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EXHIBIT 14
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AFFIDAVIT OF SHELLY WANG BANDAGO, FOR RESPONDENTS, IN
OPPOSITION TO PETITION, SWORN TO AUGUST 8, 202 [247-256]
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Michael Gurevich M.D.,
Index No. 154230/2022
Petitioner,
(Justice Arlene P. Bluth)
- against -
AFFIDAVIT OF
Mary T. Bassett, M.D. in her official capacity as SHELLY WANG BANDAGO
commissioner NYS Dept. of Health, NYS Dept. Of
Health, Paula Breen In her official capacity as
Director NYS Office of Professional Medical
Conduct,
NYS Office Of Prof, Med. Conduct; NYS Board Of
Professional Medical Conduct, George Russel Autz
M.D. in his official capacity as member of NYS Bd. Prof.
Med. Conduct, Roseanne C. Berger M.D. in her official
capacity as member of NYS Bd. Prof. Med. Conduct,
Roosevelt Boursiquot M.D. in his official
capacity as
member of NYS Bd. Prof. Med. Conduct, Lawrence J.
Epstein M.D.in his official capacity as member of NYS
Bd. Prof. Med. Conduct, Lynn Gladys Mark D.O. in her
official capacity as member of NYS Bd. Prof. Med.
Conduct, Marian Goldstein in her official capacity as
public member NYS Bd. of Prof. Med.
Conduct, Martha
Grayson M.D. in her official capacity as member NYS
Bd. Prof. med. Conduct, Elisabeth Benson Guthrie in
her official capacity as public member NYS Bd. of Prof.
Med. Conduct, Sumathi Kasinathan M.D. in her official
capacity as member NYS Bd. Prof. Med. Conduct,
Kathleen S. Lill, PA in her official
capacity as member
NYS Bd. Prof. Med. Conduct, Robert G. Lerner in his
official capacity as public member NYS Bd. of Prof.
Med. Conduct, Joann Marino in her official
capacity as
public member NYS Bd. of Prof. Med.
Conduct, Louis J.
Papa M.D. in his official capacity as member NYS Bd.
Prof. Med; Conduct, Maria Plummer M.D. in her official
capacity as member NYS Bd. Prof. Med. Conduct,
Swaminathan Rajan M.D. in his official
capacity as a
member NYS Bd. Prof. med. Conduct, Ramanathan
Raju M.D. in his official capacity as member of NYS Bd.
Prof. Med. Conduct, Najeeb Rehman M.D. in his official
capacity as member of NYS Bd. Prof. Med. Conduct;
Sumir Sahgal in his official capacity as member of NYS
Bd. Prof. Med. Conduct, Arash Salemi M.D. in his
official capacity as member of NYS Bd.
Prof. Med. Conduct, Nancy Sapio M.D. in her official
capacity as member of NYS Bd. Prof. Med. Conduct,
Neeta Mina Shah M.D. in her official
capacity as
member of NYS Bd. Prof. Med. Conduct, Rahul Sharma
M.D. in his official capacity as member of NYS Bd. Prof.
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Med. Conduct, Amit M. Shelat M.D. in his official
capacity as member of NYS, Bd. Prof. Med. Conduct,
Greg Shutts PA in his official capacity as member of
NYS Bd. Prof. Med. Conduct, Robert R. Walther M.D. in
his official capacity as member of NYS Bd. Prof, Med.
Conduct, David Wlody M.D. in his official
capacity as member of NYS Bd. Prof. Med. Conduct,
Jacqueline Loher Rn - OPMC investigator,
Respondents.
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
SHELLY WANG BANDAGO, being duly sworn, deposes and says:
1. I am the Director of the Office of Professional Medical Conduct ("OPMC"), which
is within the New York State Department of Health (the "Department"). I have been the OPMC
Director since January 2022, and previously served as the Interim Director of the Office of
Professional Medical Conduct from July 2021 to January 2022. I am responsible for overseeing
all aspects of the Department's professional medical conduct program.
2. I am familiar with the facts and circumstances of this matter based upon my
personal knowledge and my review of OPMC's files.
3. I submit this affidavit in opposition to the petition, dated May 11, 2022, for an
order that prohibits the respondents' from maintaining any disciplinary proceedings against
petitioner based on (a) information obtained pursuant to an administrative order titled "Director's
Patient"
Order of Comprehensive Review of and/or office records dated 5/26/2020; or (b)
information obtained in connection with patient R.C. Petitioner improperly asserts that the Order
1 It appears that
petitioner's counsel has mistakenly named, as defendants, the members of the New York
State Board of Medicine, which is part of the New York State Education Department. Of the 26 persons
who are listed as members of "the NYS Bd. Prof. Med. Conduct," only three (Dr. Raju, Dr. Saplo, and Dr.
Shelat) are members of the State Board for Professional Medical Conduct.
