Matter of El-Sherif v Ad Hoc Comm.

[*1] Matter of El-Sherif v Ad Hoc Comm. 2006 NY Slip Op 51512(U) [12 Misc 3d 1190(A)] Decided on August 1, 2006 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 1, 2006
Supreme Court, Kings County

In the Matter of Nabil El-Sherif, M.D., Petitioner,

against

Ad Hoc Committee, Appointed by the State University of New York, Downstate Medical Center, Respondent.



13188/06

Herbert Kramer, J.

Does mandamus lie to compel a hospital committee to proceed expeditiously with a hearing upon the summary suspension of a doctor's clinical privileges?

Petitioner,[FN1] a physician whose privileges were suspended on April 15, 2005, seeks to compel the respondent to proceed forthwith with the hearing upon his suspension which was requested in April of 2005 and has yet to be concluded. Respondent moves to dismiss the petition arguing that this Court lacks jurisdiction because petitioner has not [*2]exhausted his administrative remedies and since mandamus to compel does not lie.

Petitioner's clinical privileges at Downstate were summarily suspended on April 15, 2005 on multiple grounds. By letter dated April 19, 2005, petitioner requested the hearing that he was entitled to pursuant to the hospital's by-laws which unambiguously grant a right to a hearing when there is a suspension of clinical privileges. The time frames allotted by these by-laws for the accomplishment of the hearing and review process are relatively short and the appointed committee members are required to possess broad expertise.[FN2] By letter dated April 21, 2005, petitioner was notified, and indeed the by-laws so require, that the hearing was to be conducted within thirty (30) days of April 19th 2005. On May 19th 2005 counsel for petitioner wrote to respondents indicating that he had not as of yet received notice of the commencement of the hearing.

The hearing was ultimately commenced on August 4th and thereafter two hours of testimony were taken on August 16th, September 15th and November 29, 2005. On November 29, 2005, the Committee concluded the proceedings saying that they were prepared to vote, and would invite the petitioner back only if they could not reach a consensus. Although the by-laws require that after a postponement, "[r]econvening shall be made at the earliest possible time," the committee did not reconvene until February 2, 2006.

Although the hearing had been continued over several months, beginning in early August of 2005, it inexplicably was not until February of 2006 that the committee acknowledged that they did not possess the requisite expertise to evaluate petitioner's performance without expert assistance. The chairman indicated that they had obtained the necessary material and data and were prepared to go forward with the selection of experts. A Mr. Fisher commented that "We have already determined that the process is taking far too long, but as far as the substance in terms of our recommendation, we have been stymied. . . After announcing a methodology for getting expert advice, the chairman acknowledged that "I think part of the difficulty has been for us, frankly and some of it is I had no idea what I was getting into . . . "

The list of experts was promulgated on March 29, 2006. Since then there has [*3]been no further progress with the hearing.[FN3]

Discussion

"'New York State regulations provide that a hospital must have 'a medical staff organized under bylaws approved by the governing body' (10 NYCRR 405.1023; see 10 NYCRR 405.1 [a]). Those regulations further require that the by-laws of a hospital shall include '[a] procedure for granting and withdrawing privileges to physicians' and '[a] mechanism for appeal of decisions regarding medical staff membership and privileges' (10 NYCRR 405.1023 [i] [2] [iii]), [iv]). To suggest that a hospital is not bound by its by-laws, which are mandated by the regulations, would reduce the by-laws to a 'meaningless mouthing of words' (see Tedeschi v. Wagner Coll., 49 NY2d 652, 662)'." Murphy v. St. Agnes Hosp., 107 AD2d 685(2d Dept. 1985).

The by-laws which were created pursuant to state regulation require the hospital to conduct a hearing and proceed expeditiously to judgment. Indeed, the language incorporated into the by-laws recognizes that due process concerns are implicated in a prompt resolution of the issues. Moreover, the cause of the delay which appears to have been the scheduling of expert testimony must be laid at the feet of the committee which is mandated by the by-laws to be composed of members who possess a broad expertise. This committee of experts should at the very least have been able to anticipate their need for expert advice much earlier in the process.

