1 No. 120
Christine A. Jeffreys,
Appellant, v. Dr. Patrick H. Griffin,
Respondent.
2003 NY Int. 125
October 30, 2003
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Barry S. Gedan, for appellant. Michael C. Marcus, for respondent. Medical Society of the State of New York, amicus curiæ.
READ, J.:
This appeal calls upon us to decide whether a finding
of sexual misconduct by a Hearing Committee of the New York State
Department of Health's Board for Professional Medical Conduct
precludes defendant-physician from contesting liability for
assault and battery in plaintiff-patient's civil action to
recover money damages. In light of the circumstances of this
case and the flexible nature of the doctrine of collateral
estoppel, we conclude that it does not. I.
In December 1991, plaintiff Christine A. Jeffreys began
treatment with defendant Dr. Patrick H. Griffin, a
gastroenterologist, for stomach problems and depression, for
which defendant prescribed anti-depressants. Plaintiff had been
evicted from her apartment in July 1991, and she blamed her
ailments on stress caused by her landlord's supposedly oppressive
conduct.
On January 13, 1995, plaintiff underwent a colonoscopy
and an upper endoscopy, both of which require sedation, at
defendant's office. She subsequently reported to the police that
defendant had orally sodomized her at some point during the upper
endoscopy. Law enforcement authorities supplied plaintiff with a
tape recorder, which she secretly wore when she visited
defendant's office on April 27, 1995, ostensibly for medical
follow-up. The tape recording captured defendant repeatedly
denying the sodomy, but stating that he had kissed plaintiff
immediately before or after performing the upper endoscopy.[1]
Defendant later prepared an exculpatory chart entry documenting
plaintiff's April 27th office visit. Civil, criminal and administrative proceedings, all
stemming from plaintiff's allegations of oral sodomy, quickly
ensued. First, in October 1995, plaintiff commenced this civil
action against defendant, alleging assault and battery and
intentional infliction of emotional distress. Then on January
19, 1996, defendant was indicted on charges of first-degree
sodomy, sexual abuse in the first degree and falsifying business
records in the first degree. Finally, in March 1996, the New
York State Department of Health's Board for Professional Medical
Conduct brought disciplinary charges against defendant.
Administrative hearings were held before a Hearing Committee of
the Board on April 24, May 2 and 29, June 10, 13 and 27 and July
17 and 18, 1996. Defendant's criminal trial also took place in the
spring of 1996, and, on June 18, 1996, he was convicted by a jury
of the crimes of first-degree sodomy and falsifying business
records in the first degree. On September 6, 1996, defendant was
sentenced to 3. to 10 years in prison. On October 24, 1996,
with knowledge of defendant's recent criminal conviction and
sentencing, the Hearing Committee issued its determination and
order revoking defendant's license to practice medicine. Two of
the three Committee members found, by a preponderance of the
evidence ( seePublic Health Law § 230[10][f]), that defendant had
performed oral sex on plaintiff without her consent, and
therefore had engaged in professional misconduct. All three
resolved that defendant had engaged in professional misconduct by
entering a false business record relating to plaintiff's office
visit on April 27, 1995. In April 1997, Supreme Court granted plaintiff's motion
for summary judgment on liability in her cause of action for
assault and battery, based solely on defendant's criminal
conviction. After the Appellate Division, with two Justices
dissenting, reversed his criminal conviction in April 1998 (242
2 70 [1st Dept 1998], appeal dismissed , 93 NY2d 955 1999]),
defendant moved to vacate this order. In December 1998, Supreme
Court granted defendant's motion and vacated its prior order.
Relying on our decision in David v Biondo (, 92 NY2d 318 1998]),
Supreme Court held that the Committee's adverse factual
determination did not preclude defendant from contesting his
liability for assault and battery in plaintiff's civil action. Defendant was subsequently retried and, in April 2000,
a jury acquitted him of all charges. Then in October 2002, the
Appellate Division, with one Justice dissenting, affirmed Supreme
Court's order denying plaintiff's application to give the
Committee's determination preclusive effect in her civil action
(301 2 232 [1st Dept 2002]). In explaining its decision, the
majority adverted to "[t]he crucial point . . . that
notwithstanding the charges made and evidence proffered on
retrial, defendant was acquitted of all criminal charges" ( id. at
233). The Appellate Division subsequently certified the
following question to us: "Was the order [of the Appellate
Division], which affirmed the order of the Supreme Court,
properly made?"