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was entered without authority, Public Health Law 230(10)(a)(iv)(C) is unconstitutional, records
were obtained from petitioner through false pretenses and threats of disciplinary action and
without a subpoena that complies with the Fourth Amendment, and that OPMC commenced this
investigation because of his administration of Complementary Altemative Medicine including
ozone therapy and other non-conventional modalities.
Procedures for Investigating and Prosecuting Physician Misconduct
4. The OPMC's mission is to protect the public from professional misconduct by
Investigating, and when appropriate, disciplining physicians and physician assistants against
whom complaints of professional misconduct have been made. The definitions of professional
misconduct are contained in New York State Education Law § 6530. As an administrative unit of
the Department, OPMC operates on behalf of the Board for Professional Medical Conduct (the
"Board") and under its direction. The OPMC is created by, and its authority and actions are
governed by, Public Health Law ("PHL") § 230. Legal counsel to OPMC and the Board is
provided by the Bureau of Professional Medical Conduct ("BPMC"), which is part of the
Department's Division of Legal Affairs. BPMC prosecutes physician and physician assistant
disciplinary proceedings, among other things.
5. The Board, which is composed of physicians and laypersons appointed pursuant
to the provisions of PHL § 230(1), was created by the State Legislature to investigate
complaints of professional misconduct, issue charges against licensees, conduct disciplinary
hearings, impose penalties where appropriate, and monitor compliance with Board Orders. The
Board acts upon recommendations made by the Director of OPMC at the conclusion of their
investigation or, if necessary, to further the investigation.
6. Pursuant to PHL § 230(10)(a), the Board, through the Director of OPMC, must
investigate each complaint of professional misconduct regardless of its source, and may initiate
its own investigations of suspected professional misconduct. PHL § 230(10)(a)(i). The process
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for investigating professional misconduct complaints is set forth in Public Health Law (PHL) §
230.
7. Once a written complaint has been received, it is reviewed by investigative and
medical staff at OPMC. All complaints of possible professional misconduct received by OPMC
must remain and are kept confidential.PHL § 230(11)(a). The investigative files are also
confidential per PHL § 230(10)(a)(v).
8. As part of the investigation of complaints Involving clinical care, OPMC
investigators and medical staff obviously must review complete patient medical records.
Pursuant to PHL § 230(10)(1), the Board or its representatives are authorized to obtain records
of patients in any investigation or proceeding by the Board acting within the scope of its
authorization. A licensee's failure to provide relevant records with respect to an inquiry or
complaint about the licensee's professional misconduct may constitute professional misconduct
pursuant to Education Law § 6530(28).
9. After OPMC staff review the medical records, OPMC may proceed with the
investigation or administratively close the case. If the investigation of cases referred to an
Investigation Committee involves issues of clinical practice, OPMC is required to consult with
medical experts. PHL §230 (10)(a)(ii). In addition, in the investigation of cases referred to an
investigation committee, OPMC is required to offer the licensee under investigation an
opportunity for an interview to provide an explanation of the issues under investigation. PHL
§230 (10)(a)(iii). The Director may then determine that the matter shall be submitted to an
Investigation Committee for concurrence that a hearing is warranted; for authorization to
conduct a comprehensive review of the licensee's patient records; or for concurrence that
issuance of an Administrative Waming is appropriate. PHL § 230 (10)(a)(iv) and 230 (10)(m)
10. Education Law §§ 6530 and 6531 provide that certain acts-including practicing
the profession with negligence and incompetence on more than one occasion, or practicing the
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profession with gross negligence or gross incompetence on one occasion--are to be
considered professional misconduct by a New York-licensed physician.
11. If a majority of the Investigation Committee concurs with the Director that a
hearing is warranted, the Director shall-within fifteen days thereafter-direct BPMC to prepare
the charges. PHL § 230(10)(a)(iv). The charges must then be served upon the licensee together
with a notice that a hearing on the charges will be provided before an administrative law judge.
12. After the hearing, the parties submit proposed findings of fact and conclusions of
Law. The hearing committee of the Board then deliberates, makes findings of fact, determines
whether the charges should be sustained or dismissed, and determines what penalty or other
appropriate action should be taken as to the charges that are sustained. Based on the hearing
committee's deliberations, the administrative law judge prepares a proposed decision and
circulates it to the members of the Board for their approval. Either party may appeal the hearing
committee's decision to an administrative review board and then seek review from the Appellate
Division, Third Department, or proceed directly to the Appellate Division, Third Department.
13. It Is important to note that, in accordance with PHL § 230(9)-b, the Board does
not charge licensees with misconduct, or investigate a report beyond the preliminary review,
where the report is determined to be based solely upon "the recommendation or provision of a
treatment modelity to a particular parient by such licensee that is not universally accepted by the
."
medical profession .. . See also PHL § 230(10)(a).
pr. Miçhael Gurevich
14. in the instant case, OPMC received a complaint2 on November 15, 2010, that Dr.
therapy"
Gurevich, a Psychiatrist (New York License No. 170878), provided "ozone air to patient
RC who had sustained a severe bum to her right hand and forearm from a wood buming stove.
