Summary
In Matter of Levin v Murawski (59 N.Y.2d 35, 47), the dissenting Judges, in arguing against the good-faith prerequisite finding necessary for the issuance of subpoenas mandated by the majority, pointed out that "the legislative scheme adds additional protection to the subject of the subpoena" in that "the committee must approve all subpoenas before they are issued by the executive secretary", a check "not provided in the legislation creating many administrative agencies".
Summary of this case from Dombroff v. State BoardOpinion
Argued March 22, 1983
Decided May 5, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, LOUIS OKIN, J.
Lorraine Backal for appellant in the first above-entitled proceeding, and Robert Abrams, Attorney-General ( Alan W. Rubenstein and Peter H. Schiff of counsel), for appellant in the second above-entitled proceeding. Robert Abrams, Attorney-General ( Alan W. Rubenstein and Peter H. Schiff of counsel), for respondent in the first above-entitled proceeding.
Paul E. Fitzmorris for respondent in the second above-entitled proceeding.
To sustain a subpoena issued on behalf of the State Board for Professional Medical Conduct for production of medical records in aid of an investigation of an individual physician when the investigation has been triggered by receipt of a third-party complaint, there must be a minimal threshold showing that the complaint is authentic and that it is of sufficient substance to warrant investigation. No such showing was made with respect to the issuance of the subpoenas in either of these cases.
The executive director of the State Board for Professional Medical Conduct served an office subpoena duces tecum on Dr. Levin directing him to produce "[a]ny and all records, documents or other writings pertaining to" three named patients. Dr. Levin thereupon moved pursuant to CPLR 2304 to quash the subpoena. The State Board cross-moved to compel compliance with the subpoena. Supreme Court granted the motion to quash and denied the cross motion to compel compliance. The Appellate Division, First Department, one Justice dissenting, reversed, denied the motion to quash and directed the doctor to furnish the materials requested. Dr. Levin has appealed as of right to our court.
An office subpoena duces tecum was similarly issued on behalf of the State Board to Dr. McGrath directing him to produce "[a]ny and all records, documents or other writings pertaining to every patient treated by you at your office between 2:00 P.M. and 6:00 P.M. on the afternoon of July 12, 1979." Counsel for the State Board later offered to modify the subpoena to limit the records directed to be produced to those of female patients and of one named male patient. Dr. McGrath, too, moved to quash the subpoena, and the board cross-moved to compel compliance. Special Term denied the motion to quash and granted the cross motion to compel compliance. The Appellate Division, Second Department, reversed, granted the motion to quash and denied the cross motion to compel compliance. The State Board has appealed as of right to our court.
We reverse in Levin and affirm in McGrath, holding that, on the records before us, the State Board has failed to establish a sufficient foundation for the issuance of either subpoena.
Both subpoenas were issued pursuant to authority conferred in section 230 (subd 10, pars [k], [ l]) of the Public Health Law. To establish the basis for the exercise of this authority in the present instances, the executive secretary of the State Board and Director of the Office of Professional Medical Conduct filed an affidavit in each case. The two affidavits are substantially similar and so far as presently pertinent each contains the following allegations: that the doctor to whom the subpoena was issued is currently under investigation by the State Board; that the office received "a complaint alleging professional misconduct" by the doctor ("concerning methods of treatment of particular patients" as to Dr. Levin; "with respect to his methods of alleged treatment using dangerous drugs" as to Dr. McGrath); that a proper investigation into the possible charges against the doctor requires examination of the materials subpoenaed; that the issuance of the subpoena was authorized by a screening committee of the State Board; and that the materials subpoenaed "are highly relevant and material to the investigation" of the doctor.
These paragraphs provide as follows:
"(k) The executive secretary of the board with the specific approval of a committee on professional conduct of the board shall have the power to issue subpoenas requiring persons to appear before the board and be examined with reference to a matter within the scope of the inquiry or the investigation being conducted by the board and produce books, papers, records or documents pertaining thereto.
