Cameron v. Zucker et al

Filing 63

OPINION AND ORDER. The foregoing constitutes the Court's Finding of Fact and Conclusions of Law. The Court has considered all of the arguments of the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the plaintiff's motion for a preliminary injunction is denied. The Clerk is directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 6/6/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
DANIEL CAMERON,
Plaintiff,

17-cv-3420 (JGK)

- against HOWARD ZUCKER, ET AL.,

OPINION AND ORDER

Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Daniel Cameron, a medical doctor, brings this action
against numerous defendants accusing them of conspiracy to
violate the Sherman Act, 15 U.S.C. §§ 1, 2. He also alleges that
the defendants violated his constitutional rights and provisions
of the New York Public Health Law. Dr. Cameron alleges that
disciplinary proceedings have been initiated against him in a
bad faith effort to interfere with his medical practice, which
consists substantially of the treatment and care of individuals
with Lyme disease.
The plaintiff moves pursuant to Rule 65 of the Federal
Rules of Civil Procedure for a preliminary injunction (1)
enjoining the hearing on a Statement of Charges brought against
the plaintiff by the New York State Board for Professional
Medical Conduct, which is scheduled to begin on June 12, 2017,
and any subsequent hearings; and (2) enjoining the defendants

1

from taking any further disciplinary action against the
plaintiff’s medical license, on the theory that the hearing and
any such actions constitute a bad faith prosecution in violation
of the plaintiff’s constitutional rights and the Sherman Act.
The Court held an evidentiary hearing on the motion for a
preliminary injunction on June 6, 2017. Having assessed the
credibility of the witnesses and reviewed the evidence, the
Court makes the following Findings of Fact and reaches the
following Conclusions of Law.
I.
The following facts are based on the parties’ submissions
in connection with the preliminary injunction, and the evidence
elicited at the hearing before the Court.
A.
The plaintiff is a medical doctor based in Mount Kisco, New
York whose practice consists primarily of the diagnosis and
treatment of patients affected by chronic Lyme disease. Cameron
Aff. in Supp. of Mot. (“Cameron Aff.”) ¶ 2. There are at least
two different methodologies for the diagnosis and treatment of
Lyme disease: one set of guidelines prescribed by the Infectious
Disease Society of America (“IDSA”) and another prescribed by
the International Lyme and Associated Diseases Society
(“ILADS”). Id. ¶¶ 2, 8; Complaint (“Compl.”) Exs. B, C. Dr.

