Papers considered: 1. Notice of Petition dated December 12, 2023; Verified Petition with Exhibits A-D. 2. Answer in Special Proceeding, with Exhibits 1-3; Affirmation of Shelly Wang Bandango in Opposition with Exhibits A-D; and Memorandum of Law in Opposition. For a Judgment Pursuant to Article 78 Of the Civil Practice Law and Rules DECISION/ORDER Petitioner, Corey J. Meyers, M.D., brings this special proceeding pursuant to CPLR Article 78 seeking judicial review of the determination of Respondents, James V. McDonald, Commissioner of the New York State Department of Health, and Shelly Wang Bandango, Director of the Office of Medical Conduct, Department of Health, whose August 17, 2023 determination denied Meyers’ application to vacate or modify Board for Professional Medical Conduct (“BPMC”) Determination and Order # 12-02, which revoked his medical license. BACKGROUND Meyers’ medical license was revoked in 2012 after 14 specifications of misconduct charges were sustained, following a three-day hearing conducted by BPMC. Eleven of those charges related to medical care and treatment provided to 4 patients in the Emergency Department at Columbia Memorial Hospital. The remaining 3 charges related to fraudulent statements made on his application to the medical staff at Catskill Regional Medical Center. Findings were sustained as to negligence on more than one occasion, incompetence on more than one occasion, gross negligence, gross incompetence, failure to maintain accurate medical records, fraud in the practice of medicine, and willfully filing a false report. Most relevant to this proceeding are the findings related to fraud. BPMC found Meyers had committed the acts of negligence, incompetence, gross negligence and gross incompetence during his employment at Columbia Memorial Hospital from December 2006 through May 2007. When he applied for employment at Catskill Regional Medical Center in 2009, he failed to list his affiliation with Columbia Memorial Hospital. Upon signing the application for employment, he confirmed that all statements therein were complete, true, and accurate. BPMC found Meyers testimony was “often evasive and non-responsive, and often at odds with the medical records”. When asked about whether he understood the importance of being open and honest regarding his past employment and investigations, Meyers explained, “I understand that there are two issues. One is being open and honest, and one is being able to support my wife and son. And when [in my opinion] false, malignant charges have been made against me and it has made me unemployable, I have to weigh those issues”. Consequently, BPMC found, “Clearly, [Petitioner] will say anything if he believes it necessary to preserve his ability to practice medicine”. It unanimously concluded that Meyers was a “fundamentally untrustworthy witness and gave no credence to his testimony”. BPMC concluded that Meyers “intentionally sought to mislead” Catskill Regional Medical Center to obtain employment there, demonstrating a clear intent to commit fraud in the practice of medicine. They further determined that Meyers’ medical license should be revoked. His mismanagement of the care of the four patients was such that BPMC found that he was “not a viable candidate for re-training [and] no amount of supervision would correct the deficiencies in [Meyers'] clinical abilities”. Furthermore, it found that “[N]o amount of retraining or supervision can correct a basic lack of honesty”. On June 9, 2022, Meyers petitioned for modification of the Determination and Order (Order # 12-02) and for reinstatement of his medical license upon grounds that circumstances have changed which warrant a reconsideration of the imposed discipline. His Petition alleges that he had: (1) successfully completed an assessment of his medical skills through the Center for Personalized Education for Physicians (“CPEP”) per the New Hampshire Board of Medicine; (2) received a neuropsychological evaluation recommended by CPEP which suggested he had a learning disability; (3) received an Order of Conditional Approval of Application for Reinstatement of License from the New Hampshire Board of Medicine; (4) received a letter from the Interim Director of Enforcement of the Massachusetts Board of Registration in Medicine which did not recommend revocation of his license; (5) completed numerous Continuing Medical Education courses; (6) demonstrated that he is a viable candidate for retraining; (7) proven he is competent to safely practice medicine in New York; (8) plans to use formatted medical records with voice recognition for documentation; and (9) reflected over the past decade on his problematic testimony and plans to change for the better. Whereas Meyers presented his conditional license from New Hampshire and the letter from Massachusetts, he failed to include therein the determination made by the Alaska Board of Registration in Medicine. When he applied to renew his medical license in 2010, Meyers responded “No” to the question, “Have you been the subject of an investigation by any licensing jurisdiction or are you currently under investigation or is any investigation pending?”, notwithstanding that New York had been investigating him since 2009. In May 2012, Alaska conducted a hearing regarding both his New York discipline and his denial that he was under investigation on his Alaska renewal application. Meyers acknowledged that his