complaint, disclosure of the evidence supporting the charges,

and an opportunity to be heard and to confront and cross

examine witnesses. See, e.g. Board of Regents v. Roth, 408

U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548

(1972); Wisconsin v. Constantinuau, 400 U.S. 433, 437, 91

S.Ct. 507, 510, 27 L.Ed.2d 515 (1971); Willner v. Comm.

on Character & Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175,

1180, 10 L.Ed.2d 224 (1963); Greene v. McElroy, 360 U.S.

474, 492, 496- 97, 79 S.Ct. 1400, 1411, 1413, 3 L.Ed.2d

1377 (1959).

It follows that in any disciplinary proceeding, due process

requires a reasonable opportunity to present a defense to the

trier. See, e.g. In Re Ruffolo, 390 U.S. 544, 88 S.Ct. 1222,

20 L.Ed.2d 117, reh. denied, 391 U.S. 961, 88 S.Ct. 1833,

20 L.Ed.2d 874 (1967); Kivitz v. SEC, 475 F.2d 956 (D.C.

Cir. 1973); In Re Los Angeles County Pioneer Society, 217

F.2d 190 (9th Cir. 1954). The hearing “must be granted....in

a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545,

85 S.Ct. 1187, 1191, 14 L.Ed.2 62 (1965).

In the foregoing it is therefore obvious that the full

panoply of constitutional rights that appertain to «ven criminal

proceedings had to be provided to the Petitioner herein by the

administrative judge but were not.”

See Appendix C to this Petition, Justice Pecora’s opinion

dismissing the charges against Petitioner.

POINT III

WE HAVE ALREADY ADVERTED CONCISELY IN

THE FOREGOING PASSAGES OF THIS BRIEF

THAT JURISDICTIONALLY THE PROCEEDINGS

AGAINST DR. SHAFER ARE SERIOUSLY

FLAWED IN BLATANT VIOLATION OF THE

RULES AND STATUTES PERTAINING TO

HEARINGS BEFORE THE OFFICE OF PROFES-

SIONAL MEDICAL CONDUCT BY VIRTUE OF

THE FACT THAT TWO OF ONLY THREE :

MEMBERS OF THE HEARING PANEL WERE

REPLACED DURING THE PROCEEDINGS, OVER

OBJECTION OF THE PETITIONER, IN VIOLA-

TION OF SECTION 230(10)(f) OF THE PUBLIC

HEALTH LAW. FURTHERMORE, THE JURiS-

DICTIONAL ASPECTS OF THIS CASE WERE

ALSO VIOLATED BY VIRTUE OF THE FACT

THAT IN VIOLATION SECTION 6510(d) OF THE

STATE EDUCATION LAW AND SECTION

230(10)(d) OF THE PUBLIC HEALTH LAW LESS

THAN 15 DAYS NOTICE WAS GIVEN TO THE

PETITIONER WHEN AMENDED CHARGES

WERE SERVED UPON HIM DURING THE

PROGRESS OF THE HEARING. THIS WAS ALSO

OVER OBJECTION OF THE PETITIONER.

ACCORDINGLY WE MAINTAIN THAT EVEN

JURISDICTIONALLY, THE PROCEEDINGS

WERE IN VIOLATION OF STATUTES, RULES

AND WHAT WE PERCEIVED AS DUE PROCESS

OF LAW.

Ee eee

We have already set forth the fact that pursuant to statute,

namely Section 230(10)(f) of the Public Health Law, during

the progress of this kind of disciplinary hearing of a

physician, only one member of a panel can be replaced over

the objection of the Petitioner in the event of death or other

incapacity. The panel consisted of only three (3) members.

In the case at bar, however, over objection of the

Petitioner, two members of the panel were replaced and

consequently we maintain that this deprived the hearing panel

of jurisdiction.

This was most important because of the fact that the only

substantive witness for the OPMC was Nurse Catherine

Graham, who testified early in these proceedings, albeit

several years after the incidents about which she testified

having occurred.

Since two members of the hearing panel that finally

decided this case had been replaced over objection of the

Petitioner, we maintain that this was a clear violation of the

Public Health Law, which we just cited, and violated equal

protection under the Fourteenth Amendment.

In addition to the foregoing, the Petitioner was served with

amended charges during the progress of the hearing, a fact to

which we have already adverted early in this brief with less

than statutorily required 15 days of notification. This violated

§230(10)(d) of the Public Health Law, and §6510(d) of the

State Education Law, which requires at least 15 days before

any notice charges can be preferred against a physician. Thus

we maintain that the OPMC never obtained proper jurisdiction

over this case. This also violated the Fourteenth Amendment.

CONCLUSION

The petition should be granted and the charges against the

Petitioner should be dismissed.

Dated: New York, New York

August 20, 1998

Respectfully submitted,

IRVING ANOLIK

Attorney for Petitioner

225 Broadway—Suite 1902

New York, New York 10007

(212) 732-3050

Counsel of Record and

A Member of The Bar

Of This Court |

APPENDIX A

Statement of Charges Dated March 27, 1987

STATE OF NEW YORK : DEPARTMENT OF HEALTH

STATE BOARD FOR PROFESSIONAL

MEDICAL CONDUCT

IN THE MATTER STATEMENT

OF OF

NATHANIEL SHAFER, M.D. CHARGES

The State Board for Professional Medical Conduct alleges

as follows:

1. NATHANIEL SHAFER, M.D., hereinafter referred to

as the Respondent, was authorized to engage in the practice of

medicine in the State of New York on August 31, 1955 by the

issuance of license number 076953 by the State Education

Department.

2. Respondent is currently registered with the New York

State Education Department to practice medicine for the period

January 1, 1986 through December 31, 1988 at 10 East 58th

Street, New York, New York 10028.

| 3. Respondent is charged with professional misconduct

| within the purview of N.Y. Educ. Law §6509 (McKinney

1985) as set forth in the specifications.