"( l) The board or its representatives may examine and obtain records of patients in any investigation or proceeding by the board acting within the scope of its authorization. Unless expressly waived by the patient, any information so obtained shall be confidential and shall not be disclosed except to the extent necessary for the proper function of the board and New York state board of regents and the name of the patient may not be disclosed by the board or its employees at any stage of the proceedings unless the patient has expressly consented. Any other use or dissemination by any person by any means, unless pursuant to a valid court order or otherwise provided by law, is prohibited."
Each doctor challenged the subpoena served on him on two grounds — that the State Board had not established a sufficient basis for its issuance nor had it demonstrated the relevancy of the materials subpoenaed to the investigation being conducted. We uphold the former challenge.
It is not disputed that section 230 (subd 10, par [k]) of the Public Health Law confers general authority on the executive secretary of the State Board to subpoena medical records of physicians. Although the practice of medicine is subject to regulation by the State under the police power and implied authorization is given the State Board to obtain patient records for purposes of investigation of a physician notwithstanding the confidential physician-patient relationship, a minimum threshold foundation must be established to support the issuance of an office subpoena in the individual case (cf. Matter of Nicholson v State Comm. on Judicial Conduct, 50 N.Y.2d 597 [subpoena upheld where issued on written complaint by attorney together with a formal administrator's complaint and after an ex parte judicial hearing to determine the basis for the investigation]; Matter of Napatco, Inc. v Lefkowitz, 43 N.Y.2d 884 [subpoena quashed where issued on basis of advertisement and form solicitation letter]; Matter of Sussman v New York State Organized Crime Task Force, 39 N.Y.2d 227 [subpoena quashed where no basis shown]; Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250, 259 [subpoena "of the broadest possible dimensions" quashed where only basis was receipt of "numerous complaints" not otherwise authenticated]; Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 N.Y.2d 916 [subpoena upheld on bare showing of basis for committee's inquiry]). As we wrote in A'Hearn "[i]t is ancient law that no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum * * * There must be authority, relevancy, and some basis for inquisitorial action" (23 N.Y.2d, at p 918).
For the reasons explained in Matter of Sussman v New York Organized Crime Task Force ( 39 N.Y.2d 227, 231-232) the situation is otherwise with respect to the issuance of a Grand Jury subpoena (cf. Virag v Hynes, 54 N.Y.2d 437, 441-446).
The suggestion in the dissent that in Nicholson we dispensed with the necessity for threshold proof of a basis for investigation is belied by examination of the record in that case. Our concern there was with a challenge to the issuance of the subpoenas after the sufficiency of the complaint as a basis for their issuance had been established in an ex parte judicial hearing (50 N.Y.2d, at pp 611-612, n; see Matter of Nicholson v State Comm. on Judicial Conduct, 67 A.D.2d 649, 68 A.D.2d 851).
The requirement that there be prima facie proof of a justifiable basis for a good faith investigation of professional misconduct attaches to the issuance of subpoenas by the State Board for Professional Medical Conduct. That the State Board is required to "investigate each complaint received regardless of the source" (Public Health Law, § 230, subd 10, par [a]) does not serve to dispense with the necessity for such a preliminary showing. Complaints can be authenticated and the State Board can determine whether there is ground for investigation of the charges made without recourse to subpoenas. To warrant the issuance of a subpoena in furtherance of an investigation, undertaken in consequence of receipt of a complaint or otherwise, however, there must be a showing that there exists "some basis for inquisitorial action".
What is required when investigation is triggered by receipt of a complaint is a threshold showing of the authenticity of the complaint as warranting investigation, not a threshold substantiation of the charges made in the complaint. Verification of the authenticity of the complaint addresses the propriety of undertaking the investigation and can be made without the disclosure sought by a subpoena; the disclosure compelled by a subpoena is ordered in aid of investigation of the merits of the charges. It is fitting that before the investigative engines of governmental agencies are started up against an individual at least minimal warrant is shown for such intrusion.