2

Cameron treats patients pursuant to the ILADS guidelines.
Cameron Aff. ¶ 2.
The Office of Professional Medical Conduct (“OPMC”), an
administrative unit within the New York State Department of
Health, is charged with investigating misconduct by medical
professionals, including physicians, physician assistants, and
special assistants. Nemerson Aff. in Opp. to Mot. (“Nemerson
Aff.”) ¶ 4. The Director must “investigate each complaint
received regardless of the source.” N.Y. Pub. H. L.
§ 230(10)(a). The Director of the OPMC may, in its discretion,
then present its investigation to a three-person Investigation
Committee of the State Board for Professional Medical Conduct
(“BPMC”). Nemerson Aff. ¶¶ 10-11; N.Y. Pub. H. L.
§ 230(10)(a)(iv). The BPMC was created pursuant to New York
Public Health Law § 230(1) and is comprised of physicians and
laypersons appointed by the Commissioner of Health. Nemerson
Aff. ¶ 8; N.Y. Pub. H. L. § 230(1). The BPMC typically acts not
as a whole but through three-person Committees comprised of two
physicians and one layperson. Nemerson Aff. ¶ 8; N.Y. Pub. H. L.
§ 230(6). Those committees are authorized to take only certain
kinds of actions, all of which are set out in New York Public
Health Law § 230. If an investigation is presented to a BPMC
Investigation Committee, the individual being investigated has
the right to be interviewed by the OMPC in order to provide an
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explanation of the issues being investigated. N.Y. Pub. H. L.
§ 230(10)(a)(iii). If a majority of a three-person Investigation
Committee of the BPMC concurs with the determination of the
Director of the OPMC that a hearing is warranted, the
investigation is referred to the Bureau of Professional
Misconduct (“Bureau”), where a Statement of Charges against the
medical professional is drafted. Nemerson Aff. ¶ 4; N.Y. Pub. H.
L. § 230(10)(a)(iv).
Counsel for the Bureau then presents the case to a BPMC
Hearing Committee. Nemerson Aff. ¶ 8; N.Y. Pub. H. L.
230(10)(a)(iv), 10(e). A Hearing Committee performs adjudicative
functions in cases brought against individuals by the Bureau,
including making findings of fact, conclusions concerning
whether the charges against the individual should be sustained
or dismissed, and, if charges are sustained, determining the
appropriate penalty. Nemerson Aff. ¶ 8; N.Y. Pub. H. L.
§ 230(10)(g). The Hearing Committee is not bound by the rules of
evidence, but must base its conclusions on a preponderance of
the evidence. N.Y. Pub. H. L. § 230(10)(f). Either party may
appeal the determination of the Hearing Committee to the
Administrative Review Board for Professional Medical Conduct
(“ARB”), which consists of five members of the BPMC, including
three physicians and two laypersons. N.Y. Pub. H. L. § 230-c(1),
(2). Parties may seek judicial review of the determination of
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the ARB in an Article 78 proceeding, N.Y. C.P.L.R. § 7801 et
seq., or may bypass the ARB altogether by appealing the
determination of the Hearing Committee directly in an Article 78
proceeding. N.Y. Pub. H. L. § 230-c(5). The result of the
Article 78 proceeding may then be appealed to the Appellate
Division, Third Department. Id.
Thus, in sum, an investigation into a physician’s medical
conduct begins with the Director of the OPMC, who must
investigate all complaints of misconduct. Only if the Director
finds it appropriate will that investigation be presented to a
three-person Investigation Committee of the BPMC. And then, only
if –- after the physician has the opportunity to be interviewed
–- the OPMC Director and a majority of the Investigation
Committee concur that a Hearing is appropriate will a Statement
of Charges be drafted and the case presented to a Hearing
Committee for potential discipline.
B.
The OPMC began an initial investigation of Dr. Cameron in
2000 after receiving two complaints about Dr. Cameron’s care of
certain patients and learning of an investigation of Dr. Cameron
by Oxford Health Plans. Nemerson Aff. Ex. B. That initial
investigation, which involved Dr. Cameron’s care and treatment
of eleven patients, lasted throughout 2001 and 2002 before being
closed without being presented to a BPMC Investigation
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Committee. Id. In 2008, the OPMC opened a new investigation into
Dr. Cameron after receiving two patient complaints. That
investigation eventually expanded to include a review of the
care and treatment provided to ten patients, including six
patients identified in the initial investigation.
As part of the investigation Dr. Cameron, accompanied by
his lawyer, was interviewed over two days by Dr. Burt Meyers, a
medical coordinator, and Patrick Sullivan. Dr. Cameron received
a record of that interview, and his lawyer made a follow-up
submission including comments and corrections to the interview
record. Id. Dr. Cameron alleges that the Report of Interview was
biased because Dr. Meyers “is a proponent and supporter of the
IDSA treatment and of the exclusion of ILADS based treatments
and diagnostic modalities.” Cameron Aff. ¶ 79. At the hearing,
Dr. Meyers credibly denied the charge and explained that he had
never read the ILADS guidelines. Dr. Cameron also alleged “upon
information and belief” that his lawyer’s comments to the Report
of Interview were never presented to the Investigation Committee
(Cameron Aff. ¶ 69), but Nemerson testified credibly during the
hearing that they were in fact presented. Dr. Cameron declined
an opportunity for another interview. Nemerson Aff. Ex. B.
Upon review of the investigation, Keith Servis, the OPMC
Director at the time, determined that a Committee Hearing was
warranted and submitted the investigation to a BPMC
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Investigation Committee in November 2011, which unanimously