FIRST SPECIFICATION

4. Respondent is charged with professional misconduct

by permitting, aiding or abetting an unlicensed person to

eee

ews

perform activities requiring a license within the meaning of

N.Y. Educ. Law §6509(7) (McKinney 1985), in that:

(i) Respondent, with his full knowledge and consent,

permitted and allowed an unlicensed person to assess

Patient A (patients denominated alphabetically are

identified in Appendix A) and to write progress notes

on the patient’s hospital chart, for the following dates:

January 20, 21, 22, 23, and 24, 1983, while Patient A

was hospitalized at St. Clare’s Hospital and Health

Center, New York, New York.

(ii) Respondent, with his full knowledge and consent

allowed an unlicensed person to assess Patient B and

to write progress notes on the patients’s [sic] hospital

chart, for the following dates: January 20, 21, 22, 23,

and 24, 1983, while Patient B was hospitalized at St.

Clare’s Hospital and Health Center, New York, New

York.

(iii) Respondent, with his full knowledge and consent

allowed an unlicensed person to assess Patient C and

to write progress notes on the patient’s hospital chart,

for the following dates: January 23 through January

26, 1983, while Patient C was hospitalized at St.

Clare’s Hospital and Health Center, New York, New

York.

SECOND SPECIFICATION

5. Respondent is charged with professional misconduct

within the meaning of N.Y. Educ. Law §6509(9) (McKinney

1985) in that he committed unprofessional conduct within the

meaning of 8 N.Y.C.R.R. 29.1(b)(10) in that Respondent

delegated professional responsibilities to a person when the

Respondent knew or had reason to know that such person was

not qualified by training, by experience or by licensure, to

perform them, specifically:

Petitioner repeats each allegation of the First

Specification as set forth in paragraph 4(i), (ii), and

(iii) of this Statement of Charges.

THIRD SPECIFICATION

6. Respondent is charged with professional misconduct

within the meaning of N.Y. Educ. Law §$6509(2) (McKinney

1985) in that he practiced the profession fraudulently,

specifically:

(i) Respondent mage and/or caused to be made entries

in the hospital records of St. Clare’s Hospital and

Health Center which falsely represented the dates of

the visits and/or the patient’s condition and/or the

examination performed and/or by whom the

examinations were performed for patient A through F.

FOURTH SPECIFICATION

7. Respondent is charged with professional misconduct

within the meaning of N.Y. Educ. Law §6509(9) (McKinney

1985) in that he committed unprofessional conduct within the

meaning of 8 N.Y.C.R.R. 29.2(a)(3) in that he failed to

maintain records which accurately reflect the evaluation and

treatment of patients A through F.

DATED: Albany, New York

March 27, 1987

KATHLEEN M. TANNER

Director

Office of Professional

Medical Conduct

APPENDIX B

Amended Statement of Charges

Dated May 12, 1987

STATE OF NEW YORK : DEPARTMENT OF HEALTH

STATE BOARD FOR PROFESSIONAL

MEDICAL CONDUCT

AMENDED

IN THE MATTER STATEMENT

OF OF

NATHANIEL SHAFER, M.D. CHARGES

The State Board for Professional Medical Conduct alleges

as follows:

1. The State Board for Professional Medical Conduct

repeats and realleges each allegation contained within the

Statement of Charges dated March 27, 1987 and served on

Respondent Nathaniel Shafer, M.D. on April 22, 1987.

2. The State Board for Professional Medical Conduct

amends the Third Specification of the Statement of Charges,

paragraph six, to include the following:

(ii) Respondent submitted a bill for services

purportedly rendered to Patient A, to the medical

benefits carrier for said patient which bill falsely

represented that Respondent had conducted ten

follow-up hospital visits for Patient A at St.

Clare’s Hospital and Health Center between

January 21, 1983 and January 30, 1983.

DATED: Albany, New York

May 12, 1987

ta ies i AONB RA ARPS ea Ae el A a lie oe fe Sao Ma!

OF GRC aa Sd tech? Mh stan SG i Sah PCA

/s/

KATHLEEN M. TANNER

Director

Office of Professional

Medical Conduct

APPENDIX C

Memorandum Decision of the Supreme Court of the

State of New York, County of New York, (Jusiice

Francis N. Pecora) Dated January 29, 1992

SUPREME COURT, NEW YORK COUNTY

LAS PART 52

JOHN DOE, M.D.,

Petitioner, Index No.

-against- 19953/87

ST. CLARE’S HOSPITAL AND HEALTH

CENTER and THE OFFICE OF

PROFESSIONAL MEDICAL CONDUCT,

Respondents.

FRANCIS N. PECORA, J.:

The petitioner, a physician, moves for dismissal of the

complaint brought by the Office of Professional Medical

Conduct (hereinafter “OPMC”) and/or to prohibit further

prosecution of the complaint on several grounds, some of

which will hereinafter be addressed.

The relevant facts are as follows: the petitioner, a Board

Certified Internist, is a physician licensed to practice in the

State of New York since 1955. He became associated with St.

Clare’s Hospital in New York City in 1982.

In the month of January, 1983, several alleged problems

presented themselves regarding the manner in which entries

were being made in the records of several patients at St.

UOT ped gS ph

tiara

Wiesenthal ace ahit ae ibs cll MOA RAT se

ht aia cot

Clare’s H[o]spital, apparently in violation of hospital

regulations. An internal investigation was commenced by

various persons and committees within the hospital, without

notice to the petitioner until some time after all the patients

whose records were involved, had been released from the

hospital.

In May, 1983, petitioner resigned his privileges at the

hospital.

On April 22, 1987, a period of four (4) years and three (3)

months from the time of the alleged acts of misconduct,

petitioner was served with a Notice of Hearing to be

conducted by the aforesaid OPMC on May 14, 1987. Attached

to the notice was a Statement of Charges containing four (4)

specifications. It is alleged that during this period in excess of

four (4) years, petitioner, unaware that a complaint had been

lodged against him by the hospital, did nothing to try to

protect himself against possible charges, such as securing

swom statements from the patients involved or from the

secretary who allegedly was permitted to “assess” patients and

who was and is now no longer in the petitioner’s employ and

cannot be located.