We turn then to the cases before us. In addition to the unquestioned statutory grant of legal authority to issue an office subpoena, the State Board must establish the bona fide authenticity of the particular occasion for the exercise of the subpoena power. Where the issuance of the subpoena is based, as in these cases, on the receipt of a complaint or complaints, there must be a minimal showing that, in consequence of verification or otherwise, the complaint reasonably justifies the issuance of the subpoena in furtherance of an investigation. What showing will suffice to cross this threshold will necessarily vary from case to case. It may relate to the reliability of the complainant; it may be shown by the substance of the complaint. Specific detail as to identification of the complainant, some evidence of his good faith or reliability, disclosure of the basis for his knowledge of the substance of the complaint, with dates to establish its currency, and some revelation of the substance of the complaint will normally suffice, but all or most of this data may not be necessary. Sufficient authenticating detail may be found in the complaint itself; if not, it must be independently supplied. In the present case the only showing offered by the State Board is a bare recital of the receipt of "a complaint", with no identifying or authenticating detail. This will not suffice.
If the issuing agency demonstrates the delicacy of a particular investigation or the risk of and consequences attendant on premature disclosure, it may be appropriate to take proof of the threshold foundation in camera (see Matter of Sussman v New York State Organized Crime Task Force, 39 N.Y.2d 227, 233).
Because the State Board has failed to make a threshold demonstration of the authenticity of the complaints as justifying the issuance of the subpoenas, they must be quashed. This determination serves to dispose of the appeals in the two cases before us. Accordingly, there is no necessity now to address the second branch of the assault on these subpoenas, namely, that there was a failure to demonstrate the relevancy of the materials subpoenaed to the investigations being conducted. To do so would be inappropriate, especially in view of the failure of the parties to consider what significance, if any, should be attached to the particular language found in section 230 (subd 10, par [k]) of the Public Health Law authorizing the issuance of subpoenas "with reference to a matter within the scope of the inquiry or the investigation being conducted by the board."
For the reasons stated, the order of the Appellate Division in Matter of Levin should be reversed, with costs, and the order of Supreme Court reinstated, and in Matter of McGrath the order of the Appellate Division should be affirmed, with costs.
Judges WACHTLER, FUCHSBERG and MEYER concur with Judge JONES; Judge SIMONS dissents and votes to affirm in a separate opinion in which Chief Judge COOKE and Judge JASEN concur.
In Matter of Levin v Murawski: Order reversed, with costs, and the order of Supreme Court, New York County, reinstated.
In Matter of McGrath v State Bd. for Professional Med. Conduct: Order affirmed, with costs.
I would deny petitioners' motions to quash and grant respondents' cross motions to compel compliance with the subpoenas in these proceedings.
A motion to quash or compel compliance with an office subpoena issued by an administrative agency "raises only the issues of the authority of the investigating body and whether the inquiry falls within the scope of that authority." "To sustain the subpoenas, the [agency] need only make a preliminary showing that the information sought is reasonably related to a proper subject of inquiry" ( Matter of Nicholson v State Comm. on Judicial Conduct, 50 N.Y.2d 597, 610, 611). That is the most recent statement by this court of the legal test applicable to these proceedings and the subpoenas issued by the State Board for Professional Medical Conduct should be summarily sustained because they satisfy it. By focusing upon language found in some of the older cases (and misconstruing it in my view), the majority has formulated a new rule requiring prior proof of the complainant's reliability which will frustrate administrative investigations, and it has done so although neither petitioner nor the Appellate Divisions considered that issue. The Legislature, with the support of representative medical societies, has made recent and repeated efforts to improve and strengthen the investigative and disciplinary machinery of the board. The majority's new rule impedes these efforts and is not needed to correct any identified abuse. The change is not mandated by constitutional principles (see Schachter v Whalen, 581 F.2d 35), by statute, or by established case law and I, therefore, dissent.