II. Collateral estoppel, or issue preclusion, gives
conclusive effect to an administrative agency's quasi-judicial
determination when two basic conditions are met: (1) the issue
sought to be precluded is identical to a material issue
necessarily decided by the administrative agency in a prior
proceeding; and (2) there was a full and fair opportunity to
contest this issue in the administrative tribunal ( see Ryan v New
York Tel. Co., , 62 NY2d 494 [1984]; see also Schwartz v Public
Adm'r of County of Bronx, , 24 NY2d 65 [1969]). The proponent of
collateral estoppel must show identity of the issue, while the
opponent must demonstrate the absence of a full and fair
opportunity to litigate. In three decisions handed down on the
same day in 1988, we explored the boundaries of these basic
conditions in three different kinds of administrative
proceedings. First, in Staatsburg Water Co. v Staatsburg Fire Dist.
(72 2 147 [1988]), plaintiff water company sought to use a
determination by the Public Service Commission (PSC) to preclude
the defendant from litigating its liability in the plaintiff's
suit seeking back payment for services rendered. At the
plaintiff's request, the PSC issued a decision which found, in
essence, that plaintiff water company was entitled to payment
from the defendant. We found collateral estoppel inapplicable
because plaintiff water company initiated the PSC decision, the
defendant was not a party to the proceeding and the PSC had no
power to compel the defendant to take any action as a result of
its determination. In light of this absence of immediate
consequences for the defendant, we concluded that the PSC's
decision was an advisory opinion, which the defendant lacked a
full and fair opportunity to contest. Importantly, we also noted in Staatsburg that
collateral estoppel is a flexible doctrine, such that
"[i]n the end, the fundamental inquiry is
whether relitigation should be permitted in a
particular case in light of what are often
competing policy considerations, including
fairness to the parties, conservation of the
resources of the court and the litigants, and
the societal interests in consistent and
accurate results" ( id. at 153) (citations
omitted). Second, in Allied Chem. v Niagara Mohawk Power Corp.
(72 2 271 [1988]), we concluded that the party against whom
collateral estoppel was sought had indeed enjoyed a full and fair
opportunity to contest the issue before the PSC. There, Niagara
Mohawk had filed a petition with the PSC and Allied Chemical had
filed a counterpetition and complaint. The PSC ruled in Niagara
Mohawk's favor, and Allied Chemical chose to file the action in
Supreme Court rather than contest the PSC's determination in a
CPLR article 78 proceeding. When Niagara Mohawk moved to dismiss
the action based on the PSC's prior determination and the PSC,
added as a party at the trial court's behest, moved for summary
judgment on the same grounds, Supreme Court granted the motions. We affirmed, holding that collateral estoppel properly
barred Allied Chemical's action. In so doing, we again stressed
the need to assess whether issue preclusion is fair in view of
the realities in the particular administrative setting:
"While issue preclusion may arise from the
determinations of administrative agencies, in
that context the doctrine is applied more
flexibly, and additional factors must be
considered by the court. These additional
requirements are often summed up in the
beguilingly simple prerequisite that the
administrative decision be quasi-judicial in
character" ( id. at 276) (citations omitted). We noted that among the factors bearing on whether an
administrative decision is "quasi-judicial" are "whether the
procedures used in the administrative proceeding . . . were
sufficient both quantitatively and qualitatively, so as to permit
confidence that the facts asserted were adequately tested, and
that the issue was fully aired" ( id. at 276-77). Third, Matter of Halyalkar v Board of Regents of State
of N.Y. (72 2 261 [1988]) called upon us to decide whether the
State Board of Regents, which prior to 1991 shared responsibility
for physician discipline with the Department of Health, might
find a physician guilty of willfully and knowingly filing false
medical reports solely on the basis of a consent order negotiated
by the physician with the New Jersey Board of Medical Examiners.