On May 12, 1987, two (2) days before the hearing, the

petitioner’s attorney was served with amended charges. The

Board accepted the amended charges and proceeded upon

these charges despite an obviously jurisdictional defect.

Objection to these amended charges was made by defense

counsel at the hearing, but same were accepted over his

obiection. A reading of the transcript indicates that the Board

took a five (5) minute recess to read these amended charges.

Presumably, the petitioner was afforded these very same five

(5) minutes to prepare his defenses to these additional charges.

On May 13, 1987, petitioner’s attorney, in an effort to

provide a defense as well as to engage in reasonable cross-

examination of witnesses produced by OPMC, served a

subpoena signed by the Administrative Judge providing for

the production of various records. This subpoena apparently

was not honored and counsel for petitioner, despite a protest

to the Administrative Judge, was obliged to conduct his cross-

examination of the witnesses without benefit of the documents

deemed by him to be essential to conduct a meaningful cross-

examination.

A subsequent subpoena was signed on July 13, 1987

which also was not honored. In the interim, to the total

detriment and prejudice of the petitioner, the Administrative

Judge compelled the petitioner to proceed with the hearings,

which weze conducted on May 14, 1987, June 4, 1987, and

August 10, 1987.

From that point, this matter has been before this court as a

result of court-ordered stays commencing with a motion on

August 17, 1987, the first of several motions addressed to the

petitioner’s desire to obtain various records, including the

petitioner’s personnel file, pursuant to the Administrative

Judge’s subpoena. What followed was a series of what can

only be characterized as games of “cat and mouse” wherein the

records ordered to be [supplied] were in effect, only partially

supplied.

At a hearing held on February 21, 1990, this court made

several directions which were to be complied with immediately

by respondent. A formal order was signed directing a turning

over to petitioner’s attorney any documents, minutes, and/or

memoranda, which would aid the petitioner in his defense.

Throughout this time, this court did not understand the

charges made against the petitioner, and the explanation given

by respondent’s attorney was something less than

enlightening. This court, accordingly, directed respondent to

serve upon the petitioner’s attorney what it called a “bill of

particulars” wherein respondent was to supply the petitioner

with the basis for the charges being made.

In lieu of a bill of particulars, the court received a letter

dated March 1, 1990 from the Attorney General’s office,

signed by one John J. O’Grady, which contains the following

language:

“Since the Health Department has rested its

direct case on August 10, 1987, Dr. Doe has had

complete discovery of-all the evidence and all the

testimony against him. He needs no Bill of

Particulars. He has the Health Department’s entire

case. Your direction for a bill of particulars is

unnecessary.

Since the Health Department’s direct case has

been concluded, all the documentary evidence

against the doctor is already a matter of record.

There is nothing further for the Health Department

to do to comply with your order.”

: A complete copy of the minutes of the Administrative

| Hearing were supplied by the Attorney General, and, with the

4 [aforesaid] letter’s implicit suggestion to so do, this court

: “searched the record” to ascertain whether the respondent’s

‘ position re the bill of particulars was correct.

A reading of these minutes presented this court with a

dilemma. This court is fully aware that the hearing was not

completed, and that the court should not, under normal

| circumstances, interject itself into the administrative process

: until the petitioner exhausted his administrative remedies. Yet,

by the language of the letter, this court was invited to read the

: minutes wherein the entire case against the petitioner was

completed. Thus this court finds that the evidence presented

by the prosecutor is insufficient, as a matter of law, to support

the charges.

} The purported case against petitioner is based on

innuendo, improper opinion evidence, improper expert

opinions based on supposition, and, not on facts in evidence,

improper curtailment of cross-examination, improper

admission and/or exclusion of evidence and rulings which

were incomprehensible to this court. In short, there was no

actual proof of any wrongdoing by the petitioner.

When the State rested its case, a motion to dismiss was

made by petitioner’s counsel. The disposition of this motion

by the Administrative Officer was:

“At this point the motion to dismiss will not be

entertained pursuant to the general practice of the

Department that motions to dismiss at the end of the

Department’s case are not entertained.”

This court has an uneasy feeling about this disposition. If

such a rule does exist, it should be changed.

In any event, this court having been invited to “search the

record,” has done so, and now does what the Administrative

Officer should have done upon completion of the [state’s]

case, and that is, grant the motion.

Accordingly, petitioner’s motion to dismiss the complaint

brought by the Office of Professional Medical Conduct is

granted.

This constitutes the decision and judgment of this Court.

Dated: January 29, 1992

/s/

A10

BS hy ee ae ¥

ee art idle Se oe Be

PEE PP ELBE WAR 2 Ni hth EE Se en AD ee

APPENDIX D

Decision and Order of the Appellate Division,

First Department, Dated June 8, 1993,

with Notice of Entry

Sullivan, J.F., Carro, Ellerin, Rubin, JJ.

48662

John Doe, M.D.,

Petitioner-Respondent,

-against-

St. Clare’s Hospital and Health Center,

Respondent,

-and-

The Office of Professional Medical Conduct,

Respondent-Appellant.

Judgment, Supreme Court, New York County (Francis N.

Pecora, J.), entered February 20, 1992, which granted

petitioner’s CPLR article 78 petition and dismissed the

complaint in an administrative disciplinary proceeding brought

by the Office of Professional Medical Conduct, unanimously

reversed, on the law, without costs, the petition is dismissed,

and the matter is remanded to the administrative agency for

further proceedings.

