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Health & Hospitals Corp., (Woodhull Medical

and Mental HealthCenter) v. Levy

OATH Index No. 403/07 (Jan. 9, 2007)

ALJ recommends dismissal of charges that hospital officer made flirtatious overtures to patient in his care; hospital failed to present any evidence corroborating patient testimony.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HEALTH AND HOSPITALS CORP.,

(WOODHULL MEDICAL AND MENTAL HEALTHCENTER)

Petitioner

- against -

MARTIN LEVY

Respondent

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REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

EXCERPTED FROM THE TRANSCRIPT OF PROCEEDINGS ON DECEMBER 6, 2006

ALJ RICHARD: All right, I would normally hear closing argument from counsel at this point in the proceeding. But I am prepared to render a recommendation, because I’ve heard enough of the evidence. Having considered all the evidence, Irecommend that the charges be dismissed. I’ve listened very closely to the patient’s testimony, Ms. Simm. By all accounts, the witness came into the hospital agitated. She was confronted by the Hospital Police Officer, and she felt confined. She was agitated and depressed, and she herself admitted she was in a fragile state that day. While her story is not completely incredible, the hospital failed to corroborate any of it and the witness’s fragile emotional state led me to question her motives.

On the other hand, I found Respondent credible in his testimony about his job responsibilities and how he carried them out and his denial that he engaged in the conduct alleged.

It is Petitioner’s burden to convince the tribunal by a preponderance of the evidence that what the hospital claims occurred, did in fact occur. In this case, it would have been relatively simple to corroborate what the patient accuses Mr. Levy of doing. She claimed that he asked her out on a date and for her cell phone number and then called the cell phone to check that she had given him the correct information. He then became upset that her phone did not ring and challenged her about it. Her claim that he made a phone call to her cell phone, and made a phone call from her cell phone could have been confirmed by simply looking at her cell phone at the time that she made the complaint or sometime later. But that did not happen. Dr. Leal, who received the complaint from her, did what he was obligated to do by reporting the allegation, but he and the hospital should have gone further to corroborate her allegations. In his defense, respondent denied the allegation and testified that he did not have a cell phone and he does not take one to work. That testimony was not disproven. The hospital did not take a statement from the Respondent at the time of the complaint.

In addition, the patient made what I assume was a new claim, because it is not charged in the petition. She testified today that respondent called her again days later. Since this was never alleged by Petitioner, I assume that was a new allegation. That the allegation is only coming out now suggests to me that it is an embellishment. If Ms. Simm had received a subsequent phone message from Respondent, it is something that she should have conveyed to the hospital and it too should have been investigated. It is Petitioner’s obligation to prove its case by a preponderance and Ms. Simm’s testimony alone was insufficient to do that.

Irecommend dismissal of these charges.

I will send for a copy of the transcript, and my report and recommendation will be contained within. We will send that out as soon as we get it. Anything further?

MR. APPELL: No, Your Honor.

ALJ RICHARD: Okay, thank you.

MR. APPELL: Thank you, Your Honor.

Tynia D. Richard

Administrative Law Judge

January 9, 2007

SUBMITTED TO:

IRIS JIMINEZ-HERNANDEZ

Executive Director

APPEARANCES:

MICHELLE EMMONS, ESQ.

Attorney for Petitioner

STEPHEN E. APPELL, ESQ.

Attorney for Respondent.