The State Board for Professional Medical Conduct is the body within the New York State Department of Health that investigates matters of physician misconduct. The Public Health Law provides a broad immunity for reporting professional misconduct to the Board, stating that any person who “reports or provides information to the board in good faith, and without malice shall not be subject to an action for civil damages or other relief as the result of such report.” Public Health Law (PHL) § 230(11). The question in this case, certified from the U.S. Court of Appeals for the Second Circuit, is whether New York law–specifically PHL § 230(11)(b)–allows a private right of action against those who file a report of medical misconduct in bad faith to the Board.
In this case, plaintiff medical doctor provided care for four patients injured in accidents involving vehicles for which defendant insurance company was the insurer. After denying one claim and partially paying the other three, defendant filed a report of professional misconduct by plaintiff with the Board; the Board investigated and took no disciplinary action against plaintiff. Plaintiff then filed an action for damages against defendant, claiming that it filed a report with the Board in bad faith.
To infer a private right of action, courts in New York consider: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme.” Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 633 (1989). Applying those factors (as well as an earlier federal district court decision), the district court in this case (Kaplan, SDNY) dismissed plaintiff’s bad-faith claim on the ground that PHL 230(11)(b) does not create a private right of action for medical professionals who are the subject of a report made in bad faith. The Second Circuit certified the question, citing a split in authority between the First and Second Departments of the Appellate Division. Compare Elkoulily v. N.Y.S. Catholic Heathplan, Inc., 153 A.D.3d 768, 772 (2d Dep’t 2017) (no private right of action), with Foong v. Empire Blue Cross & Blue Shield, 305 A.D.2d 330 (1st Dep’t 2003) (private right of action).
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