As set forth above, OPMC is obilgated to investigate all complaints that it receives of possible
2Acopyofthiscomplaintisbeingsubmittedwithmyin-cameraaffidavit.
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professional misconduct. PHL 230(10)(a)(i). In January 2017, OPMC, acting on behalf of the
Board, requested copies of the patient's medical records pursuant to Public Health Law
230(10)(1). A copy of this request is annexed hereto as Exhibit A. The petitioner, after retaining
counsel,3 provided copies of the relevant medical records.
15. Notwithstanding the State defendants clear authorization to obtain the records
and petitioner's compliance with the proper request (while being counseled by his attorney),
petitioner now alleges that the defendants obtained the medical records "through false
and threats "
pretenses of disciplinary license prosecution for noncompliance Complaint, ¶ 15.
16. In August 2018, a Medical Expert (ME) reviewed the patient's medical records
and reported that Dr. Gurevich's treatment and care exhibited a severe deviation from the
standard of care for an inadequate physical examination of the patient's hand, noting that there
was no documentation of how the hand injury had occurred, and a lack of referrals for
evaluation by a plastic surgeon or trauma surgeon may have contributed to a delay in treatment
and further harm to the patient A redactedd copy of the Expert Report is annexed as Exhibit B.
17. Between August 2018 and September 2019, the Department's Medical
Coordinator Dr. Dennis Barek reviewed medical records and the Expert Report referenced in
the preceding paragraph. OPMC then engaged a second ME, who is a specialist in attemative
care, to review patient RC's medical records. The second ME opined that there were several
issues that required clarification, for example, it was unclear whether the skin wound discussed
in Dr. Gurevich's notes was the same burn wound that ultimately required surgery. The ME
noted that, if it is the same burn wound, "Dr. Gurevich's failure to properly diagnose and treat it
represented a severe deviation from the standard of care and had the potential to cause severe
patient."
harm to the A copy of this expert's September 2019 report is annexed hereto as
Petitioner's counsel at the time was RichardJaffe. We were advised on March 23, 2022 that Dr. Gurevich's
current counsel, Jacques Simon, would represent him going forward.
' The
identities of medical experts are kept confidential until the case reaches the hearing stage. confidential
Inforrnation has also been redacted from the medical expert reports.
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Exhibit C. The issue was clarified during Dr. Gurevich's interview. The ME issued a follow-up
report in which he stated unequivocally that "Dr. Gurevich's failure to properly diagnose and
treat this situation represent a severe deviation from the standard of care which had the
potential to cause patient."
serious harm to the A copy of this February 25, 2020 report is
annexed hereto as Exhibit D.
18. In addition, Dr. Dennis Barek reviewed Experts'
the Medical Reports and
determined that all experts agree that Dr. Gurevich's care of patient RC departed from
severely
the standard of care and that the patient should have been referred to a bum or hand specialist.
Dr. Barek recommended an interview of the licensee and preparation for an Investigation
Committee.
19. It is important to note that the investigation proceeded, not because Dr. Gurevich
practices non-conventional treatment, as he claims, but because he administered several
intravenous treatments that medical experts have confirmed are potentially dangerous and
because there is no scientific evidence that these potentially dangerous treatments would aid
recovery. in the case of patient RC, the treatment may have caused a delay in treatment.
20. By letter dated October 7, 2019, OPMC provided Dr. Gurevich an opportunity to
interview to provide an explanation of the issues under investigation. A copy of this letter is
annexed hereto as Exhibit E. The interview was subsequently scheduled for January 30, 2020.
Counsel falsely states that the letter "purposely fail[ed] to advise Petitioner that he 'may be
represented by counsel and may be accompanied by a stenographer to transcribe the
proceeding."
Paragraph one of the letter expressly informs petitioner that he "may have legal
counsel present during this Interview and may be accompanied by a stenographer to transcribe
proceeding."
the
21. Dr. Gurevich was interviewed at DOH, with counsel present, on January 30,
2020. Dr. Gurevich explained in the interview that he treated patient RC with nine ozone therapy
treatments between July 7 and August 2, 2016. When asked why he did not refer RC to a bum
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specialist, he responded that RC was seeing a primary care physician who should have made
that referral. Later, during an interview with OPMC Nurse Investigator ("Nl") Loehr on February
6, 2020, Patient RC stated that they did not have a primary care physician during that time.
22. By letter dated March 5, 2020, OPMC offered Dr. Gurevich another opportunity
for interview concerning the allegations regarding his care of patient RC. Dr. Gurevich declined
this interview. A copy of the offer and a copy of the declination are annexed hereto as Exhibit F.
