Jeffreys v. Griffin , 749 N.Y.S.2d 505 ( 2002 )

OPINION OF THE COURT

Tom, J.

The issue before us is whether the factual determination of the Hearing Committee of the New York State Department of Health’s Board for Professional Medical Conduct (the Medical Board), which revoked defendant doctor’s license to practice medicine, collaterally estopped defendant from litigating the issue of liability with respect to plaintiffs civil cause of action for assault and battery. Under the particular circumstances of this case, I conclude that the defendant is entitled to a trial.

Defendant was a gastroenterologist who had treated plaintiff, his patient, for the stomach disorders gastritis and hyperacidity, and depression for several years. Between 1992 and 1994, plaintiff visited defendant at his medical office two or three times annually, during which time she complained that difficulties with her landlord, and her eventual eviction, caused her stress. On at least one occasion, in 1994, he recommended that she seek psychiatric help which, however, she declined to do. Plaintiff claimed that during a scheduled January 1995 endoscopy and upper colonoscopy, defendant orally sodomized her while she was under sedation. On the basis of her claim, defendant was indicted and convicted of sodomy in the first degree and falsifying business records. Defendant’s conviction eventually was overturned by this Court on April 2, 1998 upon the ground that prosecutorial misconduct had deprived the defendant of a fair trial (242 AD2d 70, appeal dismissed 93 NY2d 955). As a consequence of that reversal, trial evidence and conclusions based thereon derived from the first criminal trial, whether compelling or not, to which the dissent alludes, would not properly be a basis for our current analysis. The crucial point is that notwithstanding the charges made and evidence proffered on retrial, defendant was acquitted of all criminal charges.

After his conviction and prior to our reversal, defendant was subjected to a disciplinary proceeding before the Medical Board. As a consequence of that proceeding, defendant’s license to practice medicine was revoked by an order and determination dated October 24, 1996. The Hearing Committee, in addition to the sexual misconduct claims, had also considered charges relating to the preparation of false chart entries and other record keeping errors. Present plaintiff appeared as a witness at the hearing. Although all three members of the Hearing Committee found an adequate basis for revocation of defendant’s medical license, only two found against defendant, with one finding for defendant, on the claim of sexual impropriety. The factfinding, by the Committee, alluded to at least the possibility that plaintiff had psychiatric problems, and some pharmacological evidence was introduced that medication may have affected her ability to recall the immediate aftermath of the medical procedure.

Plaintiff commenced the present civil action for damages allegedly arising from assault and battery and intentional infliction of emotional distress. By order dated April 2, 1997, Supreme Court granted plaintiff summary judgment on the issue of liability, based on defendant’s conviction, as to the first cause of action sounding in assault and battery, but directed that trial be conducted on a related emotional distress claim insofar as the conviction was not dispositive regarding the requisite intent. The court noted that the parties had not yet been deposed. Hence, whether or not cross-examination was conducted at the criminal trial or even in the administrative hearing is not relevant to the question of whether there was adequate discovery in the present proceeding. There is a distinct difference in the latitude permitted for cross-examination of a witness and discovery. Cross-examination of a witness by a party is restricted only to the scope of testimony adduced during the direct examination of the witness. On the other hand, discovery is open-ended and provides for full disclosure of all evidence material and necessary in the prosecution or defense of an action. Therefore, cross-examination in a different proceeding should not be seen as filling the gap of discovery in the present proceeding, especially when the goals, procedures and burdens of proof differ for the respective proceedings.

After our reversal of the criminal judgment, the motion court, by decision and order dated December 10, 1998, vacated its prior order granting plaintiff summary judgment on her assault and battery claim. The motion court found that reversal of the criminal conviction basically eliminated applicability of collateral estoppel to bar litigation of the assault and battery claim in the civil action. The court, citing to David v Biondo (92 NY2d 318), was concerned that present plaintiff had not been the party in privity with the disciplinary board prosecutor, that the Committee on Professional Conduct was the actual party in interest, that the administrative remedy of revocation of the professional license was different from the monetary remedies sought by plaintiff in the civil action, and, insofar as the administrative proceeding and determination thus spoke to different issues, it could not be used as dispositive proof in the present civil action. Subsequently, defendant was retried on the criminal charge and was acquitted, as noted.

Plaintiff appeals from the order vacating the prior order which had granted her summary judgment, as to liability, on the first cause of action for assault and battery. On appeal, plaintiff argues that the factual determinations of the Medical Board to revoke defendant’s medical license should be given preclusive collateral estoppel effect with respect to this cause of action.