All the cases make this much clear: an administrative officer or agency, acting pursuant to a legislative grant, may issue a subpoena duces tecum requiring the production of books, records and documents where such material is relevant to an authorized investigation ( Matter of Nicholson v State Comm. on Judicial Conduct, 50 N.Y.2d 597, supra; Myerson v Lentini Bros. Moving Stor. Co., 33 N.Y.2d 250; Carlisle v Bennett, 268 N.Y. 212, 217-218). The subpoena is subject to court attack by the recipient but all the agency need show to sustain it is the administrative "authority and relevancy" and, as some of our cases have added, "some basis for inquisitorial action" ( Matter of A'Hearn v Committee on Unlawful Practice of Law of N Y County Lawyers' Assn., 23 N.Y.2d 916, 918, cert den 395 U.S. 959; see, also, Myerson, supra, at p 256; but cf. Matter of Nicholson, supra, at pp 610, 611). The majority has expanded upon the term "some basis for inquisitorial action" and interpreted it to mean that the agency must investigate the complainant before it investigates the complaint. It has even suggested that in some cases a Darden-type hearing ( People v Darden, 34 N.Y.2d 177) may be required (at p 42). It holds that subpoenas may not issue unless the board can satisfy the court that the complainant is reliable. Some factual basis is required for the inquiry, certainly, but we have previously held that this requirement relates to the breadth of the inquiry and the extent of the investigation preceding the subpoena ( Matter of Myerson, supra, at p 258; Matter of A'Hearn, supra, at pp 918-919). In the case of preliminary investigative inquiries, made before charges have been preferred, we have stated that the required factual basis "is not very exacting" ( Virag v Hynes, 54 N.Y.2d 437, 442) and that a "bare showing" of the basis of the inquiry is sufficient (see Matter of A'Hearn, supra, at p 918). The requirement is really little more than a facial showing that the investigating officer is proceeding in good faith ( Matter of Nicholson v State Comm. on Judicial Conduct, 50 N.Y.2d 597, 611, supra; Matter of Sussman v New York State Organized Crime Task Force, 39 N.Y.2d 227, 231-232), a requirement so minimal that the courts, upon finding authority in the agency, have presumed good faith (see, e.g., Matter of Nicholson, supra; Matter of Ryan v Lefkowitz, 26 A.D.2d 604, affd 18 N.Y.2d 977; Matter of Amos Post, Inc. v Attorney-General of State of N.Y., 70 A.D.2d 750). In some jurisdictions it has even been held that once the administrative authority appears, no factual basis need be shown for believing a violation of law has occurred before the inquiry may be undertaken (see Oklahoma Press Pub. Co. v Walling, 327 U.S. 186, 208-209). Indeed, it is common for regulatory bodies, to say nothing of legislative bodies, to subpoena witnesses, records and documents only for the purpose of preparing legislation (see, generally, 1 Davis, Administrative Law, § 3.04, and cases cited therein).