concurred with the Director’s determination. Nemerson Aff.
¶¶ 10, 25. Associate Counsel of the OPMC, in consultation with a
medical expert who reviewed the relevant medical records, then
drafted a Statement of Charges against Dr. Cameron, which
includes allegations of negligent, incompetent, grossly
negligent, and grossly incompetent medical practice, and failure
to maintain accurate medical records. Id. ¶¶ 26-27.
A draft Statement of Charges was provided to Dr. Cameron’s
counsel in or around July 2012, at which point Dr. Cameron filed
suit in New York state court. Id. ¶ 28, Ex. D. The Health
Department consented to stay the disciplinary proceedings
pending resolution of Dr. Cameron’s lawsuit. Id. ¶ 28. Dr.
Cameron brought an Article 78 proceeding in the New York State
Supreme Court, New York County. He sought to prevent the filing
of the Statement of Charges against him, arguing, among other
things, that the investigative process had been inadequate and
that he was being targeted for practicing according to ILADS
guidelines. Id. Ex. D. The court denied the petition in its
entirety. The court concluded that there was no basis for
prospective injunctive relief, and that Dr. Cameron could
present his arguments regarding the investigative process to the
Hearing Committee itself if such a hearing was convened. Id. Ex.
D. The court found that Dr. Cameron was entitled to bring an
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Article 78 proceeding only after a hearing in the event that the
charges were sustained. Id. Ex. D. The Appellate Division, First
Department affirmed the judgment dismissing the petition. The
Appellate Division concluded that Dr. Cameron must exhaust
administrative remedies because “there is no legally cognizable
injury to be suffered solely from being subjected to the
disciplinary hearings with the possibility of a subsequent
finding of professional misconduct.” Nemerson Aff. Ex. D p. 49
(alterations and quotation marks omitted).
In February 2017, Dr. Cameron’s motion for leave to appeal
to the Court of Appeals was denied. Id. Ex. D. Thereafter, the
OPMC served a Notice of Hearing and Statement of Charges on Dr.
Cameron. Nemerson Aff. ¶ 29-30; Compl. Ex. A. That hearing is
set to begin on June 12, 2017. Nemerson Aff. ¶ 29. The Statement
of Charges against Dr. Cameron includes allegations regarding
the care and treatment of seven of Dr. Cameron’s patients. See
Compl. Ex. A. In particular, it charges Dr. Cameron with
negligence, incompetence, gross negligence, and gross
incompetence in the practice of medicine, and with failure to
maintain medical records. During the course of the hearing
scheduled for June 12, an Administrative Law Judge (“ALJ”) will
be designated and will be authorized to rule on all motions and
objections. Id. ¶¶ 32-33; N.Y. Pub. H. L. § 230(10)(e). Dr.
Cameron will have a right to be represented by counsel, a right
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to present witnesses and evidence, to cross-examine witnesses
against him, and to have subpoenas issued on his behalf.
Nemerson Aff. ¶ 32; N.Y. Pub. H. L. § 230(10)(c).
C.
Dr. Cameron filed this action on May 9, 2017, seeking
injunctive relief to prevent the conduct of the disciplinary
hearing on June 12 or on any date thereafter. ECF No. 2. The
defendants include Dr. Howard Zucker, the Commissioner of the
New York State Department of Health; Keith Servis, the former
Director of the OPMC, and a variety of other individuals
currently or formerly associated with the OPMC and BPMC. Id. The
Complaint also seeks several other forms of relief, including a
declaratory judgment and a permanent injunction declaring the
defendants’ conduct “illegal and unconstitutional” and as having
been carried out “in furtherance of a conspiracy [to] violate
the Sherman Antitrust Act” and enjoining the defendants from
“taking any action or causing any action to be taken against
[the] Plaintiff’s medical license.” Id. ¶¶ 69, 73.
The Complaint alleges four causes of action. In the first
cause of action, the plaintiff alleges violations of Sections 1
and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2. In
essence, the plaintiff claims that the defendants have conspired
to place unreasonable restrictions on the medical trade in New
York by excluding competitive ILADS guidelines-based medical
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services. The plaintiff also alleges that the defendants are
seeking to form a monopoly of IDSA guidelines-based medical
services. See Compl. ¶¶ 294-303. In the second cause of action,
the plaintiff seeks a permanent injunction under 42 U.S.C.
§ 1983 because the plaintiff alleges that the defendants have
violated and are about to violate his constitutional rights
under the Fourteenth Amendment “to be free from bad faith
prosecutions . . .” Compl. ¶¶ 306; see Compl. ¶¶ 304-309. In his
third cause of action, the plaintiff seeks a declaratory
judgment. Compl. ¶¶ 310-314. His fourth purported claim seeks a
preliminary injunction. Compl. ¶¶ 315-325.
The plaintiff filed a motion for a temporary restraining
order and a preliminary injunction, asking this Court to
intervene in the state disciplinary proceedings and prevent the
Hearing currently scheduled to begin on June 12. The plaintiff
argues that such intervention is necessary because the hearing
constitutes a bad faith prosecution that has been staged in
order to harass the plaintiff and “stamp out ILADS based Lyme
disease medical services.” Cameron Reply Aff. in Supp. of Mot.
¶ 25; Mem. in Supp. of Mot. p. 7. The plaintiff argues further
that he is entitled to a preliminary injunction because the bad
faith prosecution itself constitutes irreparable injury, and
because the plaintiff is likely to succeed on the merits of his
