(dissenting).
By this CPLR article 78 proceeding, petitioner, a psychiatrist, challenges an order of the Commissioner of Health of the State of New York reversing the ruling of the Administrative Officer at a hearing of the New York Board for Professional Medical Conduct which struck the testimony of the complaining witnesses, petitioner’s former patients, who, in accordance with explicit statutory provisions prohibiting disclosure of such information, refused to disclose whether they had ever complained to the Board about petitioner’s treatment of them. We agree with the court from which this appeal is taken that the Commissioner acted within his statutory authority when he reversed the Administrative Officer’s ruling and remanded the matter for completion of the hearing.
The Board, an agency of the New York State Department of Health consisting of no less than 18 physicians and 7 lay members and created pursuant to Public Health Law § 230, is charged with the investigation, on its own or upon receipt of a complaint, of suspected professional misconduct and the conduct of disciplinary proceedings. The reports of its investigation are referred to the Director of the Office of Professional Medical Conduct (OPMC), who, after consultation with a professional member of the Board, determines whether a hearing is warranted. If one is, formal charges are filed.
*33On April 18, 1985, OPMC served petitioner with a notice of hearing and statement of charges accusing him of professional misconduct in that he sexually abused four female patients during the course of treating them, revealed personally identifiable information obtained in a professional capacity without the patient’s prior consent and abandoned a patient in need of immediate professional care without making reasonable arrangements for the continuation of such care. Finally, petitioner was charged with failing to retain patient records for at least six years and with engaging in conduct which evidenced moral unfitness to practice the profession of medicine.
A disciplinary hearing was held before a committee of the Board, consisting of four physicians and one lay member, as required by Public Health Law § 230 (6). An attorney designated by the Commissioner served as Administrative Officer, without the right to vote but with authority to "rule on all motions, procedures and other legal objections and [to] draft the conclusions of the hearing committee”. (Public Health Law § 230 [10] [e].) Testimony was taken over the course of five days during which four of petitioner’s former patients testified that he had sexually abused them. During cross-examination, petitioner’s counsel asked each of these former patients whether she had complained to the Board about petitioner’s treatment and, if so, the substance and timing of the complaint. Counsel for OPMC objected on the ground that Public Health Law § 230 (11) (a)* prohibited disclosure of any information regarding complaints made to the Board. In response, petitioner’s counsel argued that subdivision (11) (a) was never intended to protect the confidentiality of statements made by patients who give testimony at a disciplinary hearing and that to extend the protection of the statute to those statements would eviscerate his right of cross-examination and constitute a denial of due process. The Administrative Officer agreed, ruling that petitioner’s counsel was entitled to inquire as to whether the witnesses had made complaints to *34the Board, and if they had, to the production of any such complaints which were in writing. The matter was adjourned one month to allow OPMC’s counsel to comply with the ruling or to seek judicial relief therefrom.
When, on the adjourned date, OPMC’s counsel refused to produce the requested documents and persisted in instructing the witnesses not to answer any questions regarding complaints made to the Board, the Administrative Officer struck the testimony of the four witnesses and instructed the committee to disregard the stricken testimony. As a result, the committee was unable to render a final determination of the charges, and turned to the Commissioner for direction, stating:
"It is the conclusion of the Hearing Committee that based on the ruling of the Administrative Law Judge that [sic] the Panel cannot render a final determination at this time because the testimony of the four Petitioner’s witnesses was not admissible for consideration * * *
"In view of the foregoing, it is the recommendation of the Hearing Panel that the Commissioner take whatever legal steps are necessary to permit this Panel to make a full determination on the merits of the charges against the Respondent physician.”
The Commissioner reversed the Administrative Officer’s ruling, ordered the committee to reconvene, and remanded the matter for completion of the hearing, stating: "Public Health Law § 230 (11) (a) mandates that complaints to the Board shall remain confidential. There is no explicit or implicit exception to that mandate for confidentiality. The purpose of the confidentiality mandate was to encourage reports of misconduct. That purpose is not served by requiring disclosure directly or penalizing the petitioner for failure to disclose by dismissing charges.” This proceeding followed. In dismissing the petition, the court, in addition to holding that the Commissioner acted within his statutory authority, also found that since the disciplinary hearing had not yet been completed, review of petitioner’s claim that he had been denied his constitutional right of confrontation was premature (132 Misc 2d 980).