The application of these rules by contrasting the A'Hearn and Myerson cases illustrates the departure now taken by the majority from what we have required in the past. In A'Hearn, petitioner, an insurance agent under investigation by the Committee on Unlawful Practice of the Law, was issued a subpoena duces tecum requiring him to produce copies of advertisements for pension services placed by him between specified dates, copies of brochures and copies of agreements concerning such pension services ( 30 A.D.2d 47, 49, affd 23 N.Y.2d 916, supra). The only "factual basis" offered to support the subpoena was that the Committee on Unlawful Practice had "reason" to believe that petitioner was unlawfully practicing law and wished to investigate the matter. The "reason" apparently was little more than an inference made by the members of the committee after seeing the advertisement (see Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., supra, at pp 918-919). Nevertheless, we sustained the subpoena. In Myerson, by contrast, the Commissioner of Consumer Affairs in New York City issued a subpoena duces tecum to a corporation in the business of moving household goods requiring it to produce all of its books and records for the preceding 17 months. The commissioner alleged that she had received "numerous complaints" of underestimates and overcharges which led her to believe that the corporation was engaged in a pattern of deceptive practices. Observing that the commissioner had sought to enforce a subpoena of "the broadest possible dimensions", we held her factual showing insufficient and granted the motion to quash, noting that more information relating to the number of the complaints, the period covered or the period over which they were received was required in order to support such a broad request. Additionally, we pointed out that the investigation had gone beyond the stages of a preliminary inquiry. The commissioner had already audited Lentini's books on two occasions and yet she had offered the court no evidence, either on the development of the case or the information gained by the audits, to rebut possible inferences that she was engaged in unjustified harassment. We held the factual basis was insufficient to support the subpoena because of its breadth and the corresponding intrusion into the subject's private affairs.
Considering the legislative delegation of powers to this board, only a minimal factual basis should be required. The authority of the board is set forth in section 230 of the Public Health Law which creates a State Board for Professional Medical Conduct composed of physicians, osteopaths and lay members. The physician and osteopathic members, no less than 18, are appointed by the commissioner on the recommendation of various State and local medical societies and the lay members, no less than seven, are appointed by the commissioner with the approval of the Governor. The board, certainly not a body one would expect to be hostile to the interests of physicians, is charged with the duty of investigating professional misconduct. The statute provides that the board " may investigate on its own any suspected professional misconduct" and it " shall investigate each complaint received regardless of the source" (Public Health Law, § 230, subd 10, par [a] [emphasis added]). It "may examine and obtain records of patients in any investigation or proceeding" (Public Health Law, § 230, subd 10, par [ l] [emphasis added]). This language evinces as clearly as any could, a legislative intent to empower the board with "broad discretion in determining what records are necessary to facilitate an effective investigation" (see Matter of Murawski, 84 A.D.2d 496, 498).
The board initiated these two inquiries because it received complaints about petitioners and by law it was required to investigate them "regardless of the source". Although the majority recognizes this statutory obligation, it states that the complaints must be investigated first by means other than office subpoenas unless the board can demonstrate the bona fides of its investigation. In my judgment, given the authority for the investigation and the relevance of the inquiry, the statutory duty resting on the board is sufficient predicate for showing the "good faith" of the preliminary inquiry after the board has received a complaint. Moreover, the legislative scheme adds additional protection to the subject of the subpoena. It provides that there shall be a Committee on Professional Conduct consisting of four physicians and one lay member (see Public Health Law, § 230, subd 6) and that the committee must approve all subpoenas before they are issued by the executive secretary (Public Health Law, § 230, subd 10, par [k]). In view of this check on the board's action, one not provided in the legislation creating many administrative agencies, no reason appears why the court should assume the determination of whether complaints are sufficiently reliable to warrant investigation by subpoena.
Moreover, the formulation adopted by the majority lacks precision. It requires the board, once challenged, to demonstrate prima facie a "justifiable basis for a good faith investigation"; its papers must state a "sufficient" or "a minimum threshold foundation" for the investigation. This requires a "threshold showing of authenticity" of the complaint, i.e., "a minimal showing that, in consequence of verification or otherwise", issuance of a subpoena is necessary to further the investigation. The necessary "threshold showing" includes all or some of the following: (1) identification of the complainant, (2) evidence of his reliability and (3) a disclosure of the basis for his complaint including dates.