In April 1987, charges of misconduct were served upon

the petitioner, a physician, by the Office of Professional

Medical Conduct (OPMC), a branch of the New York State

Department of Health. An administrative hearing on the

charges commenced on May 14, 1987. After presenting its

witnesses and exhibits, the OPMC prosecution rested its case

on August 10, 1987. On August 17, 1987, petitioner

commenced a CPLR article 78 proceeding in Supreme Court

All

seeking to compel compliance with certain subpoenas and

seeking a stay of further administrative proceedings pending

compliance. Litigation continued around this compliance

order, which was ultimately issued, until, in a decision dated

February 27, 1990, the IAS court found “A reading of the

specifications has convinced this court that the petitioner,

‘John Doe’ should be supplied with a bill of particulars of the

proof which will be used to prove the specifications in the

charge.” By letter dated March 1, 1990, OPMC reminded the

court that OPMC had rested its case in the administrative

proceeding against petitioner and that, accordingly, petitioner

had complete discovery of the case against him so that a bill of

particulars was unneeded. The court refused to modify its

order. On February 5, 1991, the petitioner served OPMC with

a demand for a bill of particulars, the response to which

incorporated the administrative record below.

On March 18, 1991, the petitioner moved to dismiss the

charges before the OPMC hearing board on the grounds of

“jurisdictional defects, laches and disregard for court orders.”

The IAS court, after reviewing the record of agency

proceedings to determine whether there was sufficient

compliance with its prior order to submit for a bill of

particulars, found the evidence presented to be insufficient as a

matter of law to support the charges against the petitioner and

dismissed those charges. OPMC here appeals that dismissal.

“It is hornbook law that one who objects to the act of an

administrative agency must exhaust available administrative

remedies before being permitted to litigate in a court of law.”

(Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57).

“The doctrine of exhaustion of administrative remedies

requires ‘litigants to address their complaints initially to

administrative tribunals, rather than to the courts, and * * * to

exhaust all possibilities of obtaining relief through

administrative channels before appealing to the courts’”.

Al2

(Young Men’s Christian Assn. v Rochester Pure Waters Dist.,

37 NY2d 371, 375 [citation omitted]; see also, Matter of

Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 180, cert

denied 476 US 1115).

Thus, absent extraordinary circumstances, courts are

constrained not to interject themselves into ongoing

administrative proceedings until final resolution of those

proceedings before the agency. Here, the court erred in

dismissing the complaint against the petitioner prior to final

adjudication on an administrative level and, accordingly, the

judgment granting petitioner’s CPLR article 78 petition must

be reversed and the matter remanded to the Office of

Professional Medical Conduct for further proceedings.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION,

FIRST DEPARTMENT

Entered: June 8, 1993

/s/

Clerk

Al3

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : FIRST DEPARTMENT

JOHN DOE, M.D.,

Petitioner-Respondent, 48662

-against-

ST. CLARE’S HOSPITAL NOTICE

and HEALTH CENTER, OF ENTRY

Respondent,

-and-

THE OFFICE OF PROFESSIONAL MEDICAL

CONDUCT,

Respondent-Appellant.

PLEASE TAKE NOTICE that the within is a true and

complete copy of a decision and order duly filed and entered in

the office of the Clerk of the Court, Supreme Court of the

State of New York, Appellate Division: First Department, on

June 8, 1993.

Dated: New York, New York

June 28, 1993

Yours, etc.,

ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Respondent-

Appellant

120 Broadway

New York, New York 10271

(212) 416-8579

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APPENDIX E

Report of Regents Review Committee

Dated February 19, 1996

THE UNIVERSITY OF THE STATE OF NEW YORK

IN THE MATTER

of the

Disciplinary Proceeding

against

NATHANIEL SHAFER

No. 15551

who is currently licensed to practice

as a physician in the State of New York.

REPORT OF THE REGENTS REVIEW COMMITTEE

NATHANIEL SHAFER, hereinafter referred to as

respondent, was licensed to practice as a physician in the State

of New York by the New York State Education Department.

The instant disciplinary proceeding was properly

commenced and on May 14, 1987, June 4, 1987, August 10,

1987, November 29, 1988, April 27, 1994, May 11, 1994,

May 12, 1994, June 2, 1994, and June 24, 1994, a hearing

was held before a hearing committee of the State Board for

Professional Medical Conduct. A copy of the statement of

charges and amended statement of charges are annexed heretw.

made a part hereof, and marked as Exhibit “A”.

The hearing Committee rendered a report of its findings,

conclusions, and recommendation, a copy of which is

annexed hereto, made a part hereof, and marked as Exhibit

ype

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The hearing committee concluded that respondent was

guilty of subparagraph (i) of the third specification as to

Patient A, subparagraph (ii) of the third specification, and the

fourth specification as to Patients A and B, and was not guilty

of the remaining specifications and charges. The hearing

committee recommended that respondent be suspended for six

months, assessed a $20,000 penalty (calculated by fining

respondent $10,000 each for the third and fourth

specifications), and required to take a course in ethics.

The Commissioner of Health, by his designee,

recommended to the Board of Regents that the findings of fact

and conclusions of the hearing committee be accepted, the

recommendation of the hearing committee be modified, and

the respondent be censured and reprimanded, fined $20,000

as recommended by the hearing committee, and be required to

take a course on ethics related to medical practice. A copy of

the recommendation of the Commissioner of Health is

annexed hereto, made a part hereof, and marked as Exhibit

On May 23, 1995, respondent appeared before us in

person and was represented by his attorneys, Orin E. Agri,

Esq. and Irving [Anolik], Esq., who presented oral argument

on behalf of respondent. Silvia Finkelstein, Esq., presented

oral argument on behalf of the Department of Health.

Petitioner’s recommendation as to the measure of

discipline to be imposed, should respondent be found guilty,

was that respondent’s license be suspended for six months

and respondent be fined $20,000 and required to take a course

in ethics.

Respondent’s recommendation as to the measure of

discipline to be iraposed, should respondent be found guilty,

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(oo EEE EEE

was that any penalty should be limited to an admonition,

however, all charges should be dismissed.

We have considered the record transferred to us by the

Department of Health.