The law is well settled that a party must exhaust his administrative remedies before seeking judicial review. (Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375; Matter of Wesser v State of New York, Dept. of Health, 94 AD2d 681, affd 60 NY2d 785; Anonymous v Axel*35rod, 92 AD2d 789; Matter of Whalen v Slocum, 84 AD2d 956; Matter of Sardino v Finch, 35 AD2d 686.) "The doctrine of exhaustion of administrative remedies requires 'litigants to address their complaints initially to administrative tribunals, rather than to the courts, and * * * to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts’ ”. (Young Men’s Christian Assn. v Rochester Pure Waters Dist., supra, at p 375, quoting 2 Cooper, State Administrative Law, at 561.)
After the Administrative Officer struck the testimony of the four complaining witnesses, the hearing committee requested that the Commissioner take whatever steps were necessary so that it could reach a determination on the merits. However one interprets this request, it is clear that the Committee was not accepting the Administrative Officer’s ruling as final. The Commissioner, who is mandated by Public Health Law § 230 (10) (i) to "consider the transcript, exhibits and other evidence, if any, the findings, conclusions and recommendation of the committee and [to] make his recommendation as to the committee’s findings, conclusions and recommendation” to the Board of Regents for a final decision and order, responded by instructing the committee on an evidentiary matter, and remanding the case for completion of the hearing. Thus, a final determination of the charges has yet to be reached. Petitioner has merely been precluded from examining the four witnesses as to any prior complaints to the Board. His counsel may still cross-examine those witnesses on any other matter.
In such circumstances, petitioner should not, by this premature proceeding, be permitted to abort the adjudicatory process and thereby prevent the responsible licensing authority from proceeding pursuant to its statutory mandate under Education Law § 6510-a. (See, Matter of Rainka v Whalen, 73 AD2d 731, affd 51 NY2d 973; Matter of Wesser v State of New York, Dept. of Health, 94 AD2d 681, supra; Matter of State Bd. of Professional Med. Conduct v Schlesinger, 84 AD2d 879.) He is in no danger of losing his right to practice unless the Board of Regents issues an order revoking his license. The committee should be allowed to proceed on the merits and make "findings, conclusions and recommendation” which would, pursuant to Public Health Law § 230 (10) (i), be submitted to the Commissioner for his review and recommendation to the Board of Regents. Should the committee recommend the revocation of petitioner’s license, he would be afforded the administrative review to which he is entitled under the applicable *36law and regulations. Any final adverse determination is, of course, subject to judicial review. (Education Law § 6510-a [4].)
In any event, the Commissioner acted within the scope of his statutory authority in reversing the Administrative Officer's ruling and remanding the matter for completion of the hearing. Public Health Law article 2 (§ 200 et seq.) vests broad power in the Department of Health and the Commissioner to supervise and regulate all aspects of public health and to enforce the Public Health Law. While the statute is silent as to the Commissioner’s role in a situation where, as here, the committee is unable to render a final determination and turns to him for direction, as the person authorized to protect the public health and enforce the statutes, the Commissioner acted appropriately in the circumstances. He cannot be bound by the evidentiary rulings of his designee, the Administrative Officer, especially on a matter with broad policy implications. Public Health Law § 230 (10) (e), which authorizes the appointment of an attorney as an Administrative Officer at disciplinary hearings and enumerates his powers, is not a limitation on the Commissioner’s authority but, rather, the mechanism by which that authority is delegated to his appointee. Since the Commissioner had the power to "make his recommendation as to the committee’s findings, conclusions and recommendation” (§ 230 [10] [i]), he could have disregarded the ruling and considered the stricken testimony in arriving at his own recommendation, had the committee followed the Administrative Officer’s ruling and dismissed the charges.
Nor can we conclude that the Commissioner acted improperly in upholding the confidentiality provisions of the Public Health Law with respect to complaints of professional misconduct made to the Board. In conferring confidentiality on such complaints, Public Health Law § 230 (11) (a) does not provide any exception to its proscription against their admission in evidence in any administrative or judicial proceeding. Petitioner’s claim of waiver of confidentiality relies primarily on the general principle that an accused in a criminal prosecution has a constitutional right to confront witnesses against him through cross-examination. Petitioner’s reliance is misplaced, however, since the procedures in an administrative proceeding are less formal than in a criminal prosecution. (See, Matter of Brown v Lavine, 37 NY2d 317; Matter of Cole v New York State Dept. of Educ., 94 AD2d 904, 905, lv denied 60 NY2d 556.) By express statutory provision (Public Health Law *37§ 230 [10] [f]), the committee is not bound by the rules of evidence, and its conclusion need be based only on a preponderance of the evidence.