I assume all of this means that the board must satisfy itself by an independent investigation that the complainant is reliable and that unless it can satisfy the court of that fact the subpoenas must be quashed. Matter of Myerson ( supra) is not cited as the authority for this rule but it appears to be based upon Myerson. The distinction, however, between the cases before us and Myerson could hardly be greater. These are preliminary inquiries based upon legally confidential complaints, resulting in a narrowly drawn subpoena in each case directing the production of documents to enable the board to investigate. They should be sustained because the board has acted well within the rule first stated in Matter of A'Hearn v Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn. ( supra) and repeatedly approved in our later decisions that the agency need show only authority, relevancy and some basis for the inquiry. The practical effect of this decision is that the board must now undertake a preliminary investigation of the complainant and satisfy the court with its findings, and it must do so without aid of the subpoena power. Just how this could be done in the case of an anonymous complaint is not clear but, more to the point, in most cases investigation of the complainant requires some investigation of his or her complaint and there would be little need for preliminary inquiry thereafter. The matter might as well proceed to formal charges. We rejected a similar argument in Matter of Nicholson v State Comm. on Judicial Conduct, supra, at p 611, and see n).
Finally, these requirements cut against traditional principles, also codified in the statute, which favor quick and confidential investigations of complaints against professionals (see Public Health Law, § 230, subds 9, 10, par [ l]; see, also, Matter of John P. v Whalen, 54 N.Y.2d 89; Matter of Marshall v State Bd. for Professional Med. Conduct, 73 A.D.2d 798, mot for lv to app den 49 N.Y.2d 709) followed by prompt exoneration of the blameless and aggressive action to protect the public from those suspected of being professionally incompetent, mentally ill or dishonest. Undoubtedly, the quickest way to investigate a patient's complaint (and a way, one would think, not unfairly prejudicial to the physician) is to examine the doctor's own records. In the case of Dr. Levin, three patients were involved, in the case of Dr. McGrath, only a few more. Surely, established procedure accomplishes the board's oversight responsibilities more efficiently and with greater protection for the confidentiality of the complainant and the doctor than would necessitate investigative interviews of the doctor's staff, other doctors, hospital personnel or members of the community to establish "authenticity". Certainly, it does so with less cost to the taxpayer.
To state the obvious, investigative agencies interfere with individual privacy and freedom and thus there is always the temptation to insulate the citizenry from their "meddling". But such agencies are created for a reason. In the absence of constitutional infringement or a demonstrated need for the court or Legislature to correct abuses, they should be permitted to serve the public interest as the Legislature intended and without judicial interference. In the case of the Board of Professional Medical Conduct, many of its powers have been granted only in the last few years as both the government and the medical profession recognized the need for stricter oversight of the profession. The present statute was part of a comprehensive bill which addressed the medical malpractice crisis (L 1975, ch 109; see, also, McKinney's Session Laws of NY, 1975, Legislative Memoranda, pp 1599, 1601). It eliminated or restricted certain causes of action against doctors, shortened the Statute of Limitations and created the Board of Professional Medical Conduct to strengthen disciplinary proceedings. When it appeared that the board's powers were insufficient for the task, the Legislature enacted the Medical Malpractice Act of 1977 which improved the board's complaint and summary removal procedures. Included in the act, with the support of the Medical and Osteopathic Societies of the State of New York and the New York Hospital Association, were the subpoena powers found in section 230 (subd 10, pars [k], [ l]) of the Public Health Law (L 1977, ch 773, and Bill Jackets thereto; and see, generally, Matter of Murawski, 84 A.D.2d 496, 497-498, supra). In 1980 the statute was amended again, twice, to permit early intervention by the board in aid of physicians suffering from mental illness or drug abuse (L 1980, ch 343) and to eliminate a large backlog of complaints by streamlining and speeding up investigations (L 1980, ch 866; see, also, McKinney's Session Laws of NY, 1980, Governor's Memoranda, p 1919). In light of all this activity, the legislative intent and the public need may hardly be doubted. The court should not eviscerate these efforts to improve the board's ability to fulfill its statutory duties by engrafting onto the statute subpoena requirements which were not intended and which are not required by constitutional precedent or established case law.
I would affirm the order in Matter of Levin and reverse the order in Matter of McGrath.