claim for injunctive and declaratory relief. This Court denied
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the plaintiff’s request for a temporary restraining order and
scheduled a hearing on the motion for a preliminary injunction.
ECF No. 35.
II.
The plaintiff moves for a preliminary injunction: (1)
preventing the hearing currently scheduled to begin June 12,
2017, and any hearings thereafter, from occurring; (2) enjoining
the defendants from taking “any action” against the plaintiff’s
medical license; and (3) preventing the defendants from using
the medical disciplinary process to restrict the plaintiff’s
practice of medicine. Proposed Order p. 2. The standards that
govern the issuance of a preliminary injunction are well
established. “A party seeking a preliminary injunction
ordinarily must show: (1) a likelihood of irreparable harm in
the absence of the injunction; and (2) either a likelihood of
success on the merits or sufficiently serious questions going to
the merits to make them a fair ground for litigation, with a
balance of hardships tipping decidedly in the movant’s favor.”
Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008). But when,
“as here, the moving party seeks a preliminary injunction that
will affect government action taken in the public interest
pursuant to a statutory or regulatory scheme, the injunction
should be granted only if the moving party meets the more
rigorous likelihood-of-success standard.” County of Nassau, N.Y.
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v. Leavitt, 524 F.3d 408, 414 (2d Cir. 2008) (quotation marks
omitted).
It is plain that the only basis on which the plaintiff
seeks a preliminary injunction is the alleged violation of his
constitutional right not to be subjected to a disciplinary
proceeding brought in bad faith in violation of 42 U.S.C.
§ 1983. Although the plaintiff asserted antitrust claims in his
Complaint, the defendants responded to the motion for a
preliminary injunction, in part, by explaining that the
plaintiff had not established a likelihood of success on the
merits of his antitrust claims. The plaintiff did not respond to
those arguments and conceded at the hearing that the antitrust
claims cannot entitle the plaintiff to preliminary injunctive
relief. In any event, the plaintiff has not attempted to explain
how any irreparable antitrust injury would result if the
disciplinary hearing moves forward, because the plaintiff
remains free to practice medicine during the course of the
proceedings in front of the Hearing Committee. There is no
restraint on trade and no monopolization.
A.
The threshold issue is whether this Court must abstain from
enjoining the state proceedings under Younger v. Harris, 401
U.S. 37 (1971). The Younger abstention doctrine “generally
requires federal courts to abstain from taking jurisdiction over
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federal constitutional claims that involve or call into question
ongoing state proceedings.” Diamond “D” Constr. Corp. v.
McGowan, 282 F.3d 191, 198 (2d Cir. 2002). Although the doctrine
was “born in the context of state criminal proceedings, it now
applies with equal force” to state “civil enforcement
proceedings.” Id.; Peters v. Neroni, 598 F. App’x 797, 798 (2d
Cir. 2015) (summary order) (finding that “[s]tate-initiated
disciplinary proceedings against lawyers for violation of state
ethics rules constitute ‘civil enforcement proceedings’” under
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013));
Mir v. Shah, 2012 WL 3229308, at *3 (S.D.N.Y. Aug. 8, 2012)
(concluding that Younger applied to ongoing disciplinary
proceedings initiated against a physician by the Department of
Health and the BPMC). The doctrine “rests foursquare on the
notion that, in the ordinary course, a state proceeding provides
an adequate forum for the vindication of federal constitutional
rights,” and thus, “giving the respect to our co-equal
sovereigns that principles of ‘Our Federalism’ demand,” federal
courts are generally prohibited from intervening in such
matters. Diamond “D”, 282 F.3d at 198 (quotation marks omitted).
“[W]hen Younger applies, abstention is mandatory and its
application deprives the federal court of jurisdiction in the
matter.” Id. at 197 (citing Colorado Water Conserv. Dist. v.
United States, 424 U.S. 800, 816 n.22 (1976)).
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In Sprint, the Supreme Court explained that abstention
under Younger applies only in three “exceptional circumstances:”
“(1) pending state criminal proceedings; (2) civil enforcement
proceedings that are ‘akin to criminal prosecutions’; and (3)
civil proceedings that ‘implicate a State’s interest in
enforcing the orders and judgments of its courts.’” Schorr v.
DoPico, --- F. App’x ---, at *1 (quoting Sprint, 134 S. Ct. at
588, 591). Prior to Sprint, the Court of Appeals had applied a
three-factor test to determine whether the court should abstain
under Younger, namely, whether “(1) there is an ongoing
proceeding; (2) an important state interest is implicated in
that proceeding; and (3) the state proceeding affords the
federal plaintiff an adequate opportunity for judicial review of
the federal constitutional claims.” Diamond “D”, 282 F.3d at
198. In Sprint, the Supreme Court made it clear that these
factors were additional considerations to be taken into account
before invoking Younger. Sprint, 134 S. Ct. at 593.
In this case, it is plain that the medical disciplinary
proceeding, like the attorney disciplinary proceeding in Schorr,
is a “civil enforcement proceeding” subject to Younger
abstention, and that the three additional considerations in
Diamond “D” are satisfied in this case. Indeed, the parties do
not dispute that the proceedings against Dr. Cameron constitute
state-initiated “civil enforcement proceedings” subject to
14

