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Orens v. Novello11/14/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Section 230 of the Public Health Law establishes a State Board for Professional Medical Conduct ("Board"). The Board through its committees on professional conduct hears charges of misconduct against physicians, medical residents, physician's assistants and specialist's assistants (see Public Health Law § 230 ). Each committee is made up of three members of the Board and must include two physicians and one lay member (*2)(see Public Health Law § 230 ). In each of these misconduct cases, the committee was comprised of two physicians and a physician's assistant. Respondents argue that because a physician's assistant is not a "lay member" within the meaning of the statute, each hearing committee was improperly constituted. We disagree and remit the remaining issues raised in each case to the Appellate Division.
Matter of Orens:
Perry Orens, M.D., was charged with 34 specifications of professional misconduct arising from his care and treatment of ten patients. At a pre-hearing conference, Orens objected to the composition of the three-member panel. He argued that the panel did not include a "lay member" as required by Public Health Law § 230(6). The Administrative Law Judge overruled the objection. Following the hearing, the professional conduct committee concluded that the Department of Health sustained its burden of proof and revoked Orens' license to practice medicine.
Following an administrative review of the committee's findings, Orens then commenced this CPLR article 78 proceeding in the Appellate Division seeking to annul the determination (see Public Health Law § 230-c ). The court unanimously annulled the determination, granted the petition and remitted the matter to the Board for a new hearing (see Matter of Orens v Novello, 284 AD2d 26 ). The court rejected the State's claim that "lay-member" includes anyone who is not a licensed physician (id. at 28). It concluded that the Legislature intended to exclude from that definition any person subject to the disciplinary measures of section 230, including physician's assistants (see id. at 29-30).
Matter of Mayer:
(*3) Dr. Paul S. Mayer, a specialist in obstetrics and gynecology, was charged with numerous specifications of professional misconduct. At the outset of the evidentiary hearing before the professional conduct committee, Mayer objected to its three-member composition claiming that the "lay member" could not be a physician's assistant. The ALJ overruled the objection and ordered the hearing to proceed. At the conclusion of the hearing, the committee sustained nine specifications of misconduct and revoked Mayer's license.
Mayer then commenced this CPLR article 78 proceeding to annul the determination. The court unanimously annulled the determination, granted the petition and remitted the matter to the Board for a new determination. The court held that
n our view, there is merit to the contention that the Hearing Committee was improperly composed of three medical practitioners whose professions are subject to the Public Health Law § 230 disciplinary process, therefore violating the requirement of Public Health Law § 230 (6) that a Hearing Committee "consist of two physicians and one lay member," and requiring that we annul the determination and remit for a new hearing (Matter of Mayer v Novello, 288 AD2d 780, 781 [citing Orens, 284 AD2d at 28]).
Analysis:
The question before us is one of statutory interpretation. Our analysis begins with the language of the statute. If the terms are clear and unambiguous, "`
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