                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 12, 2015                    517999
________________________________

In the Matter of BARLOW SMITH,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
STATE BOARD FOR PROFESSIONAL
   MEDICAL CONDUCT et al.,
                    Respondents.
________________________________


Calendar Date:   January 13, 2015

Before:   Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                             __________


      Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of
counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, New York City
(James Hershler of counsel), for respondents.

                             __________


Clark, J.

      Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to Public Health Law § 230-c [5]) to review a
determination of respondent Administrative Review Board for
Professional Medical Conduct which revoked petitioner's license
to practice medicine in New York.

      Petitioner, a board-certified psychiatrist, resides in
Texas but has been licensed to practice medicine in New York
since 1967. In February 2013, the Bureau of Professional Medical
Conduct initiated a referral proceeding against petitioner based
upon disciplinary actions taken against him in Texas.
Specifically, the Texas Medical Board found in 2009 that
petitioner had engaged in a sexual relationship with a patient.
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Pursuant to an agreed order, petitioner was publicly reprimanded
for his conduct and directed to both successfully complete a
course in professional boundaries and pay an administrative
penalty of $3,000. The Texas Medical Board further found in 2011
that petitioner had failed to maintain adequate medical records
for four of his patients, and he consented to an order directing
him to successfully complete continuing medical education courses
related to medical recordkeeping.

      Petitioner admitted that the actions set forth in the 2011
order constituted professional misconduct under New York law, but
argued that the actions that gave rise to the 2009 order did not
because they involved a former patient. Following an expedited
referral hearing before a Hearing Committee of respondent State
Board for Professional Medical Conduct – a hearing at which he
elected not to personally appear – petitioner was found guilty of
misconduct based upon both orders. Noting that he had twice been
disciplined and had failed to express remorse for his actions,
the Hearing Committee determined that revocation of petitioner's
license was an appropriate penalty. Respondent Administrative
Review Board for Professional Medical Conduct (hereinafter ARB)
affirmed, and petitioner commenced this proceeding seeking to
vacate the ARB's determination.

      We confirm. "Inasmuch as the Hearing Committee's
determination was reviewed by the ARB, our review is limited to
ascertaining whether the ARB's determination was arbitrary and
capricious, affected by error of law or an abuse of discretion"
(Matter of Harron v Daines, 74 AD3d 1529, 1531 [2010] [internal
quotation marks, brackets, ellipsis and citations omitted];
see Matter of Singh v New York State Dept. of Health Bd. of
Professional Med. Conduct, 74 AD3d 1391, 1392 [2010]).
Petitioner was charged with violating Education Law § 6530 (9)
(b) and (d), both of which permit a finding of professional
misconduct based upon disciplinary actions in other jurisdictions
involving behavior "that, if undertaken in New York, would amount
to professional misconduct under New York law" (Matter of
D'Ambrosio v Department of Health of State of N.Y., 4 NY3d 133,
139 [2005]; see Matter of Harron v Daines, 74 AD3d at 1531-1532).
                              -3-                517999

      Petitioner asserts that the conduct leading to the 2009
order did not constitute misconduct in New York because Education
Law § 6530 (44) prohibits "any physical contact of a sexual
nature between licensee and patient," but does not expressly
preclude a sexual relationship with a former patient. While that
argument is a dubious one, it is not one we need to resolve, as
the ARB determined that a physician-patient relationship existed
at the time the sexual relationship occurred. The Texas Medical
Board found that petitioner saw the patient primarily for
medication management and that, on the day their sexual
relationship began in December 2007, the patient visited his
office to obtain his signature on a prescription assistance form.
Petitioner took advantage of what he perceived as an "invitation
to intimacy" afforded when the patient burst into tears in his
presence. After the sexual encounter, petitioner cautioned the
patient to remain silent about the encounter because he was a
psychiatrist. The two had several more sexual encounters in the
following months, and the patient did not request her medical
records from petitioner until June 2008. These facts provide a
rational basis for the ARB's finding that petitioner engaged in a
sexual relationship with a current patient and that he committed
professional misconduct under New York law (see Matter of Singh v
New York State Dept. of Health Bd. of Professional Med. Conduct,
74 AD3d at 1393-1394; Matter of Clausen v New York State Dept. of
Health, 232 AD2d 917, 917-918 [1996]; Matter of Orozco v Sobol,
162 AD2d 834, 835 [1990]).

      Turning to the issue of the penalty imposed, "the refusal
to accept responsibility for prior wrongful conduct is a
significant factor in assessing an appropriate penalty," and the
record reflects that the ARB appropriately considered that issue
in deciding to revoke petitioner's license (Matter of Celestin v
Novello, 43 AD3d 545, 546 [2007]). Moreover, this Court has
repeatedly held that the penalty of license revocation is
appropriate in cases where a physician engages in sexual
misconduct, and we do not find its imposition here to be "so
incommensurate with the offense as to shock one's sense of
fairness" (Matter of D'Amico v Commissioner of Educ. of State of
N.Y., 167 AD2d 769, 771 [1990]; accord Matter of Singh v New York
State Dept. of Health Bd. of Professional Med. Conduct, 74 AD3d
at 1393).
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      Petitioner's remaining claims, including that he was
improperly penalized for disputing the allegations against him,
have been examined and found to be lacking in merit.

     Peters, P.J., Rose and Egan Jr., JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