"[T]he function of mandamus [is] to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so [T]he writ of mandamus . . . may also be addressed to subordinate judicial tribunals to compel them to exercise their functions, but never to require them to decide in a particular manner.. . . [*4]This principle applies to every case where the duty, performance of which is sought to be compelled is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgment. The character of the duty and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be." Klostermann v. Cuomo, 61 NY2d 525, 540 (1984).

The extended delay complained of by petitioner is a text book example of a subject suited to remediation by means of mandamus to compel. Here, the respondents are proceeding in a quasi-judicial capacity making a factual determination of whether grounds exist for the petitioner's suspension. As such, they may be compelled to speedily conclude this hearing and issue a determination. Petitioner is not asking this Court to decide the matter of his suspension. Thus, this is not a question of telling the Committee what to decide but of telling them when to decide by directing them to proceed to an expeditious determination. Nor, under these circumstances can petitioner be fairly relegated to the exhaustion of administrative remedies before this Court can act. "The exhaustion rule . . . is not an inflexible one. It is subject to important qualifications. It need not be followed, for example . . . when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury . . ." Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52 (NY, 1978). Since the petitioner cannot access the next level of administrative review until this hearing is concluded and it is to that end that petitioner seeks this Court's assistance, it would be a sheer circularity of logic to require him to await the resolution of the hearing and the conclusion of administrative review for him to receive this assistance.

The petition is granted to the extent that the respondents are directed to reconvene the hearing within twenty days of the entry of this order and are further directed to continue to meet at frequent and regular intervals until this matter is decided. This Court retains jurisdiction over this matter until the hearing is concluded in order to make any further orders necessitated by any future delays. The remaining portions of the petition are denied with leave to renew should circumstances so dictate.

This constitutes the decision and order of the Court.

J.S.C. Footnotes

Footnote 1:Petitioner is board certified in Internal Medicine, Cardiology and Cardiac Electrophysiology. He held a faculty appointment at SUNY, Health Science Center at Brooklyn ("Downstate") from 1979 to 2005, and From 1986 to 2005 petitioner was the Associate Vice Chairman for Research and Director of the Electrophysiology at Downstate

Footnote 2:The Chairman of the Executive Committee appoints an ah hoc hearing committee consisting of at least five staff members whose should "represent the full spectrum of the Medical and Dental Staff so that all points of view can be represented and that completely objective decisions can be made." The members of the Ad Hoc committee must be appointed within 5 working days of the receipt of the request for a hearing. The date of the hearing shall be no less than 30 days from the receipt of the registered letter providing notice of the time and place of the hearing sent to the practitioner. The rules specifically provide that "All practicable steps shall be taken to ensure the prompt notification of the hearing date."

Footnote 3:The by-laws recognize the due process concerns involved in a speedy resolution of the hearing and appellate process. The by-laws require that the committee must send its written recommendation and the basis of it to the Executive Committee within ten days of the conclusion of the hearing. The Executive Committee is to consider the recommendation at its next monthly meeting or within fifteen after receiving it whichever comes first. Indeed, the by-laws announce that "In the interest of due process, it is understood that the Executive Committee will conclude its review of the recommendation with thirty (30) days and report its recommendation . . . to the President of S.U.NY The Executive Committee must notify the practitioner within five (5) days of its recommendation and an appeal must be made in within ten (10) days of the receipt of the adverse recommendation. The President must make a determination within ten days of the receipt of the request for and appeal and issue his report within ten days from the filing of the request of appeal to the practitioner. The President may reject, uphold or reject or modify the recommendation of the Committee and if his decision is favorable to the practitioner the suspension "shall be removed immediately and the previous status of the practitioner shall be restored."