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October 28, 2013

Proceeding with an administrative hearing in the absence of the individual and his or her attorney


Proceeding with an administrative hearing in the absence of the individual and his or her attorney
2013 NY Slip Op 06900, Appellate Division, Third Department

One of the issues considered by the Appellate Division in this appeal challenging the New York State’s Administrative Review Board for Professional Medical Conduct revocation of the physician's license to practice medicine in New York State was the allegation that the physician was denied administrative due process.

With respect to the physician’s due process claims, the Appellate Division found that:

1. The physician was provided with fair notice of the charges and hearing dates, an opportunity to present a defense and a fair hearing that comported with due process.

2. The Administrative Law Judge (ALJ) did not abuse her discretion in denying the physician's untimely, last minute request for an adjournment of the mutually agreed-upon second day of the hearing.

According to the ruling, the parties had mutually agreed upon a number of additional hearing dates in the course of the first day of the hearing.

The day before that second hearing date, April 12, the physician's attorney belatedly an email to the ALJ and the BPMC’s counsel stating that the physician was "out of the country," she was "[un]able to contact him" and requesting an adjournment until the next hearing date. In response to the BPMC's counsel immediate objection to the request, the physician's attorney sent an email that she would "not attend the hearing."

The following day, neither physician nor his attorney appeared as scheduled for the second day of the hearing. The ALJ denied the requested adjournment, noting that, just that morning, she had received the belated email adjournment request and that physician’s attorney had offered no valid reason for her failure to appear on the physician’s behalf.

The ALJ then proceeded with the second day of hearing, notwithstanding the absence of the physician and his attorney, during which testimony was heard and BPMC rested.

The Appellate Division said that it found no error or abuse of discretion, particularly given that no good cause was offered by the physician’s attorney for their absence, noting that the request for a postponement was untimely in that “the notice of hearing had clearly advised [the physician and his attorney] that any requests for adjournments, among other requirements, had to be made ‘at least five days prior to the scheduled hearing date,’ and they were informed at the outset of the first hearing that it could continue in their absence.”

The Appellate Division also noted that the physician contended that a week prior to the second hearing date he left the county due to an unspecified death in his family, but offered no explanation why he did not, at that time, contact his attorney, the ALJ or BPMC to timely request an adjournment. In addition, the court said that the physician’s subsequent “unsubstantiated” claim advanced in the course of an administrative appeal that his attorney was ill on the second hearing date was properly rejected as not credible, “particularly given that [the physician’s attorney] made no mention of any illness in her belated emails requesting an adjournment.”

Further, said the court, the physician waived his limited right to cross-examine the witness who had testified in his absence “by failing, without good cause, to appear.”

The court said it was not persuaded that the penalty imposed for the sustained charges -- of revocation the physician’s license to practice medicine in New York State -- was so disproportionate to the physician's pattern of misconduct, as reflected in the Board's findings, "as to shock one's sense of fairness."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_06900.htm
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