response was untrue but attributed his answer to being unsure if he was under investigation or was merely the subject of a “preliminary review”. Meyers claimed an Alaskan licensing agency employee informed him that he did not need to disclose the New York disciplinary matter but was unable to substantiate same. The Alaska Board found Meyers testimony unreasonable because Meyers had received a letter from OPMC dated August 26, 2009, which advised him that it was “currently investigating your professional conduct”. The Alaska Board revoked his license based upon reciprocal action and separately fined him for intentional deception. Consequently, Bandango declined to join Meyers’ application to vacate or modify BPMC’s Determination and Order # 12-02. Based upon the foregoing, she concluded that Meyers’ testimony did not instill confidence in his integrity, and she concurred with BPMC’s opinion that “no amount of retraining or supervision can correct a basic lack of honesty”. She opined that a modification of the discipline would be inappropriate and would not be protective of patients in New York. Bandango’s joining in Meyers’ application is a condition precedent to consideration of same by the BPMC, thus her August 17, 2023, letter constitutes Respondents’ final determination. Meyers contends that Bandango failed to appropriately weigh and consider the extensive coursework taken to improve his skills; the neurological evaluation; his conditional licensure in New Hampshire; the Massachusetts recommendation against revocation of his license; a letter from Keren L. Kelley, MPA, LNHA, written to the Alaska Attorney General’s Office; and the insight gained through the loss of his family, the occurrence of and recovery from a catastrophic spinal injury, as well as the loss of his self-identity as a physician. The failure to give appropriate weight and consideration to these factors renders Bandango’s determination arbitrary and capricious and constitutes an abuse of discretion. DISCUSSION/ARTICLE 78 STANDARD The Court’s review of an administrative body’s determination is limited to whether the determination had a rational basis and was not arbitrary and capricious. Froelich v. New York State Dept. of Corr. and Cmty. Supervision, 179 AD3d 1408, 1409-10 (3d Dept., 2020); Matter of Ward v. City of Long Beach, 20 NY2d 1042, 1043 (2013). A determination is rational where it has some objective factual basis, as opposed to resting entirely on subjective considerations. Gorecki v. New York State Dep’t of Motor Vehicles, 201 AD3d 802, 803 (2d Dept., 2022). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. Matter of Peckham v. Colagero, 12 NY3d 424 (2009). “Rationality is what is reviewed unde…the arbitrary and capricious standard”. Matter of Hanbrough v. College of St. Rose, 209 AD3d 1168, 1171 (3d Dept., 2022), quoting Matter of Pell v. Bd. of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974). Additionally, the extraordinary remedy of mandamus is not available to compel an act which involves an exercise of discretion and is only available when “there is a clear legal right to the relief sought”. Green v. Annucci, 153 AD3d 1099, 1100 (3d Dept., 2017). Public Health Law §230(10)(q) provides that, “the director shall, after reviewing the matter and consulting with department counsel determine in the reasonable exercise of his or her discretion whether there is new and material evidence that was not previously available which, had it been available, would likely have led to a different result, or whether circumstances have occurred subsequent to the original determination that warrants a reconsideration of the measure of discipline”. As Bandango’s determination involves the exercise of her discretion, Meyers’ request for an order directing Bandango to join his application to Chair of the BPMC must be denied, as mandamus is not an available remedy herein. Meyers’ assertion that Bandango’s determination is arbitrary and capricious must also be denied. Meyers’ actions in Alaska bear directly upon the issue of his fraudulent behavior here in New York. Three of the 14 specifications of charges which led to his license revocation were based upon his fraudulent conduct. His failure to appropriately disclose the New York investigation when recertifying in Alaska is remarkably similar to his failure to disclose his experience at Columbia Memorial Hospital when applying for employment at Catskill Regional. The Court finds that Bandango’s determination was rational and undertaken with regard to the facts. Thus, the Court must sustain the determination even if it might have reached a different result. Peckham v. Colagero, supra, 12 NY3d at 431. Finally, under these circumstances, the Court perceives no abuse of discretion, as Bandango recognized Meyers’ efforts to further educate himself in medicine and otherwise gave full consideration to all issues in rendering her determination. See generally, Matter of Mascali v. Town/Village of Harrison, 203 AD3d 1424, 1426 (3d Dept., 2022); Matter of Nunez v. YMCA of Greater N.Y., 210 AD3d 1269, 1272 (3d Dept., 2022). Accordingly, it is hereby ORDERED, that the Petition is dismissed. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations pursuant to CPLR 2220 regarding filing and entry of same, but that does not relieve the parties of their obligations regarding service of same with notice of entry thereon. Dated: May 15, 2024