Younger. Sprint, 134 S. Ct. at 591. Nor do they dispute that the
state proceeding affords the plaintiff the opportunity for
judicial review of his federal constitutional claims.
Rather, Dr. Cameron relies exclusively on the “bad faith”
exception to the Younger abstention doctrine. “Despite the
strong policy in favor of abstention, a federal court may
nevertheless intervene in a state proceeding upon a showing of
‘bad faith, harassment or any other unusual circumstance that
would call for equitable relief.’” Diamond “D”, 282 F.3d at 198
(quoting Younger, 401 U.S. at 54). The plaintiff bears the
burden of establishing the “bad faith” exception, and must “show
that the state proceeding was initiated with and is animated by
a retaliatory, harassing, or other illegitimate motive.” Id. at
198, 199. This means that a “state proceeding that is legitimate
in its purposes, but unconstitutional in its execution –- even
when the violations of constitutional rights are egregious –will not warrant the application of the bad faith exception.”
Id. at 199. “[T]he subjective motivation of the state authority
in bringing the proceeding is [therefore] critical to, if not
determinative of,” the bad faith inquiry. Id. Dr. Cameron must
therefore establish that the defendants have “no reasonable
expectation of obtaining a favorable outcome” in the
disciplinary proceeding, but rather “brought the proceeding with
a retaliatory, harassing, or other illegitimate motive.” Jackson
15

