In the Matter of Francis G.
D'Ambrosio,
Appellant,
v.
Department of Health of the
State of New York, et al.,
Respondents.
2005 NY Int. 5
Appellant-doctor challenges the discipline imposed on
him by the Board For Professional Medical Conduct, based on his
voluntary surrender of his license in Nevada, after malpractice
charges there. We conclude that the Appellate Division correctly
upheld the administrative determination.
In 1987, appellant obtained his medical license in New York. He has not been registered as a physician in this State since December 1992, and has never practiced here. From 1993 until 2000, he was an orthopedic surgeon in Las Vegas, Nevada. In 2000, he relocated his practice to California and allowed his Nevada license to lapse. Appellant alleges that at the time he relocated to California, he had no intention of returning to Nevada.
On March 22, 2002, the Nevada Investigative Committee of the Board of Medical Examiners issued a ten-count complaint alleging professional malpractice in appellant's treatment of seven patients between 1995 and 2000. Appellant was charged both with "continual failure to exercise the skill or diligence or use the methods ordinarily exercised under the same circumstances by physicians in good standing practicing in the same specialty or field" (Nev Rev Stat § 630.306 [7]), and with malpractice as "evidenced by claims settled against a practitioner" (Nev Rev Stat § 630.301 [4]). Nevada law required that a complaint contain a "short and plain statement of the matters asserted"; if requested, "a more definite and detailed statement must be furnished" (Nev Rev Stat § 233B.121 [2] [d]).
The complaint identified appellant's seven former
patients as "A" through "G." The complaint alleged that
following surgery, patient A suffered complications including
For patients C, D and G, the complaint identified the
dates of surgery and pre-operative diagnosis. For patient F, the
In addition to the opportunity to request a more definite and detailed statement, Nevada law provided that the "[o]pportunity must be afforded all parties to respond and present evidence and argument on all issues involved" (Nev Stat Rev § 233B.121 [4]). Appellant made no request for more details and no response to the allegations of the complaint. Instead, on April 17, 2002--under oath in his attorney's office in California--appellant signed a Voluntary Surrender Of License To Practice Medicine In The State Of Nevada While Under Investigation ( see Nev Admin Code § 630.240). In the document, he acknowledged that he was aware that he was under investigation for violations of the Medical Practice Act, that he "voluntarily, absolutely, and irrevocably surrender[ed] his license to practice medicine in the state of Nevada," and that his surrender was subject to section 630.240 of the Nevada Administrative Code. Section 630.240 states that "if the Board accepts the surrender of the license, the surrender is absolute and irrevocable and the Board will notify any agency or person of the surrender and the conditions under which the surrender occurred, as the Board considers advisable."
On June 1, 2002, the Nevada State Board of Medical
Examiners "having considered the matter . . . and good cause
appearing," issued an Order stating "[t]hat the irrevocable
Shortly thereafter, on September 27, 2002, the New York State Board for Professional Medical Conduct commenced a "referral proceeding" against appellant, alleging that he "violated New York Education Law § 6530 (9) (d) by having surrendered his license . . . after a disciplinary action was instituted by a duly authorized professional disciplinary agency of another state, where the conduct resulting in the surrender . . . would if committed in New York state, constitute professional misconduct under the laws of New York state." The Board further claimed that appellant's conduct resulting in the surrender of his license would constitute misconduct under the laws of New York pursuant to New York Education Law § 6530 3) (negligence on more than one occasion); § 6530 (4) (gross negligence); § 6530 (5) (incompetence on more than one occasion); and/or § 6530 (6) (gross incompetence). Public Health Law § 230 (10) (p) required appellant to file a written answer to the charges, and provided that "any charge and allegation not so answered shall be deemed admitted." No written answer is contained in the record.
On December 19, 2002, the Board withdrew the charges of
gross negligence and gross incompetence, and a three-member
Hearing Committee proceeded with a conference and expedited
At the hearing that followed immediately, the Board
submitted the notice of referral proceeding, statement of
charges, the Nevada complaint, appellant's voluntary surrender
and the Nevada order accepting the surrender. Testifying in his
own defense, appellant--in one-word denials--denied knowledge of
the substance of the claims made against him, denied that he
committed malpractice or did anything negligent in the treatment
of the patients listed in the complaint, denied that he could
explain how the charges against him were incorrect, denied that
the Nevada committee presented facts about his alleged
wrongdoing, and denied that anyone explained the charges to him.
Asked why he chose to surrender his Nevada license, he explained
that, after speaking to his attorney, "rather [than] go to the
expense of having to fight and stand before counsels and try to
get my point of view across, that the option they gave me was to
surrender my license to make everything go away. I wanted to
The Hearing Committee dismissed the professional
misconduct charges on the ground that the evidence was
insufficient for a finding that, had the alleged conduct occurred
in New York, it would constitute any type of professional
misconduct here. The five-member Administrative Review Board
overturned the Hearing Committee, concluding that appellant
surrendered his license to avoid litigation of the charges, that
the surrender raised the inference that the charges were
meritorious, and that the conduct for which appellant was
disciplined would have amounted to professional negligence and
incompetence in New York. For a penalty, the Board determined
that, should appellant return to New York to practice, "five
years on probation, with a monitor and pre-operative review, will
allow the State to oversee [appellant's] practice to assure that
[he] has corrected the deficiencies in his practice that resulted
in his license surrender in Nevada." On article 78 review, the
Appellate Division confirmed the administrative determination.