At oral argument before us, petitioner’s attorney asserted

that the hearing committee’s rationale for the penalty it

recommends is sound: and the rationale of the designee of the

Health Commissioner for the penalty he recommends is not

sound. Respondent’s attorney explained that if we do not

agree with his recommendation to dismiss all of the charges,

an “admonition” for respondent not to repeat his prior conduct

would be the maximum sanction warranted. Respondent’s

attorney contended that respondent was a “top notch citizen”

and “an honorable physician” with an unblemished record.

Respondent’s attorney indicated, at oral argument, that his

“primary argument” is that the substitution of two members of

the hearing committee was improper as a matter of law. We

disagree. Nothing in Public Health Law §230(10)(f) requires

the discontinuation of the hearing in the event of the

substitution of two members. Laverne v. Sobol, 149 A.D.2d

758 (3rd Dept. 1989); and Park v. Board of Regents of the

University of the State of New York, A.D.2d ___ (3rd

Dept. 1995). Respondent has not cited any authority to

support his assertion that an “illegal hearing” was conducted in

view of this substitution of hearing committee members.

We also reject respondent’s further assertion that the

hearing committee prematurely determined the issue of the

credibility of witnesses before the completion of the hearing.

We find such contention to be unsupported by the record.

Respondent has failed to demonstrate that he suffered any

actual harm or prejudice at the hearing or that the hearing

Al17

committee members were biased or prejudiced. See,

Nehorayoff v. Fernandez, 91 A.D.2d 833 (3rd Dept. 1993).

We agree with and accept the hearing commitie’s

assessments, shown on pages 13-15 of its report, as to the

credibility of Patient A, Lydia Hochberg, and respondent.

In our unanimous opinion, respondent is guilty, by a

preponderance of the evidence, of fraud as alleged in

subparagraph (ii) of the third specification to the extent

indicated hereinafter. As the hearing committee concluded,

respondent “knowingly, and with intent to deceive, submitted

a bill to the medical benefits carrier which falsely claimed that

he had made follow-up hospital visits to Patient A” on January

21, 1983 and January 22, 1983. Hearing Committee report

page 17. Accordingly, respondent, with fraudulent intent,

falsely represented, in the bill for services he submitted, that

he had conducted a total of ten follow-up hospital visits for

Patient A between January 21, 1983 and January 30, 1983

when respondent, as he knew, did not visit Patient A on

January 21, 1983 and January 22, 1983.

We do not sustain subparagraph (i) of the third

specification. The hearing committee did not render ary

conclusion or findings establishing respondent’s intent with

respect to the hospital record for Patient A and for Patient B

and, in spite thereof, the hearing committee sustained the fraud

charges regarding Patient A, but not regarding Patient B. In

both cases, the hearing committee found that respondent’s

progress notes for Patients A and B on certain dates are

practically or almost identical and concluded that respondent

was guilty of the record-keeping charge alleged in the fourth

specification to the extent it relates to Patients A and B.

Although we agree with the hearing committee’s conclusions

finding respondent guilty of the fourth specification to the

extent it relates to Patients A and B, the mere fact that such

Als

records were not accurately maintained does not establish the

elements needed to prove fraud regarding the patients’ hospital

records. Adler v. Bureau of Professional Medical Conduct,

State of New York, Department of Health, __ A.D.2d wae

622 N.Y.S.2d 609 (3rd Dept. 1995); and Amarnick v. Sobol,

173 A.D.2D 914 (3rd Dept. 1991).

With respect to the issue of penalty, we disagree with

respondent’s characterization that the misconduct we have

determined is “minor”. An “admonition”, which is not a

penalty enumerated in Education Law §6511, is, in our

unanimous opinion, not warranted under these circumstances.

Also not warranted as a penalty in this matter, is a Censure

and Reprimand or a suspension of licensure.

In recommending a penalty to be imposed upon

respondent, we have considered the entire record in this

matter.

Respondent’s professional misconduct was committed

over four and one-half years before petitioner issued its

statement of charges. Other than the relevant January 1983

incidents, petitioner has not shown any misconduct by

respondent in his forty years of practice, including the eight

years after these hearings began.

The charges brought against respondent included various

allegations which have not been sustained by the hearing

committee, designee of the Commissioner of Health, or us.

Thus, respondent is not guilty of any permitting, aiding or

abetting an unlicensed person to assess a patient and write

progress notes (first specification); or any delegating of

professional responsibilities to a person whom respondent

knew or had reason to know was not qualified to perform

them (second specification). Respondent is also not guilty of

any fraud or record-keeping charges as to Patients C, D, E,

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and F. Regarding all of the patients referred to in the charges,

including the only patient who was the subject of the hearing

committee’s and designee’s conclusion of fraud, respondent

was found not guilty, at all levels of review, of the allegations

that respondent made and/or caused to be made entries in the

hospital records which falsely represented “the examination

performed and/or by whom the examinations were

performed”. Moreover, the penalty to be imposed herein may

not consider and is not based upon the allegations which we

do not sustain in subparagraph (i) of the third specification.

We unanimously disagree with the recommendation to fine

respondent $10,000 each on the third and fourth

specifications, for a total fine of $20,000. We do not find a

$20,000 fine based upon two consecutive $10,000 fines to be

appropriate under the circumstances. Inasmuch as fraud (the

third specification) is only established regarding Patient A, the

maximum $10,000 fine permitted by law for the fraud

committed by respondent is warranted in view of respondent’s

conduct of knowingly and with the intent to deceive the

medical benefits carrier submitting for reimbursement a bill

which makes false claims. On the other hand, no fraud was

sustained regarding Patient B and no improper motive by

respondent was found regarding the record-keeping charges

suStained in the fourth specification. In our opinion, an

additional maximum $10,000 fine is not warranted to be

imposed upon respondent based upon respondent’s guilt as to

the fourth specification. Accordingly. we recommend that,

under the circumstances, respondent be fined $10,000

concurrently on each of the third and fourth specifications, for

a total fine of $10,000.