Hewitt Tax Serv., Inc. v. Kirkland, 455 F. App’x 16, 18 (2d Cir.
2012) (summary order) (quotation marks omitted).
The plaintiff has not met this burden. He alleges that the
disciplinary proceedings against him were initiated “simply
because [he] offer[s] medical services based upon” the ILADS
guidelines and that the proceedings are motivated by the
defendants’ desire to “stamp out ILADS based Lyme disease
medical services.” Cameron Aff. ¶ 7; Cameron Reply Aff. ¶ 25.
Those allegations are conclusory and are not supported by the
evidence. At the outset, the plaintiff spends considerable
effort arguing that a bad faith prosecution is a violation of
his constitutional due process rights. See Mem. in Supp. of Mot.
pp. 4-6. He also argues that bringing disciplinary proceedings
against him for the sole purpose of eliminating the practice of
medicine according to the ILADS guidelines violates New York
Public Health Law § 230(9-b), which states:
Neither the [BPMC] nor the [OPMC] shall charge a licensee
with misconduct . . . where such report is determined to be
based solely upon the recommendation or provision of a
treatment modality to a particular patient by such licensee
that is not universally accepted by the medical profession,
including but not limited to, varying modalities used in
the treatment of Lyme disease and other tick-borne
diseases.
N.Y. Pub. H. L. § 230(9-b)(emphasis added). The provision also
states that “[t]he licensee shall otherwise abide by all other
applicable professional requirements.” Id. But the plaintiff has