23. On or about May 26, 2020, after the OPMC Director determined that the
investigation revealed evidence of a single incident of negligence or incompetence and after
consultation with an Investigation Committee, the Investigation Committee authorized the
Director to conduct a comprehensive review of patient records of the licensee and such office
records as are related to said determination. Subsequently, the Director issued an Order of
Comprehensive Review of Patient and/or Office Records pursuant to PHL §230 (10)(a)(iv). A
G."
copy of the Director's Order is annexed hereto as Exhibit
24. On or about August 19, 2020, NI Loehr and Senior Medical Conduct Investigator
(MCI) Marshal Carroll conducted a Cornprehensive Medical Review at Dr. Gurevich's office
while the licensee was present. NI Loehr and MCI Carroll advised Dr. Gurevich of the
allegations that prompted the investigation, provided documentation concerning the
investigation, and asked Dr. Gurevich to provide a selection of patient medical records for
review. Dr. Gurevich provided copies of about 16 records. NI Loehr and MCI Carroll randomly
selected the records of eight patients. The records of these eight patients were then sent to the
second ME for review. Although the ME opined that overall, the treatment to these patients was
acceptable,"
"unconventional but the ME noted several moderate to severe deviations from the
standard of care, including the intravenous treatments given to four patients that could have
caused potential harm. A copy of the second ME's report, dated October 24, 2020, is annexed
hereto as Exhibit H. Dr. Dennis Barek reported on October 26, 2020 that he agreed with the
ME regarding the dangers of some of the substances that Dr. Gurevich treated his patients with.
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25. In accordance with its statutory duties set forth in PHL §230 (10)(a), having
investigated Dr. Gurevich's care and treatment of the four patients referenced in paragraph 24,
on or about January 25, 2021, OPMC offered Dr. Gurevich an opportunity to be interviewed
conceming his care and treatment of these four patients. A copy of OPMC's letter is annexed
I"
hereto as Exhibit
26. On April 8, 2021, NI Loehr and Medical Coordinator Beatrice Kovasznay
Interviewed Dr. Gurevich by telephone with his attomey present. This interview concemed
mostly Dr. Gurevich's ozone therapy treatments and his care of the above four patients.
27. The second ME reviewed additional information concerning Dr. Gurevich's
treatment of the eight patients (that NI Loehr and MCI Carroll randomly selected at the August
19, 2020 CMR), including Dr. Gurevich's corrections to the April 8, 2021 Report of interview and
his explanations conceming his treatment of each patient and concluded on or about September
20, 2021 that none of the additional documentation reviewed changed any of his original
opinions conceming the case of Dr. Gurevich. A copy of the ME's September 20, 2021 report is
annexed hereto as Exhibit J.
28. On or about October 21, 2021, OPMC offered Dr. Gurevich an additional
interview opportunity concerning his care and treatment of patient RC and the four patients
(referenced in paragraph 24 above) who received intravenous treatments that could have
caused potential harm. Dr. Gurevich declined this interview opportunity on or about November
1, 2021. A copy of this interview offer and petitioner's declination are annexed hereto as Exhibit
K. The case was presented to the investigation Committee on December 21, 2021, and the
Investigation Committee concurred with the Director's determination that a hearing is warranted.
29. Based on the foregoing, the Director of OPMC properly issued the May 26, 2020
Records"
"Director's Order of Comprehensive Review of Patient and/or Office following a
thorough investigation of the November 2016 complaint, the information that OPMC and the
Board obtained in connection with patient RC was obtained with full authority pursuant to PHL
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230(10)(I), which authorizes the Board or its representatives to obtain patient records during any
investigation by the Board, and a hearing involving Dr. Gurevich is warranted in light of the
investigation (including the expert reports) that revealed that Dr. Gurevich used potentially
harmful treatment that has not been approved by the FDA and that were not medically
warranted. At this time, the Department intends to file appropriate charges against Dr. Gurevich,
Failing to thoroughly investigate petitioner's conduct and to commence disciplinary action would
be tantamount to neglecting Its duties to protect the public health.