We note that respondent’s attorney claimed, and

petitioner’s attorney did not dispute the claim, that respondent

recently received an award for his humanitarian work for the

homeless. We further note that no rationale was set forth by

A20

Se ee ali

either the hearing committee or the designee of the

Commissioner of Health for imposing a $20,000 fine or for

recommending consecutive fines. The designee did mention,

however, that given the respondent’s age, the time that has

passed, and the misconduct by respondent, a six month actual

suspension would “serve no purpose”.

We unanimously recommend the following to the Board of

Regents:

The hearing committee’s findings of fact be accepted and

the recommendation of the designee of the Commissioner

of Health as to the hearing committee’s findings of fact be

accepted;

. The following additional finding of fact, referrable to

Patient A, be accepted:

14A Respondent knowingly and with the intent to deceive

Patient A’s medical benefits carrier submitted such

false bill to the medical benefits carrier.

. The hearing committee’s conclusions and the conclusions

of the designee of the Commissioner of Health be

accepted, except the conclusion of each as to subparagraph

(i) of the third specification not be accepted;

. Respondent is guilty, by a preponderance of the evidence,

of fraud involving respondent knowingly, and with intent

to deceive, submitting a bill for services he purportedly

rendered to Patient A, which falsely claimed that he had

conducted ten follow-up hospital visits for Patient A

between January 21, 1983 and January 30, 1983 when

respondent, as he knew, did not visit Patient A on January

21, 1983 and January 22, 1983 (subparagraph (ii) of the

third specification); and unprofessional conduct pursuant

A21

to 8 N.Y.C.R.R. §29.2(a)(3) involving respondent failing

to maintain records which accurately reflect the evaluation

and treatment of Patients A and B in that the progress

notes for these patients are practically or almost identical

and do not accurately reflect the condition of those patients

on January 21, 22, 23 and 24 1983; and respondent is not

guilty of the remaining specifications and charges;

5. The recommendations of the hearing committee and

designee of the Commissioner of Health as to the measure

of discipline be modified; and

6. Respondent be fined $10,000 upon each specification of

the charges of which respondent has been found guilty,

said fine to be imposed concurrently and to total $10,000,

and to be paid by certified check to the order of the New

York State Education Department and mailed to the

Executive Director, Office of Professional Discipline, One

Park Avenue - Sixth Floor, New York, New York 10016

within four months after the effective date of the service of

the order to be issued in this matter.

EMLYN I. GRIFFITH

JANE M. BOLIN

JOHN T. MCKENNAN

/s/

{Emlyn I. Griffith] Chairperson

Dated: 2/19/96

APPENDIX F

Vote and Order No. 15551 of the University of the

State of New York Dated March 13, 1996, with

Report of Regents Review Committee Dated

February 19, 1996 (printed herein as Appendix E),

Cover Letter dated March 16, 1996, and a Copy of

Rule 24.7(b) of the Rules of the Board of Regents

THE UNIVERSITY OF THE STATE OF NEW YORK

IN THE MATTER

NATHANIEL SHAFER

(Physician)

DUPLICATE ORIGINAL VOTE AND ORDER NO. 15551

Upon the report of the Regents Review Committee, a copy

of which is made a part hereof, the record herein, under

Calendar No. 15551, and in accordance with the provisions of

Title VIII of the Education Law, it was

VOTED (March 13, 1996): That, in the matter of

NATHANIEL SHAFER, respondent, the recommendation of

the Regents Review Committee be accepted as follows:

1. The hearing committee’s findings of fact be accepted and

the recommendation of the designee of the Commissioner

of Health as to the hearing committee’s findings of fact be

accepted;

2. The following additional finding of fact, referrable to

Patient A, be accepted:

14A Respondent knowingly and with the intent to deceive

Patient A’s medical benefits carrier submitted such

false bill to the medical benefits carrier.

. The hearing committee’s conclusions and the conclusions

of the designee of the Commissioner of Health be

accepted, except the conclusion of each as to subparagraph

(i) of the third specification not be accepted;

. Respondent is guilty, by a preponderance of the evidence,

of fraud involving respondent knowingly, and with intent

to deceive, submitting a bill for services he purportedly

rendered to Patient A, which falsely claimed that he had

conducted ten follow-up hospital visits for Patient A

between January 21, 1983 and January 30, 1983 when

respondent, as he knew, did not visit Patient A on January

21, 1983 and January 22, 1983 (subparagraph (ii) of the

third specification); and unprofessional conduct pursuant

to 8 N.Y.C.R.R. §29.2(a)(3) involving respondent failing

to maintain records which accurately reflect the evaluation

and treatment of Patients A and B in that the progress

notes for these patients are practically or almost identical

and do not accurately reflect the condition of those patients

on January 21, 22, 23 and 24 1983; and respondent is not

guilty of the remaining specifications and charges;

. The recommendations of the hearing committee and

designee of the Commissioner of Health as to the measure

of discipline be modified; and

. Respondent be fined $10,000 upon each specification of

the charges of which respondent has been found guilty,

said fine to be imposed concurrently and to total $10,000,

and to be paid by certified check to the order of the New

York State Education Department and mailed to the

Executive Director, Office of Professional Discipline, One

A24

Park Avenue - Sixth Floor, New York, New York 10016

within four months after the effective date of the service of

the order to be issued in this matter;

and that the Acting Associate Commissioner for the

Professions be empowered to execute, for and on behalf of the

Board of Regents, all orders necessary to carry out the terms

of this vote;

and it is

ORDERED: That, pursuant to the above vote of the Board

of Regents, said vote and the provisions thereof are hereby

adopted and SO ORDERED, and it is further

ORDERED that this order shall take effect as of the date of

the personal service of this order upon the respondent or five

days after mailing by certified mail.

IN WITNESS WHEREOF, I,

Johanna Duncan-Poitier, Acting

Associate Commissioner for the

Professions, for and on behalf of

the State Education Department

and the Board of Regents, do

hereunto set my hand, at the City

_ of Albany, this 13th day of

March, 1996.