16

failed to establish that the Statement of Charges at issue are
in fact being brought against him “solely” because he provides
treatment according to ILADS guidelines.
Rather, the Statement of Charges accuses Dr. Cameron of
deviating from minimally accepted standards of care that apply
to all doctors and that apply regardless of whether the patient
at issue is being treated for Lyme disease in accordance with
ILADS guidelines or not. For example, Dr. Cameron is alleged to
have continued to provide narcotics to a patient who had a
diagnosis of bipolar disorder/personality disorder and narcotics
abuse from July 2003 through 2005 even though the patient had
moved to Florida. Compl. Ex. A p. 2. In another case, the
Statement of Charges allege that, over the course of ten years,
the plaintiff treated a patient with an “ongoing and escalating
antibiotic regimen” although the patient received only one
physical examination during those ten years. Id. pp. 2-4. The
charges accuse the plaintiff of failures such as the failure to
take and note an adequate history, failure to perform an
appropriate physical examination, prescription of medication
without appropriate medical indications, failure to follow up
when the patient experienced adverse reactions to the
administered therapy, and failure to maintain adequate records.
Id. pp. 3-4.

17

This is only a sampling of the charges. But it is clear
that the charges are based on allegations of professional
misconduct and not the use of the ILADS modality. Indeed,
although the plaintiff alleges that the charges are actually an
effort to discipline him for practicing pursuant to the ILADS
guidelines, the plaintiff conceded at the hearing that the ILADS
guidelines do not allow or advise the conduct alleged in the
Statement of Charges.
In response, the plaintiff alleges that the wording of the
Statement of Charges is intended to obfuscate the true nature of
the proceedings, and “deliberately omits any reference to the
actual subject matter which was authorized for prosecution,”
which the plaintiff argues was “the elimination of Lyme disease
medical services provided by ILADS standards.” Mem. in Supp. of
Mot. p. 15. The plaintiff argues further that the letters sent
to him by the OPMC in the course of the investigation confirm
that the true nature of the allegations is “restricted to
Plaintiff’s offering and applying Lyme disease medical services
to [patients] by ILADS standards and not by IDSA guidelines.”
Id.
The letters themselves belie the plaintiff’s argument and
do not support a finding of bad faith. They simply outline the
patients involved in the investigation and offer a brief summary
of the “issues under investigation,” which include general
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descriptions such as “[t]he care you rendered to [Patient A].
Specifically, the appropriateness of the care and treatment you
rendered to [Patient A] in July 2008 for Lyme disease and
complaints of neck pain.” Cameron Aff. Ex 2; see Cameron Aff. Ex
3. The fact that the investigation involved the care and
treatment provided by Dr. Cameron to patients diagnosed with
Lyme disease does not suggest that the proceedings were
initiated for the purpose of “stamp[ing] out” ILADS-based
medical services. Cameron Reply Aff. ¶ 25. Indeed, the fact that
the patients at issue were treated for Lyme disease is
unsurprising in light of the fact that Dr. Cameron’s practice
consists primarily of patients seeking treatment for Lyme
disease.
In his Complaint the plaintiff pointed to the publication
of an article in January 2017 by three authors who are members
of the IDSA that was critical of some practices endorsed by the
ILADS guidelines. Compl. ¶¶ 62-63. The Complaint also pointed
out that Dr. Meyers is a member of the IDSA and attempted to
link that fact and the publication of the article to the
Statement of Charges dated April 27, 2017. See id. The Complaint
characterizes the article as a “call to arms” that “called on
medical Boards to prosecute physicians” who provide ILADS-based
medical services. Id. ¶¶ 62, 64. However, there is no evidence
that the article had anything to do with the Statement of
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Charges, which were the product of an investigation that had
been ongoing for years. Nor is there any evidence that Dr.
Meyers had anything to do with the article, which does not, in
any event, call for the prosecution of physicians who follow the
ILADS guidelines. See Compl. Ex. E. In fact, Dr. Meyers’
involvement in the investigation of Dr. Cameron appears to have
been completed about six years before the article was published.
There is no evidence linking the article to any of the decision
makers involved in the disciplinary proceedings against Dr.
Cameron.
There is nothing in the Statement of Charges, or anywhere
else in the record, to suggest that the charges were initiated
for any reason other than that the Investigation Committee and
the Director of OPMC agreed that their investigation had
revealed deviations from the minimally accepted standards of
medical care. The plaintiff’s conclusory allegations that the
proceedings were initiated solely for the purpose of “stamp[ing]
out” ILADS-based treatment is also inconsistent with the
plaintiff’s failure to identify a single doctor, other than
himself, who follows the ILADS guidelines and who has been
subjected to disciplinary proceedings. Indeed, the Bureau
maintains that –- although on average hundreds of disciplinary
actions have been initiated each year –- only three such actions
initiated since the year 2000 have involved the treatment of a
20

patient diagnosed with Lyme disease. Nemerson Aff. ¶ 16. In
light of those statistics and the lack of evidence that the
disciplinary proceedings were initiated solely for the purpose
of eliminating the practice of ILADS-based treatment of Lyme
disease, the plaintiff’s allegation that the proceedings were
brought in bad faith is not credible. See Jackson Hewitt, 455 F.
App’x at 19 (rejecting the argument that the New York State
Division of Human Rights’ decision to bring an administrative
action against Jackson Hewitt was “nothing more than a thinlyveiled attempt to eliminate a legal loan product that the
Division dislikes”); Mir, 2012 WL 3229308, at *3 (rejecting
physician’s conclusory allegations that the BPMC pursued a
“phony investigation” against him); Diamond “D”, 282 F.3d at 199
(noting that the prosecution at issue “was not retaliatory or
otherwise illegitimate in its motivation and, in fact, was
nothing more than a straightforward enforcement of the laws of
New York”).
Moreover, Dr. Cameron has not even attempted to establish
that the defendants have “no reasonable expectation of obtaining
a favorable outcome” at the Hearing as required to establish bad
faith. Diamond “D”, 282 F.3d at 199; see Schorr, --- F. App’x at
---, *2 (rejecting argument of an attorney that disciplinary
proceedings had been brought in bad faith because the plaintiff
“cannot show that the committee would be unlikely to succeed in
21