We now affirm
Appellant contends that the finding of professional misconduct based on his voluntary surrender in Nevada violated the New York statute as well as due process of law. We begin with the statute.
In 1980, the Legislature enacted Education Law § 6509 (5) (b) to define professional misconduct as "having been found guilty . . . by a duly authorized professional disciplinary agency of another state" of conduct that, if undertaken in New York, would amount to professional misconduct under New York law (L 1980, ch 866, § 4). Physicians who resolved disciplinary charges in other states without actual findings of guilt--whether by surrendering their licenses there, or by consent to sanctions--were thus able to avoid discipline in New York, unless New York could overcome the obvious difficulty of securing records and witnesses and prosecute charges based on out-of-state events.
In 1985, the Legislature added Education Law § 6509 5)
(d) to close that gap by permitting New York's licensing
authorities to discipline a professional if, "after a
disciplinary action was instituted by a duly authorized
professional disciplinary agency of another state" the
professional surrendered his or her license or otherwise
consented to discipline before any finding of guilt (L 1985, ch
294, § 11). The statute imposed two requirements before a
We reject appellant's interpretation of Education Law
§ 6530 (9) (d) as requiring proof of guilt of the out-of-state
misconduct charges. Plainly, the Legislature enacted Education
Law § 6509 (5) (d), from which Education Law § 6530 (9) (d) is
derived, in order to close a loophole--in other words, to address
precisely the situation before us by subjecting a physician to
disciplinary review if (as found by the Administrative Review
Board in the case before us) "the physician 'voluntarily'
surrendered his or her license in another state to avoid a
finding of medical misconduct" (Mem of State Exec Dept, 1985
Appellant misconstrues Halyalkar v Board of Regents (72 2 261 [1988]) when he argues that New York cannot give preclusive effect to an out-of-state disciplinary order accepting a voluntary surrender of license that has not been actually litigated. The issue presented in Halyalkar was whether the New York Board of Regents properly invoked the doctrine of collateral estoppel, using settlement of misconduct charges in New Jersey offensively to prove the merits of those charges in a later New York proceeding. We concluded that there was no identity of issue essential to collateral estoppel because misconduct had not been litigated in New Jersey--petitioner had entered a plea. Notably, however, Halyalkar was decided on collateral estoppel grounds, did not involve a referral proceeding pursuant to Education Law § 6530 (9) (d), and pre- dated the statutory amendments eliminating a requirement that guilt be proved.
We further reject appellant's contention that his due
process rights were violated by the failure of the Nevada
complaint to put him on notice of what he had done wrong, and by
Appellant had both notice and an opportunity to be heard in Nevada. As we observed in Block v Ambach, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense" (73 2 323, 333 [1989] [internal citations omitted]). While a complaint totally devoid of detail would not suffice, the Nevada complaint, though minimal, sufficiently advised appellant of the charges against him, particularly when coupled with the malpractice action screening and settlement procedures and the statute requiring that a more definite and detailed statement be furnished upon request. Appellant deliberately chose not to avail himself of the opportunity to obtain greater specificity of the charges had he wanted it. Additionally, under Nevada law appellant was afforded the right to a hearing, with full procedural safeguards--all of which he relinquished by his conscious choice to surrender his license, with notice that that act alone might have consequences elsewhere ( see Nev Admin Code § 630.240).
Nor was appellant denied due process in New York. The
New York statute put appellant on notice that he would be subject
to discipline here if he voluntarily surrendered an out-of-state
Apart from having received sufficient notice of the
charges, appellant had an opportunity at the hearing to offer
evidence and explain the nature of his alleged conduct. As in
Accordingly, the judgment of the Appellate Division should be affirmed, with costs.
1 Nevada law at the time required that such actions be filed with a screening panel before proceeding to court and that the claimant provide a "clear and concise statement of the facts of the case, showing the persons involved and the dates and circumstances, so far as they are known, of the alleged medical . . . malpractice" (Nev Rev Stat § 41A.039 [2], repealed by Act of 2002, Sp Sess ch 3, § 69, effective Oct. 1, 2002). The Panel was required to consider all documentary evidence, including the complaint, answer and response, health care records, dental records and records of a hospital or office and the testimony of any expert witnesses and determine from that evidence whether there was a reasonable probability of medical malpractice ( id. at 41A.049 [2]). If a reasonable probability existed, the patient, doctor and the doctor's insurer had to attend a mandatory settlement conference before a judge to determine the "reasonable value of the claim for purposes of settlement" ( id. at 41A.059 [1], [5]).