I agree with the Supreme Court. However, I also conclude that we should not analyze this as just a case involving the application of an administrative determination to a related civil action. Rather, this case turns on the unique needs of professional disciplinary bodies, a factor articulated by Judge Bellacosa in David (supra), and the essential distinction between such a forum and a judicial forum, notwithstanding the possible relatedness of some of the claims. Moreover, I see it as a matter of elemental fairness that defendant be given the opportunity to present his case to a jury, a point articulated in the Third Department’s decision in Stevenson v Goomar (148 AD2d 217, lv dismissed 74 NY2d 945). In that case, a plaintiff-patient sought to invoke collateral estoppel based on a determination by the New York State Board for Professional Medical Conduct that the defendant had engaged in misconduct, as a device for summary judgment in the civil action. The Third Department unequivocally held that “where * * * a party to a civil action seeks to invoke his right to a jury trial and he has not initiated or otherwise affirmatively sought to litigate the matter at the administrative level, fundamental fairness and the policy considerations referred to by the Court of Appeals in Staatsburg Water Co. v. Staatsburg Fire Dist. (72 NY2d 147, 153, supra) * * * require that preclusive effect not be given to the administrative determination. To conclude otherwise would result in the substantial erosion of rights far more fundamental and important than the concepts of finality and judicial economy served by the doctrine of collateral estoppel” (Stevenson, supra at 221).

The different natures of the proceedings also must be taken into account in discerning whether the defendant-physician has had a full and fair opportunity to litigate the claims asserted against him by a patient. Hence, in Stevenson (supra), the Third Department advanced the proposition that the New York State Board for Professional Medical Conduct, and judicial trials, are fundamentally different proceedings with differential impacts on the physician-defendant’s ability to defend, necessarily restricting the availability of collateral estoppel as between the proceedings. Although there are basic procedural safeguards in any administrative proceeding, “such as the right to present evidence and cross-examine witnesses * * •* there [is] no disclosure other than notice of the charges, and the rules of evidence [are] inapplicable” (id. at 220 [citation omitted]). The application of collateral estoppel in the present case would, in effect, foreclose defendant from conducting disclosure proceedings relevant to his defense of liability to plaintiff’s charges.

As the Court of Appeals in David (supra at 325) stated, “In sum * * * collateral estoppel is not a tool to benefit or punish particular litigants. The judicial responsibility, rather, is to see to it that substantive and procedural safeguards are applied evenhandedly for the protection of all persons who turn to the court system * * Applying this perspective, the Third Department noted that, “[o]f equal significance is the scope of review available in the two settings. On appeal from a * * * trial, the Appellate Division has the broad power to review the facts and grant the judgment which upon the evidence should have been granted-by the trial court * * *. The Appellate Division’s scope of review of an administrative agency’s quasi-judicial determination is, in contrast, very limited” (Stevenson, supra at 220 [citations omitted]). That Court also found significance in the fact that the medical defendant in that case, as in the present case, did not choose to litigate the matter at the administrative level; the defendant’s participation “was prompted solely by his need to protect and defend his license to practice medicine. A ruling in favor of plaintiff [on the collateral estoppel issue] would effectively make the administrative agency in a disciplinary proceeding the ultimate fact finder, with only limited judicial review, in any tort action arising out of the alleged misconduct, thereby depriving a defendant of a number of valuable rights traditionally associated with civil actions, including the constitutional right to a trial by jury. Plaintiffs use of collateral estoppel offensively to establish liability * * * would not comport with the underlying fundamental fairness aspects of the doctrine” (id. at 221). Again, we must bear in mind that “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 * * * and the societal interests in consistent and accurate results” (Staatsburg, supra at 153). As has been noted, although the goal of collateral estoppel is conservation of resources (Matter of Juan C. v Cortines, 89 NY2d 659, 667), the essential prerequisite is fairness, so that it “should not be rigidly or mechanically applied” (D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664).

The unusual procedural history of this case and the interplay of the different proceedings and results militate against the grant of estoppel. As noted, the Medical Board’s finding that defendant had engaged in sexual contact with his patient in violation of professional ethics was not unanimous but rather was based on a 2-1 split vote. A question is raised as to whether defendant’s conviction of the criminal charges may have affected the Board’s vote as it had clearly motivated the court’s original order awarding plaintiff summary judgment. The hearing before the Medical Board began on April 24, 1996, with both plaintiff and defendant testifying shortly thereafter. The administrative order was not issued until October 24, 1996. The criminal judgment by which defendant was convicted was rendered on or about September 6, 1996, months after the commencement of the hearing, but only shortly before the issuance of the administrative order. The Medical Board had notice of defendant’s conviction since it appears conspicuously in the Board’s findings of fact. This leads one to wonder whether a disciplinary matter that had lingered unaccountably for months and then suddenly resulted in the license revocation may have been prompted by defendant’s criminal conviction. As the dissent points out, those two voting Medical Board members stated that their conclusions were not affected by the recent conviction. But that, of course, begs the question: what else were they going to say? It bears repeating that while not dispositive, defendant was, in fact, acquitted upon retrial of his criminal charges.