HELLY ANG B AGO
in to before me this
day of August 202
hofary Put
NotaryPetsostalsefNemilsk
1.0
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FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 EXHIBIT 14 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 247 AFFIDAVIT OF SHELLY WANG BANDAGO, FOR RESPONDENTS, IN OPPOSITION TO PETITION, SWORN TO AUGUST 8, 202 [247-256] {FILED L NEW YORK COUNTY CLERK 0 8 / 15 / 2 02 2 02 : 52 INDEX NO. 154230/2022 PM) NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Michael Gurevich M.D., Index No. 154230/2022 Petitioner, (Justice Arlene P. Bluth) - against - AFFIDAVIT OF Mary T. Bassett, M.D. in her official capacity as SHELLY WANG BANDAGO commissioner NYS Dept. of Health, NYS Dept. Of Health, Paula Breen In her official capacity as Director NYS Office of Professional Medical Conduct, NYS Office Of Prof, Med. Conduct; NYS Board Of Professional Medical Conduct, George Russel Autz M.D. in his official capacity as member of NYS Bd. Prof. Med. Conduct, Roseanne C. Berger M.D. in her official capacity as member of NYS Bd. Prof. Med. Conduct, Roosevelt Boursiquot M.D. in his official capacity as member of NYS Bd. Prof. Med. Conduct, Lawrence J. Epstein M.D.in his official capacity as member of NYS Bd. Prof. Med. Conduct, Lynn Gladys Mark D.O. in her official capacity as member of NYS Bd. Prof. Med. Conduct, Marian Goldstein in her official capacity as public member NYS Bd. of Prof. Med. Conduct, Martha Grayson M.D. in her official capacity as member NYS Bd. Prof. med. Conduct, Elisabeth Benson Guthrie in her official capacity as public member NYS Bd. of Prof. Med. Conduct, Sumathi Kasinathan M.D. in her official capacity as member NYS Bd. Prof. Med. Conduct, Kathleen S. Lill, PA in her official capacity as member NYS Bd. Prof. Med. Conduct, Robert G. Lerner in his official capacity as public member NYS Bd. of Prof. Med. Conduct, Joann Marino in her official capacity as public member NYS Bd. of Prof. Med. Conduct, Louis J. Papa M.D. in his official capacity as member NYS Bd. Prof. Med; Conduct, Maria Plummer M.D. in her official capacity as member NYS Bd. Prof. Med. Conduct, Swaminathan Rajan M.D. in his official capacity as a member NYS Bd. Prof. med. Conduct, Ramanathan Raju M.D. in his official capacity as member of NYS Bd. Prof. Med. Conduct, Najeeb Rehman M.D. in his official capacity as member of NYS Bd. Prof. Med. Conduct; Sumir Sahgal in his official capacity as member of NYS Bd. Prof. Med. Conduct, Arash Salemi M.D. in his official capacity as member of NYS Bd. Prof. Med. Conduct, Nancy Sapio M.D. in her official capacity as member of NYS Bd. Prof. Med. Conduct, Neeta Mina Shah M.D. in her official capacity as member of NYS Bd. Prof. Med. Conduct, Rahul Sharma M.D. in his official capacity as member of NYS Bd. Prof. 1 1 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 248 [FILED : NEW YORK COUNTY CLERK 08 /15 /2022 02 : 52 INDEX No. 1542.30/2022 PM) NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/15/2022 Med. Conduct, Amit M. Shelat M.D. in his official capacity as member of NYS, Bd. Prof. Med. Conduct, Greg Shutts PA in his official capacity as member of NYS Bd. Prof. Med. Conduct, Robert R. Walther M.D. in his official capacity as member of NYS Bd. Prof, Med. Conduct, David Wlody M.D. in his official capacity as member of NYS Bd. Prof. Med. Conduct, Jacqueline Loher Rn - OPMC investigator, Respondents. STATE OF NEW YORK ) ) ss.: COUNTY OF ALBANY ) SHELLY WANG BANDAGO, being duly sworn, deposes and says: 1. I am the Director of the Office of Professional Medical Conduct ("OPMC"), which is within the New York State Department of Health (the "Department"). I have been the OPMC Director since January 2022, and previously served as the Interim Director of the Office of Professional Medical Conduct from July 2021 to January 2022. I am responsible for overseeing all aspects of the Department's professional medical conduct program. 2. I am familiar with the facts and circumstances of this matter based upon my personal knowledge and my review of OPMC's files. 3. I submit this affidavit in opposition to the petition, dated May 11, 2022, for an order that prohibits the respondents' from maintaining any disciplinary proceedings against petitioner based on (a) information obtained pursuant to an administrative order titled "Director's Patient" Order of Comprehensive Review of and/or office records dated 5/26/2020; or (b) information obtained in connection with patient R.C. Petitioner improperly asserts that the Order 1 It appears that petitioner's counsel has mistakenly named, as defendants, the members of the New York State Board of Medicine, which is part of the New York State Education Department. Of the 26 persons who are listed as members of "the NYS Bd. Prof. Med. Conduct," only three (Dr. Raju, Dr. Saplo, and Dr. Shelat) are members of the State Board for Professional Medical Conduct. 