We recognized that in light of the consent order, the issues were
never litigated in New Jersey, and without litigation there could
be no identity of issues. Further, whether to apply collateral
estoppel in a particular case depends upon "general notions of
fairness involving a practical inquiry into the realities of the
litigation" ( id. at 268; see also Gilberg v Barbieri, , 53 NY2d 285, 291-92 [1981]; People v Roselle, , 84 NY2d 350, 357 1994]
["[C]ollateral estoppel, a flexible doctrine, should not be
mechanically applied just because some of its formal
prerequisites, like identity of parties, identity of issues, a
final and valid prior judgment and a full and fair opportunity to
litigate the prior determination, may be present"]). III. Applying the foregoing principles and precedents to
these facts, we look first at whether plaintiff established the
identity of a material issue necessarily decided by the
administrative tribunal, and conclude that she did. She limited
the relevant cause of action to assault and battery and did not,
for example, also include a malpractice claim. The Hearing
Committee specifically found that plaintiff awakened at some
point after defendant had commenced the upper endoscopy and
discovered him "administering oral sex" to her without her
consent; therefore, identity of issue exists.[2]Next, the Board for Professional Medical Conduct's
disciplinary hearings are among the most procedurally rigorous
administrative proceedings in New York State ( seePublic Health Law § 230). These proceedings are "quasi-judicial" in the
general sense required for application of the doctrine of
collateral estoppel. This is so notwithstanding the differences
between these proceedings and a civil trial, which were pointed
out by the Appellate Division: the absence of juries, the
absence of CPLR article 31 disclosure and the inapplicability of
the rules of evidence followed in a civil trial. Moreover, as
the dissenting Justice at the Appellate Division noted, a
physician's very livelihood -- the continued ability to practice
medicine -- is at risk of loss in the Board for Professional
Medical Conduct's disciplinary proceedings. These stakes provide
considerable incentive for the physician to litigate issues fully
in this forum. Further, David v Biondo does not foreclose a plaintiff
from invoking collateral estoppel when a Hearing Committee
disciplines a physician. Rather, a physician cannot interpose an
exculpatory finding as a shield in a subsequent civil action.
This is so because the plaintiff in the civil action is not a
"legally recognized party in interest" in the Hearing Committee's
proceeding, and "enjoy[s] no legal or practical opportunity to
litigate . . . civil law grievances within the framework of [the
Hearing Committee's] proceeding" (92 2 at 321). In effect, a
plaintiff cannot be said to have lost when a physician achieves a
favorable result in the Hearing Committee's proceeding because
the plaintiff never had a day in court. Contrariwise, when the
physician loses in the Hearing Committee, assuming a full and
fair opportunity to contest the identical issue, the physician
has, indeed, had a day in court. Moreover, in David we were
troubled by an additional factor not present when the physician
loses before the Hearing Committee: the prospect that patients
might refrain from reporting professional misconduct to the
Office of Professional Discipline if, by so doing, they risked
foreclosure of their civil actions for money damages. Nonetheless, we conclude that the Appellate Division
properly declined to apply the doctrine of collateral estoppel
here in light of "the realities of the litigation" of this case,
regardless of whether the formal prerequisites for collateral
estoppel were present. When the Hearing Committee's members
voted to revoke defendant's license, they were considering
whether a recently convicted and sentenced sex offender should be
allowed to practice medicine. Defendant's conviction was
subsequently reversed and, importantly, on retrial he was
acquitted of all the criminal charges stemming from plaintiff's
allegations. There is no way to disentangle the Hearing
Committee members' non-unanimous determination of sexual
misconduct from their contemporaneous awareness of the outcome of
defendant's first criminal trial.[3]
Because defendant was later
acquitted after retrial, he should not be precluded from
contesting liability for assault and battery in plaintiff's civil
action. Accordingly, the order of the Appellate Division should
be affirmed, with costs; and the certified question answered in
the affirmative.
Footnotes
1 According to his attorney, defendant later denied kissing plaintiff,
testifying that he had made this story up in his panic to persuade her that,
because of the effects of the drugs administered during the colonoscopy and
upper endoscopy, her memory was seriously faulty.
2 The Pattern Jury Instructions provide that "[a] person who
intentionally touches another person, without that person's consent, and
causes an offensive bodily contact commits a battery and is liable for all
damages resulting from (his,her) act. Intent involves the state of mind with
which an act is done. The intent required for battery is intent to cause a
bodily contact that a reasonable person would find offensive. An offensive
bodily contact is one that is done for the purpose of harming another or one
that offends a reasonable sense of personal dignity, or one that is otherwise
wrongful" (PJI 2d 3:3 [2003]). Assault involves putting a person in fear of a
battery ( see PJI 2d 3:2 [2003]).
3 Plaintiff objects that the two majority members of the Hearing
Committee expressly noted that "the outcome of [defendant's] criminal appeal
would have no effect on the revocation of [defendant's] license" because the
findings on those specifications unrelated to his criminal conviction were
sufficient to warrant license revocation. Plaintiff also protests that
defendant did not attack the validity of the Hearing Committee's factual
determination in Supreme Court on the basis that his criminal conviction may
have tainted the Committee's deliberations. The key consideration here,
however, is not the outcome of defendant's criminal appeal alone, but his
subsequent acquittal after retrial. The acquittal, which occurred after
Supreme Court rendered its decision, was specifically cited by the Appellate
Division majority as a basis for its decision, as were the Hearing Committee's
split vote and the handing down of its decision shortly after defendant's
sentencing.