Roberts v. N.Y. State Bd. for Prof'l Med. Conduct

2023 NY Slip Op 01928

In the Matter of Danielle Roberts, Petitioner, v. New York State Board for Professional Medical Conduct, Respondent.

No. 534554

Supreme Court of New York, Third Department

April 13, 2023

Calendar Date: February 16, 2023

Law Office of Anthony Z. Scher, Rye Brook (Anthony Z. Scher of counsel), for petitioner.

Letitia James, Attorney General, New York City (James M Hershler of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

Fisher, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review a determination of a Hearing Committee of respondent revoking petitioner's license to practice medicine in New York.

Petitioner, a physician board-certified in family practice, was licensed to practice medicine in New York in 2009. She subsequently became involved in a personal development organization known as NXIVM and was invited to join a secret society operating under the umbrella of NXIVM known as Dominus Obsequious Soroium (hereinafter DOS). Membership in DOS involved a lifetime commitment to a "master/slave relationship" between a "mentor" and a new member, wherein an enrollee would give a "vow of obedience" - backed by damaging collateral ^[1] - and undergo an initiation ceremony that involved receiving a specific branding in the pelvic region that included the NVIXM founder's initials. Over the course of petitioner's involvement with DOS, she performed the video-recorded ceremonial branding of 17 women with an electrocautery device, most of whom were nude and had to be held down by other members or enrollees.

In 2020, following the investigation into a complaint filed by a former DOS member (hereinafter the complainant) who had been branded by petitioner, the Bureau of Professional Medical Conduct charged petitioner with committing 47 specifications of professional misconduct. The charges related primarily to petitioner's actions of branding women during the DOS initiation ceremonies, but certain charges were also related to petitioner's attendance at a NXIVM corporate retreat and her failure to report the outbreak of an illness thereat. Petitioner narrowly challenged the charges on the ground that respondent did not have jurisdiction to bring such charges against her because she was not engaged in the practice of medicine while performing the branding and that her duty to report an outbreak did not extend to her attendance at a corporate retreat. Following an extensive hearing, a Hearing Committee of respondent (hereinafter the Committee) found that petitioner was engaged in the practice of medicine, sustained all 47 charges and revoked petitioner's license to practice medicine. Petitioner then commenced this CPLR article 78 proceeding seeking to annul the Committee's determination.

Petitioner did not seek review by respondent's Administrative Review Board; therefore, our scope of review is limited to whether the Committee's decision is supported by substantial evidence (see Matter of Josifidis v Daines, 89 A.D.3d 1257, 1258 [3d Dept 2011], lv denied 19 N.Y.3d 801 [2012]; compare Matter of D'Souza v New York State Dept. of Health, 68 A.D.3d 1562, 1563 [3d Dept 2009]). "Substantial evidence is a minimal standard that requires less than the preponderance of the evidence and demands only the existence of a rational basis in the record as a whole to support the findings upon which the determination is based" (Matter of Vera-Llivicura v State of New York, 211 A.D.3d 1447, 1449 [3d Dept 2022] [internal quotation marks and citations omitted]). To that extent, "[w]hether the alleged misconduct actually occurred within the practice of medicine is a factual determination to be made by the Committee which will not be disturbed if it has a rational basis" (Matter of Addei v State Bd. for Professional Med. Conduct, 278 A.D.2d 551, 552 [3d Dept 2000]). During our review, "we will defer to the Committee's credibility determinations and resolution of conflicting evidence" (Matter of Anghel v Daines, 86 A.D.3d 869, 872 [3d Dept 2011]).

As relevant here, "[t]he practice of the profession of medicine is defined as diagnosing, treating, operating or prescribing for any human disease, pain, injury, deformity or physical condition" (Education Law § 6521). The definition of "physical" encompasses "[o]f, relating to, or involving someone's body as opposed to mind" (Black's Law Dictionary [11th ed 2019], physical). Unlike tattooing and body art, branding is not regulated in New York, but courts have nonetheless considered electric cauterization to come under the purview of a medical procedure (see Bing v Thunig, 2 N.Y.2d 656, 659-663 [1957]; Sutch v Yarinsky, 292 A.D.2d 715, 716-717 [3d Dept 2002]; Lohan v Evanczyk, 229 A.D.2d 844, 844-845 [3d Dept 1996]).

Here, we find that substantial evidence supports the Committee's determination to sustain the specifications of professional misconduct related to the ritual branding of members of DOS. The record established that petitioner acknowledged that she relied on her medical background for "life" and that she could not "separate [herself] from [her] medical experience" or from her "education as a physician." Her status as a physician was well-known within the NXIVM community. Resultantly, she was approached by higher-ranking DOS members to perform the ceremonial brandings and, although several non-physician members were considered to perform the branding, petitioner was ultimately chosen. Several of the DOS members who were branded, including the complainant, provided testimony to the effect that they were relieved or comforted knowing that a physician would be performing the branding.

In carrying out the ceremonial branding, petitioner's act of using an electric cauterization tool altered the members' skin, appearance and physical condition of their pelvic region. Although petitioner contends that her ritualistic branding of DOS members was for nonmedical reasons and lacked a sufficient nexus with the practice of medicine, it is apparent that petitioner used her medical knowledge and training to create a specific physical condition - a permanent scar - on the enrollees. In doing so, the Bureau's expert testified that petitioner's actions in branding DOS members constituted the practice of medicine by "operating" on a physical condition (see Education Law § 6521; Black's Law Dictionary [11th ed 2019], physical). Although the Committee also heard conflicting testimony from petitioner's expert, who testified that branding does not constitute the practice of medicine because it is more like a "scrape" and not a burn, this is belied by the record; images of the complainant's branding depicted second-degree burns. As such, the Committee's credibility determinations regarding the experts, and the reliance it placed on such testimony, are supported by substantial evidence in the record (see Matter of Anghel v Daines, 86 A.D.3d at 872; see also Matter of Eisenberg v Daines, 99 A.D.3d 1117, 1119 [3d Dept 2012]).

Furthermore several witnesses testified that, following the branding ritual, petitioner also provided wound care, which consisted of her applying ointment and a bandage to the injury site. Newly-branded members were then instructed to send photographs of their branding to a liaison, who then forwarded the photographs to peti...