2 2 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 249 FILED : NEW YORK COUNTY CLERK 0 8 /15 /2022 02 : 52 INDEX No. 154230/2022 PM NYSCEF DOC. No. 26 RECEIVED NYSCEF: 08/15/2022 was entered without authority, Public Health Law 230(10)(a)(iv)(C) is unconstitutional, records were obtained from petitioner through false pretenses and threats of disciplinary action and without a subpoena that complies with the Fourth Amendment, and that OPMC commenced this investigation because of his administration of Complementary Altemative Medicine including ozone therapy and other non-conventional modalities. Procedures for Investigating and Prosecuting Physician Misconduct 4. The OPMC's mission is to protect the public from professional misconduct by Investigating, and when appropriate, disciplining physicians and physician assistants against whom complaints of professional misconduct have been made. The definitions of professional misconduct are contained in New York State Education Law § 6530. As an administrative unit of the Department, OPMC operates on behalf of the Board for Professional Medical Conduct (the "Board") and under its direction. The OPMC is created by, and its authority and actions are governed by, Public Health Law ("PHL") § 230. Legal counsel to OPMC and the Board is provided by the Bureau of Professional Medical Conduct ("BPMC"), which is part of the Department's Division of Legal Affairs. BPMC prosecutes physician and physician assistant disciplinary proceedings, among other things. 5. The Board, which is composed of physicians and laypersons appointed pursuant to the provisions of PHL § 230(1), was created by the State Legislature to investigate complaints of professional misconduct, issue charges against licensees, conduct disciplinary hearings, impose penalties where appropriate, and monitor compliance with Board Orders. The Board acts upon recommendations made by the Director of OPMC at the conclusion of their investigation or, if necessary, to further the investigation. 6. Pursuant to PHL § 230(10)(a), the Board, through the Director of OPMC, must investigate each complaint of professional misconduct regardless of its source, and may initiate its own investigations of suspected professional misconduct. PHL § 230(10)(a)(i). The process 3 3 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 250 (FILED : NEW YORK COUNTY CLERK 08/15/2022 02: 52 INDEX No. 154230/2022 PM) NYSCEF DOC. NO. 26 RECEIVED NYSCEF : 08 / 15 / 2 022 for investigating professional misconduct complaints is set forth in Public Health Law (PHL) § 230. 7. Once a written complaint has been received, it is reviewed by investigative and medical staff at OPMC. All complaints of possible professional misconduct received by OPMC must remain and are kept confidential.PHL § 230(11)(a). The investigative files are also confidential per PHL § 230(10)(a)(v). 8. As part of the investigation of complaints Involving clinical care, OPMC investigators and medical staff obviously must review complete patient medical records. Pursuant to PHL § 230(10)(1), the Board or its representatives are authorized to obtain records of patients in any investigation or proceeding by the Board acting within the scope of its authorization. A licensee's failure to provide relevant records with respect to an inquiry or complaint about the licensee's professional misconduct may constitute professional misconduct pursuant to Education Law § 6530(28). 9. After OPMC staff review the medical records, OPMC may proceed with the investigation or administratively close the case. If the investigation of cases referred to an Investigation Committee involves issues of clinical practice, OPMC is required to consult with medical experts. PHL §230 (10)(a)(ii). In addition, in the investigation of cases referred to an investigation committee, OPMC is required to offer the licensee under investigation an opportunity for an interview to provide an explanation of the issues under investigation. PHL §230 (10)(a)(iii). The Director may then determine that the matter shall be submitted to an Investigation Committee for concurrence that a hearing is warranted; for authorization to conduct a comprehensive review of the licensee's patient records; or for concurrence that issuance of an Administrative Waming is appropriate. PHL § 230 (10)(a)(iv) and 230 (10)(m) 10. Education Law §§ 6530 and 6531 provide that certain acts-including practicing the profession with negligence and incompetence on more than one occasion, or practicing the 4 4 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 251 (FILED INDEX NO. 154230/2022 : NEW YORK COUNTY CLERK 08/15/2022 02:52 P$ NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/15/2022 profession with gross negligence or gross incompetence on one occasion--are to be considered professional misconduct by a New York-licensed physician. 11. If a majority of the Investigation Committee concurs with the Director that a hearing is warranted, the Director shall-within fifteen days thereafter-direct BPMC to prepare the charges. PHL § 230(10)(a)(iv). The charges must then be served upon the licensee together with a notice that a hearing on the charges will be provided before an administrative law judge. 12. After the hearing, the parties submit proposed findings of fact and conclusions of Law. The hearing committee of the Board then deliberates, makes findings of fact, determines whether the charges should be sustained or dismissed, and determines what penalty or other appropriate action should be taken as to the charges that are sustained. Based on the hearing committee's deliberations, the administrative law judge prepares a proposed decision and circulates it to the members of the Board for their approval. Either party may appeal the hearing committee's decision to an administrative review board and then seek review from the Appellate Division, Third Department, or proceed directly to the Appellate Division, Third Department. 