The dissent addresses some of the procedural aspects of physician disciplinary proceedings and concludes that the statutory requirements confer adequate fairness on those determinations. I do not dispute that such a hearing is accorded procedural due process, but I remain unconvinced that those procedural protections are the functional equivalent of the protections to which a defendant is entitled in a civil trial, also taking into account the limited appellate review of an administrative determination. Those statutory references also do not alleviate my concern that the administrative determination was made in the aftermath of a criminal conviction which was later overturned.

A necessary prerequisite to issue preclusion is that the identical issue has already been fully litigated in the prior action and must be dispositive of the present action; the party seeking the benefit of collateral estoppel bears the burden of demonstrating such an identity of issues (Juan C., supra at 667, quoting Kaufman v Eli Lilly & Co., 65 NY2d 449, 456).

In the present case, the Hearing Committee’s order made six findings in support of revocation. In order to invoke collateral estoppel on the basis of these findings, the proponent would have to demonstrate that the issues resolved in that proceeding were identical to the issues to be adjudicated in the civil proceeding so as to preclude relitigation of each particular issue. The administrative findings all were grounded upon Education Law § 6530 as the statutory predicate for revocation. Section 6530 sets forth a listing of some 47 definitions of professional misconduct. Of the six formal findings, three clearly were for record keeping violations which, alone, would have been a basis for revocation, and which, notably, are not germane to the present civil action. Of the remaining three findings, the fifth, citing to Education Law § 6530 (9) (a), was expressly predicated on defendant having been convicted of a crime under New York law — sodomy. This finding necessarily must be vacated in view of the reversal and defendant’s subsequent acquittal of the sodomy charge. Obviously, then, that issue is unavailing for purposes of collateral estoppel. This leaves two remaining findings (the first and second findings) by the Medical Board. The first finding, that defendant engaged in professional misconduct by evincing moral unfitness in his practice of medicine, was based on the claim of improper sexual contacts, and also on falsification of medical records. It thus appears that the finding of professional misconduct was predicated on two distinct wrongdoings and not solely on “assault and battery,” in contrast with the present litigation.

This leaves only the second finding, referencing Education Law § 6530 (31), that defendant had harassed, abused or intimidated plaintiff. The issue before the Medical Board concerned the inappropriateness of the alleged contact and the implicit violation of a relationship of trust rather than whether civil claims, requiring specific acts and mental states bearing on the element of intent necessary for the civil causes of action, were satisfied.

It bears repeating that the Hearing Committee, in relevant part, found only that defendant “engaged in professional misconduct by reason of engaging in conduct in the practice of medicine that evidences moral unfitness,” referencing the sexual contact set forth in the hearing record. That is not a finding that defendant, by a preponderance of the evidence, acted with the requisite intent necessary for the torts, presently alleged. It also bears repeating that on this, the Hearing Committee issued a split vote.

The dissent properly notes the distinction between the offensive and defensive use of collateral estoppel, and correctly observes that David involved the latter, but the distinction does not impede the force of the basic equitable principles articulated in that case or their applicability to the present circumstances. Although I would not gainsay that issue preclusion might be appropriate as between administrative findings and civil actions under appropriate circumstances, this is not such a case. Rather, an equitable doctrine is being used to reach inequitable and, potentially, juridically inconsistent results. This allows for an unsettling precedent, in which purportedly aggrieved patients may use disciplinary proceedings, lacking in the full panoply of discovery and procedural safeguards codified in our civil procedure law, to trump the professionally licensed defendant’s recourse to a defense against civil claims in a civil trial. Especially in view of the peculiar procedural history of this case, the present defendant should have his day in court.

Accordingly, the order of the Supreme Court, Bronx County (Barry Salman, J.), entered December 14, 1998, which, insofar as appealed from as limited by the briefs, granted defendant’s motion to vacate the court’s prior order (same court and Justice), entered on or about April 2, 1997, granting partial summary judgment to plaintiff as to liability on her first cause of action for assault and battery, should be affirmed, without costs.