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Orens v. Novello11/14/2002
edical professionals who are licenced. The Appellate Division drew the line by excluding from the lay classification those medical professionals who fall within the disciplinary scheme of PHL § 230, notably physicians, residents, physician's assistants and specialist's assistants. While this interpretation is open to the majority's criticism that other medical professionals should be excluded as well, it is better, I submit, to draw the line there than where the majority has drawn it. By distinguishing between persons subject to the PHL § 230 disciplinary proceeding and all others, the panel composition would properly reflect the legislative intent as fully as possible. "Lay" panel members would not fear that their decisions could harm their colleagues, and the State would not need to find panelists who have no medical knowledge whatsoever. While not perfect, this is the best and wisest course available, and most faithfully vindicates the legislative intent.
For these reasons, I would affirm the order of the Appellate Division.
In each case: Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for consideration of issues raised in the proceeding but not determined by that court. Opinion by Judge Wesley. Judges Smith, Levine and Graffeo concur. Judge Rosenblatt dissents and votes to affirm in an opinion in which Chief Judge Kaye and Judge Ciparick concur.
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