13. It Is important to note that, in accordance with PHL § 230(9)-b, the Board does not charge licensees with misconduct, or investigate a report beyond the preliminary review, where the report is determined to be based solely upon "the recommendation or provision of a treatment modelity to a particular parient by such licensee that is not universally accepted by the ." medical profession .. . See also PHL § 230(10)(a). pr. Miçhael Gurevich 14. in the instant case, OPMC received a complaint2 on November 15, 2010, that Dr. therapy" Gurevich, a Psychiatrist (New York License No. 170878), provided "ozone air to patient RC who had sustained a severe bum to her right hand and forearm from a wood buming stove. As set forth above, OPMC is obilgated to investigate all complaints that it receives of possible 2Acopyofthiscomplaintisbeingsubmittedwithmyin-cameraaffidavit. 5 5 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 252 |FILED : NEW YORK COUNTY CLERK 08/15/202 2 02 : 52 INDEX NO. 154230/2022 PM| NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/15/2022 professional misconduct. PHL 230(10)(a)(i). In January 2017, OPMC, acting on behalf of the Board, requested copies of the patient's medical records pursuant to Public Health Law 230(10)(1). A copy of this request is annexed hereto as Exhibit A. The petitioner, after retaining counsel,3 provided copies of the relevant medical records. 15. Notwithstanding the State defendants clear authorization to obtain the records and petitioner's compliance with the proper request (while being counseled by his attorney), petitioner now alleges that the defendants obtained the medical records "through false and threats " pretenses of disciplinary license prosecution for noncompliance Complaint, ¶ 15. 16. In August 2018, a Medical Expert (ME) reviewed the patient's medical records and reported that Dr. Gurevich's treatment and care exhibited a severe deviation from the standard of care for an inadequate physical examination of the patient's hand, noting that there was no documentation of how the hand injury had occurred, and a lack of referrals for evaluation by a plastic surgeon or trauma surgeon may have contributed to a delay in treatment and further harm to the patient A redactedd copy of the Expert Report is annexed as Exhibit B. 17. Between August 2018 and September 2019, the Department's Medical Coordinator Dr. Dennis Barek reviewed medical records and the Expert Report referenced in the preceding paragraph. OPMC then engaged a second ME, who is a specialist in attemative care, to review patient RC's medical records. The second ME opined that there were several issues that required clarification, for example, it was unclear whether the skin wound discussed in Dr. Gurevich's notes was the same burn wound that ultimately required surgery. The ME noted that, if it is the same burn wound, "Dr. Gurevich's failure to properly diagnose and treat it represented a severe deviation from the standard of care and had the potential to cause severe patient." harm to the A copy of this expert's September 2019 report is annexed hereto as Petitioner's counsel at the time was RichardJaffe. We were advised on March 23, 2022 that Dr. Gurevich's current counsel, Jacques Simon, would represent him going forward. ' The identities of medical experts are kept confidential until the case reaches the hearing stage. confidential Inforrnation has also been redacted from the medical expert reports. 6 6 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 253 (FILED : NEW YORK COUNTY CLERK 0 8 /15 /2022 02 : 52 INDEX No. 154230/2022 PM) NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/15/2022 Exhibit C. The issue was clarified during Dr. Gurevich's interview. The ME issued a follow-up report in which he stated unequivocally that "Dr. Gurevich's failure to properly diagnose and treat this situation represent a severe deviation from the standard of care which had the potential to cause patient." serious harm to the A copy of this February 25, 2020 report is annexed hereto as Exhibit D. 18. In addition, Dr. Dennis Barek reviewed Experts' the Medical Reports and determined that all experts agree that Dr. Gurevich's care of patient RC departed from severely the standard of care and that the patient should have been referred to a bum or hand specialist. Dr. Barek recommended an interview of the licensee and preparation for an Investigation Committee. 19. It is important to note that the investigation proceeded, not because Dr. Gurevich practices non-conventional treatment, as he claims, but because he administered several intravenous treatments that medical experts have confirmed are potentially dangerous and because there is no scientific evidence that these potentially dangerous treatments would aid recovery. in the case of patient RC, the treatment may have caused a delay in treatment. 20. By letter dated October 7, 2019, OPMC provided Dr. Gurevich an opportunity to interview to provide an explanation of the issues under investigation. A copy of this letter is annexed hereto as Exhibit E. The interview was subsequently scheduled for January 30, 2020. Counsel falsely states that the letter "purposely fail[ed] to advise Petitioner that he 'may be represented by counsel and may be accompanied by a stenographer to transcribe the proceeding." Paragraph one of the letter expressly informs petitioner that he "may have legal counsel present during this Interview and may be accompanied by a stenographer to transcribe proceeding." the 21. Dr. Gurevich was interviewed at DOH, with counsel present, on January 30, 2020. Dr. Gurevich explained in the interview that he treated patient RC with nine ozone therapy treatments between July 7 and August 2, 2016. When asked why he did not refer RC to a bum 7 7 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 254 |FILED : NEW YORK COUNTY CLERK 08/15/2022 02: 52 INDEX NO. 154230 j2022 PMl NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/15/2022 