proving its charges”). In sum, the plaintiff has not established
that the proceeding against him was “initiated with” and is
“animated by retaliatory, harassing, or other illegitimate
motive,” and therefore has not met his burden to establish an
exception to Younger abstention. Diamond “D”, 282 F.3d at 199.
The Court is therefore required to abstain from federal
intervention in the state enforcement proceedings.
B.
In addition to the requirement that this Court abstain
pursuant to Younger, the preliminary injunction must also be
denied because the plaintiff has failed to meet the requirements
for a preliminary injunction.
“A showing of irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction.”
Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d
Cir. 2009) (quotation marks omitted). The plaintiff argues that
his showing of a bad faith prosecution for purposes of Younger
abstention also satisfies the requirement of showing irreparable
injury for the purposes of obtaining a preliminary injunction.
However, the plaintiff has failed to establish that the
proceeding was initiated in bad faith. Moreover, the plaintiff
has failed to point to any binding authority suggesting that
merely being forced to withstand administrative charges of
wrongdoing constitutes irreparable injury. No charges have yet
22

been sustained against the plaintiff; the plaintiff has suffered
no limitations on his ability to practice medicine; and his
license has not been suspended or revoked. Because there is “no
legally cognizable injury to be suffered solely from being
subjected to the disciplinary hearing with the possibility of a
subsequent finding of professional misconduct,” Galin v.
Chassin, 629 N.Y.S.2d 247, 249 (App. Div. 1995), and because the
plaintiff has not identified any other injury he will suffer
“that is neither remote nor speculative, but actual and
imminent,” Wabtec, 559 F.3d at 118 (quotation marks omitted),
the plaintiff has failed to make the essential showing that he
will suffer irreparable harm in the absence of a preliminary
injunction.
For the reasons explained above, the plaintiff has also
failed to carry his burden to show that he is likely to succeed
on his claim that the proceeding against him was brought in bad
faith in violation of his constitutional rights. And the
plaintiff has made no effort to show that he is likely to
succeed on his antitrust claims.
Finally, the public interest weighs strongly against
issuing a preliminary injunction in this case. The state’s Board
of Professional Medical Conduct –- which has a clear interest in
protecting the health of the citizens of New York by regulating
the practice of medicine –- has issued charges against Dr.
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Cameron. See Selkin v. State Bd. for Prof’l Med. Conduct, 63 F.
Supp. 2d 397, 402 (S.D.N.Y. 1999). Those charges will be
adjudicated at the Hearing, and, if sustained, are subject to
both administrative and judicial review. Dr. Cameron remains
free to make the arguments made to this Court –- including that
the interviews conducted were biased and inadequate, that the
Charges were issued in violation of Public Health Law § 230(9b), and that the Hearing itself will not adequately protect his
due process rights –- to the Hearing Committee directly, to the
ARB on administrative appeal, and to a state court in an Article
78 proceeding. On the other hand, enjoining the proceeding would
prevent charges of serious misconduct from being adjudicated.
The public interest therefore plainly favors denial of the
preliminary injunction and adjudication of the charges before
the Hearing Committee. See Selkin, 63 F. Supp. 2d at 402-405.
CONCLUSION
The foregoing constitutes the Court’s Finding of Fact and
Conclusions of Law. The Court has considered all of the
arguments of the parties. To the extent not specifically
addressed, the arguments are either moot or without merit.

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For the reasons explained above, the plaintiff’s motion for
a preliminary injunction is denied. The Clerk is directed to
close all pending motions.
SO ORDERED.
Dated:

New York, New York
June 6, 2017

__/s/_________________________
John G. Koeltl
United States District Judge

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