/s/

JOHANNA DUNCAN-POITIER

ACTING ASSOCIATE

COMMISSIONER FOR

THE PROFESSIONS

The State Education Department/The University of the State of

New York/Albany, N.Y. 12234

Office of Professional Discipline

One Park Avenue, New York, New York 10016-5802

March 15, 1996

Nathaniel Shafer, Physician

10 Easit 85th Street

New York, New York 10028

Re: License No. 076953

Dear Dr. Shafer:

Enclosed please find Order No. 15551. This Order goes

into efifect five (5) days after the date of this letter.

If the penalty imposed by the Order in your case is a

revocation or a surrender of your license, you must deliver

your license and registration to this Department within ten (10)

days aifter the date of this letter. Your penalty goes into effect

five (5) days after the date of this letter even if you fail to meet

the time requirement of delivering your license and registration

to this Department.

If the penalty imposed by the Order in your case is a

revocation or a surrender of your license, you may, pursuant

to Rule 24.7(b) of the Rules of the Board of Regents, a copy

of which is attached, apply for restoration of your license after

one year has elapsed from the effective date of the Order and

the penalty; but said application is not granted automatically.

Very truly yours,

DANIEL J. KELLEHER

Director of Investigations

By:

GUSTAVE MARTINE

A26

24.7 Review in other cases. The committee on the

professions shall review and submit it recommendation to the

Board of Regents for final determinations in the following

cases:

(b) petitions for restoration of professional license which

has been revoked or surrendered pursuant to Education Law,

section 6510 or 6510-a. At least one year shall have elapsed

from the date of service of the order of revocation, acceptance

of surrender, or denial of a prior application for restoration or

reinstatement by vote of the Board of Regents, for the

acceptance by the department of a petition to the Board of

Regents for restoration of a license or certificate, except that a

period of time during which the license was suspended during

the dependency of the discipline proceeding may reduce the

one-year waiting period. This section shall not apply to

restoration of licenses which have been temporarily

surrendered pursuant to Education Law, section 6510-b, or

Public Health Law, section 230(13).

(1) Materials submitted in response to the Committee on

the Professions’ recommendation to the Board of Regents

shall be filed no later that 15 days following the postmarked

date of the written notification of the decision or

recommendation of the Committee on the Professions.

(2) If an applicant has failed to remain current with

developments in the profession, and a substantial question is

presented as to the applicant’s current fitness to enter into

active practice of the profession, the Board of Regents may

require that the applicant take and obtain satisfactory grades on

a proficiency examination satisfactory to the department prior

to the issuance of a license or limited permit.

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APPENDIX G

Memorandum & Judgment of the Supreme Court of

the State of New York—Appellate Division,

Third Department, Dated October 16, 1997

Supreme Court—Appellate Division

Third Judicial Department

Decided and Entered: October 16, 1997 76677

In the Matter of NATHANIEL

SHAFER, MEMORANDUM

AND JUDGMENT

Petitioner,

BOARD OF REGENTS OF THE STATE

OF NEW YORK,

Respondent.

Calendar Date: September 3, 1997

Before: Cardona, P.J., Mikoll, Mercure, Casey and

Yesawich Jr., JJ.

Irving Anolik, New York City, for petitioner.

Dennis C. Vacco, Attorney-General (Lyssa M. Sampson of

counsel), New York City, for respondent.

Mercure, J.

Proceeding pursuant to CPLR article 78 (initiated in this

court pursuant to Public Health Law § 230-c[5]) to review a

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determination of respondent which fined petitioner for

professional misconduct in practicing medicine.

Petitioner is a physician licensed to practice medicine in

New York. In this CPLR article 78 proceeding, he challenges

respondent’s determination finding him guilty of (1) fraud in

submitting a bill falsely claiming that he conducted 10 follow-

up hospital visits with patient A between January 21, 1983

and January 30, 1983 when, in fact, respondent did not visit

patient A on January 21, 1983 and January 22, 1983, and (2)

unprofessional conduct pursuant to 8 NYCRR 29.2(a)(3) for

failing to maintain records which accurately reflected the

evaluation and treatment of patient A and patient B, in that

each patient’s daily progress notes for the period from January

21, 1983 through January 24, 1983 were nearly identical to

one another and did not accurately reflect the condition of the

patient, and imposing concurrent fines of $10,000. We are not

persuaded by petitioner’s assertions of error and, accordingly,

confirm the challenged disposition and dismiss the petition.

As a threshold matter, we disagree with petitioner’s

contention that the substitution of two members of the Hearing

Committee of the State Board for Professional Medical

Conduct during the pendency of the hearings on the charges

against him deprived respondent of jurisdiction. We do not

construe the provision of Public Health Law § 230(10)(f) that

“fa] hearing which has been initiated shall not be discontinued

because of the death or incapacity to serve of one member of

the hearing committee” (emphasis supplied) as requiring

discontinuation of the hearing in the event of the death or

incapacity of more than one member. To the contrary, in

Matter of Laverne v. Sobol (149 AD2d 758, 760, lv denied 74

NY2d 610) this court interpreted the very same language, then

contained in Education Law § 6510(3)(c), as permitting the

replacement of two members of a hearing panel (accord,

Matter of Briggs v Board of Regents of Univ. of State of

A29

N.Y., 188 AD2d 836, 837, lv denied 81 NY2d 708). The

more appropriate inquiry is whether the substitute committee

members “ha[d] read and considered evidence and transcripts

of the prior proceedings” (Public Health Law § 230[10][f])

and made an informed decision on all of the hearing evidence

(see, Matter of Taub v. Pirnie, 3 NY2d 188, 194-195; Matter

of Briggs v. Board of Regents of Univ. of State of N.Y.,

supra, at 837), requirements that the record shows to have

been satisfied in this case.

Next, we reject petitioner’s attack on the sufficiency of the

evidence to support the finding that petitioner did not visit

patient A on January 21, 1983 or January 22, 1983. Catherine

Graham, the head nurse on patient A’s floor at the time of his

hospitalization, testified that she first saw patient A on January

22, 1983, at which time she talked with hint and asked him

whether he was experiencing any headache, dizziness,

numbness or pain. According to Graham, patient A “appeared

kind of healthy for somebody in the hospital” and denied any

of those symptoms. Graham saw patient A the following day

and he continued to deny any problems. When she examined

his chart to determine petitioner’s plans for the patient, she

discovered that there had been no physician’s progress notes

from the time of patient A’s January 20, 1983 admission.