specialist, he responded that RC was seeing a primary care physician who should have made that referral. Later, during an interview with OPMC Nurse Investigator ("Nl") Loehr on February 6, 2020, Patient RC stated that they did not have a primary care physician during that time. 22. By letter dated March 5, 2020, OPMC offered Dr. Gurevich another opportunity for interview concerning the allegations regarding his care of patient RC. Dr. Gurevich declined this interview. A copy of the offer and a copy of the declination are annexed hereto as Exhibit F. 23. On or about May 26, 2020, after the OPMC Director determined that the investigation revealed evidence of a single incident of negligence or incompetence and after consultation with an Investigation Committee, the Investigation Committee authorized the Director to conduct a comprehensive review of patient records of the licensee and such office records as are related to said determination. Subsequently, the Director issued an Order of Comprehensive Review of Patient and/or Office Records pursuant to PHL §230 (10)(a)(iv). A G." copy of the Director's Order is annexed hereto as Exhibit 24. On or about August 19, 2020, NI Loehr and Senior Medical Conduct Investigator (MCI) Marshal Carroll conducted a Cornprehensive Medical Review at Dr. Gurevich's office while the licensee was present. NI Loehr and MCI Carroll advised Dr. Gurevich of the allegations that prompted the investigation, provided documentation concerning the investigation, and asked Dr. Gurevich to provide a selection of patient medical records for review. Dr. Gurevich provided copies of about 16 records. NI Loehr and MCI Carroll randomly selected the records of eight patients. The records of these eight patients were then sent to the second ME for review. Although the ME opined that overall, the treatment to these patients was acceptable," "unconventional but the ME noted several moderate to severe deviations from the standard of care, including the intravenous treatments given to four patients that could have caused potential harm. A copy of the second ME's report, dated October 24, 2020, is annexed hereto as Exhibit H. Dr. Dennis Barek reported on October 26, 2020 that he agreed with the ME regarding the dangers of some of the substances that Dr. Gurevich treated his patients with. 8 8 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 255 INDEX NO. 154230/2022 RECEIVED NYSCEF: 08/15/2022 NYSCEF DOC. NO. 26 25. In accordance with its statutory duties set forth in PHL §230 (10)(a), having investigated Dr. Gurevich's care and treatment of the four patients referenced in paragraph 24, on or about January 25, 2021, OPMC offered Dr. Gurevich an opportunity to be interviewed conceming his care and treatment of these four patients. A copy of OPMC's letter is annexed I" hereto as Exhibit 26. On April 8, 2021, NI Loehr and Medical Coordinator Beatrice Kovasznay Interviewed Dr. Gurevich by telephone with his attomey present. This interview concemed mostly Dr. Gurevich's ozone therapy treatments and his care of the above four patients. 27. The second ME reviewed additional information concerning Dr. Gurevich's treatment of the eight patients (that NI Loehr and MCI Carroll randomly selected at the August 19, 2020 CMR), including Dr. Gurevich's corrections to the April 8, 2021 Report of interview and his explanations conceming his treatment of each patient and concluded on or about September 20, 2021 that none of the additional documentation reviewed changed any of his original opinions conceming the case of Dr. Gurevich. A copy of the ME's September 20, 2021 report is annexed hereto as Exhibit J. 28. On or about October 21, 2021, OPMC offered Dr. Gurevich an additional interview opportunity concerning his care and treatment of patient RC and the four patients (referenced in paragraph 24 above) who received intravenous treatments that could have caused potential harm. Dr. Gurevich declined this interview opportunity on or about November 1, 2021. A copy of this interview offer and petitioner's declination are annexed hereto as Exhibit K. The case was presented to the investigation Committee on December 21, 2021, and the Investigation Committee concurred with the Director's determination that a hearing is warranted. 29. Based on the foregoing, the Director of OPMC properly issued the May 26, 2020 Records" "Director's Order of Comprehensive Review of Patient and/or Office following a thorough investigation of the November 2016 complaint, the information that OPMC and the Board obtained in connection with patient RC was obtained with full authority pursuant to PHL 9 9 of 10 FILED: NEW YORK COUNTY CLERK 02/06/2023 10:54 PM INDEX NO. 151205/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 02/06/2023 256 |FILED : NEW YORK COUNTY CLERK 08/15/2022 02:5 2 INDEX NO. 154230/2022 PM| NYSCEF DOC. No, 26 RECEIVED NYSCEF: 09 / 15 / 2022 230(10)(I), which authorizes the Board or its representatives to obtain patient records during any investigation by the Board, and a hearing involving Dr. Gurevich is warranted in light of the investigation (including the expert reports) that revealed that Dr. Gurevich used potentially harmful treatment that has not been approved by the FDA and that were not medically warranted. At this time, the Department intends to file appropriate charges against Dr. Gurevich, Failing to thoroughly investigate petitioner's conduct and to commence disciplinary action would be tantamount to neglecting Its duties to protect the public health. HELLY ANG B AGO in to before me this day of August 202 hofary Put NotaryPetsostalsefNemilsk 1.0 10 of 10