Stevenson v. Goomar ( 1989 )

Mikoll, J. (concurring).

In my view there is merit in defendant’s argument that the failure to charge him with medical malpractice in the statement of charges in the administrative proceeding under the circumstances presented here precludes a finding that the issue of medical malpractice was "fully aired” (see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 277, cert denied — US —, 109 S Ct 785).

Claims of unprofessional conduct, moral unfitness, fraudulent practice of medicine and willful harassing, abusing or intimidating a patient were set forth against defendant with respect to plaintiff in the statement of charges filed in the administrative proceeding. However, as to the three other patients involved, defendant was specifically charged with negligence and/or incompetence in the practice of medicine. In fairness, defendant should not be found guilty of committing an act with which he was not charged by the State Board for Professional Medical Conduct. Not only was there the failure to charge defendant with malpractice, but there was also the failure to offer expert medical testimony with respect to the treatment rendered plaintiff, while such testimony was presented with respect to the treatment rendered the three other patients. In light of these failures and the procedures followed at the hearing, it cannot be said, in my view, that the issues decided at the administrative hearing are identical to those raised in plaintiff’s instant medical malpractice claims (see, Matter of Rockaway Care Center v Axelrod, 134 AD2d 805, 806; cf., Matter of Clayton v Dominguez, 134 AD2d 345, 346).

Defendant has satisfied his burden of demonstrating that in these circumstances he was not afforded a full and fair opportunity in the earlier administrative proceeding of litigating the issues concerning plaintiff’s present claim of medical malpractice (see, Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153-154; Kaufman v Lilly & Co., 65 NY2d 449, 456). Significantly, the dissent cites to no authoritative case in this jurisdiction that compels the conclusion that the sexual impropriety involving plaintiff in the circumstances of this case constituted malpractice as a matter of law, nor that it was so clear that expert testimony was not required. Accordingly, I concur in the result reached by the majority.