Later that day, however, Graham found that progress notes

had been entered for four different dates, but the notes were

unsigned and there was no patient name on the top of the chart

to indicate that it was the correct chart. Graham asked patient

A if his doctor had been in to see him that day, and patient A

responded that his doctor had not seen him since the day he

was admitted.

Yet later on January 23, 1983, an unfamiliar woman asked

Graham for patient A’s chart. When asked to identify herself

the woman stated that she was petitioner’s “assistant”, and

upon inquiry by Graham acknowledged that she had entered

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the unsigned progress notes in patient A’s chart. Graham then

challenged the woman’s authority, indicating that she should

not be looking at patient A’s records, and demanded the return

of the chart. Within five minutes, petitioner appeared at the

nurses’ station and explained that the woman was his assistant

and that she had seen and assessed patient A. Petitioner then

signed the progress notes, made additional written notations

and changed the date of the fourth entry from January 24,

1983 to January 23, 1983. Graham noted that the progress

notes for each of the four days were “very, very similar” and

the documentation of headaches, dizziness, drowsiness and

pain directly contradicted patient A’s denials of the very same

symptoms. Graham promptly notified her supervisor of the

foregoing occurrences, wrote a memo to the assistant director

of nursing and also advised the quality assurance department.

This court’s review is, of course, limited to the question of

whether respondent’s determination was arbitrary and

capricious, affected by an error of law or an abuse of

discretion; as such, “our inquiry is whether the administrative

determination has a rational basis supported by fact” (Matter of

Brown v. New York State Dept. of Health, __AD2d __,

___, 652 NYS2d 860, 862, lv denied 89 NY2d 814). In

making this inquiry, we will not decide credibility issues,

resolution of which are solely within the province of the

administrative fact finder (see, id., at 862). Clearly, Graham’s

testimony provided sufficient evidentiary support for the

finding that petitioner did not see patient A on January 21,

1983 and January 22, 1983, a fact that is unaffected by the

existence of contrary testimony by petitioner, Lydia Hochberg

(the individual! identified as petitioner’s assistant) and even by

patient A, all of whom the Hearing Committee specifically

determined were not credible witnesses (see, id.; Matter of

Adler v. Bureau of Professional Med. Conduct, State of New

York, Dept. of Health, 211 AD2d 990).

Petitioner’s remaining contentions are found to be either

lacking in merit or unsupported by the record.

Cardona, P.J., Mikoll, Casey and Yesawich Jr., JJ.,

concur.

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

/s/

Michael J. Novack

Clerk of the Court

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APPENDIX H

Decision and Order on Motion

of the Supreme Court of the State of New York

Appellate Division, Third Department,

Dated January 27, 1998

Supreme Court—Appellate Division

Third Judicial Department

Decided and Entered: January 27, 1998 Case #: 76677

In the Matter of NATHANIEL DECISION

SHAFER, AND ORDER

Petitioner, ON MOTION

BOARD OF REGENTS OF THE

STATE OF NEW YORK,

Respondent.

Motion for permission to appeal to the Court of Appeals.

Upon the papers filed in support of the motion, and the

papers filed in opposition thereto, it is

ORDERED that the motion is denied, without costs.

CARDONA, P.J., MIKOLL, MERCURE AND YESAWICH

JR., JJ., concur.

ENTER:

/s/

Michael J. Novack

Clerk of the Court

A33

APPENDIX I

Decision and Order on Motion of the Supreme

Court of the State of New York—Appellate

Division, Third Department, Dated May 28, 1998

Supreme Court—Appellate Division

Third Judicial Department

Decided and Entered: May 28, 1998 Case #: 76677

In the Matter of NATHANIEL DECISION

SHAFER, AND ORDER

Petitioner, ON MOTION

BOARD OF REGENTS OF THE

STATE OF NEW YORK,

Respondent.

Motion for rehearing and reargument.

Upon the papers filed in support of the motion and the

papers filed in opposition thereto, it is

ORDERED that the motion is denied, without costs.

CARDONA, P.J., MIKOLL, MERCURE AND YESAWICH

JR., JJ., concur.

ENTER:

/s/

Michael J. Novack

Clerk of the Court

APPENDIX J

New York State Education Law §6510(d)

Service of charges and of notice of hearing. A copy of the

charges and notice of any hearing pursuant to subdivision two

or three of this section shail be served on the licensee

personally by the department at least fifteen days before the

hearing. If personal service cannot be made after due diligence

and such fact is certified under oath, a copy of the charges and

the notice of hearing shall be served by certified mail, return

receipt requested to the licensee’s last known address by the

department at least twenty days before the hearing.

A35

APPENDIX K

New York State Public Health Law

§§230(10)(d) and (f)

(d) Service of charges and of notice of hearing. A copy of the

charges and the notice of the hearing shall be served on the

licensee personally by the board at least twenty days before the

hearing. If personal service cannot be made after due diligence

and such fact is certified under oath, a copy of the charges and

the notice of hearing shall be served by registered or certified

mail to the licensee’s last known address by the board at least

fifteen days before the hearing.

(f) Conduct of hearing. The evidence in support of the charges

shall be presented by an attorney. The licensee shall have the

rights required to be stated in the notice of hearing

(subparagraph (c) of this subdivision). The committee shall

not be bound by the rules of evidence, but its conclusion shall

be based on a preponderance of the evidence. A hearing which

has been initiated shall not be discontinued because of the

death or incapacity to serve of one member of the hearing

committee. In the event of a member’s death or incapacity to

serve on the committee, a member shall be appointed

immediately by the chairman of the board. The member shall

affirm in writing that he has read and considered evidence and

transcripts of the prior proceedings.

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