Even in a criminal prosecution, however, with its stricter standard of due process and higher burden of proof, confidential matters are excluded from the requirement that a witness’ prior statements be made available to the defendant, if relevant to the subject matter of the witness’ testimony. (People v Rosario, 9 NY2d 286, cert denied 368 US 866.) Moreover, it should be noted, the Commissioner’s order did not foreclose cross-examination of the complaining witnesses, but only restricted its scope by proscribing inquiry into any complaints made to the Board. Questioning with respect to complaints made to any other institution, agency, or person was permitted as well as cross-examination on all other relevant issues. In fact, cross-examination was quite extensive, encompassing over 400 pages of the hearing transcript. Thus, from all that appears, petitioner had ample opportunity to cross-examine the complaining witnesses as to the crucial issue of whether he engaged in sexual misconduct with them.
The Court of Appeals was recently confronted with a similar statutory confidentiality provision in Matter of Grattan v People (65 NY2d 243). The question there was whether the statutory confidentiality with respect to information regarding sexually transmissible diseases was defeated simply by the consent of the source, the disease sufferer, to the release of the information. The Department of Health moved to quash a Grand Jury subpoena seeking the information on the basis of Public Health Law § 2306, which provides: "All reports or information secured by a board of health or health officer under the provisions of this article shall be confidential except in so far as is necessary to carry out the purposes of this article.” The People argued that the information was relevant on the issue of whether a crime had been committed and, further, that it was needed to refresh the victim’s recollection. The court balanced the victim’s right to her own records against society’s interest in preventing the spread of disease and quashed the subpoena, finding:
"The requirement of confidentiality (Public Health Law § 2306) is integral to a statutory scheme designed to encourage afflicted persons to seek and secure treatment, which in the case of communicable disease serves individual interests as well as those of society * * *
*38"[T]he assurance of secrecy offered by the Board of Health not only encourages an individual disease sufferer to come forward for treatment but also fosters a public perception that necessarily results in a greater willingness of others to cooperate. We therefore conclude that, in view of the public interest that the program have the appearance of inviolable trust, an individual’s consent to release of records will not in every case be sufficient to override the statutory confidentiality” (supra, at pp 245-246).
The rationale underlying the strict adherence to the statutory confidentiality in Grattan (supra) should apply with equal if not greater force in a medical misconduct proceeding, where the State’s interest in rooting out professional misconduct is at least as significant as it is in the area of combating the spread of communicable disease. Disclosure of complaints to the Board would be detrimental to the enforcement of the Public Health Law and inimical to the public interest. Revealing a complainant’s identity has the potential to discourage others, both patients and professional personnel, from contacting and cooperating with the Board when they have valuable information about a physician’s professional misconduct. (See, Matter of Levin v Guest, 112 AD2d 830, affd 67 NY2d 629, cert denied — US —, 106 S Ct 2894.) In enacting section 230 (11) (a), the Legislature confronted this problem and determined that the benefits to society in encouraging complaints of professional misconduct through the grant of confidentiality and the exclusion of any such complaints from evidence in any administrative or judicial proceeding outweighed other considerations. (See, Matter of John P. v Whalen, 54 NY2d 89, 97.)
Given the strong public policy considerations underlying the confidentiality provisions of the Public Health Law and the circumstances in which the issue is presented, we cannot conclude that the Commissioner’s determination to uphold the confidentiality of any complaints made to the Board was irrational, even though the complainants had come forward and testified in petitioner’s presence. Petitioner’s claim of deprivation of due process can be ássessed only in the context of a full and complete record and after a final adverse determination has been reached on the merits.
Accordingly, the judgment (denominated an order) dismissing the petition should be affirmed.
Kassal and Rosenberger, JJ., concur with Fein, J.; Sandler, J. P., and Sullivan, J., dissent in an opinion by Sullivan, J.
*39Judgment (denominated an order), Supreme Court, New York County, entered on June 30, 1986, reversed, on the law, respondent’s determination overruling the Administrative Law Officer annulled, and the matter remanded to respondent for a determination either to direct the limited disclosure called for by the Administrative Law Officer, or to dismiss the charges against petitioner, without costs and without disbursements. So much of the order as granted the sealing of this file and permitted petitioner to proceed anonymously is affirmed, without costs and without disbursements.
In pertinent part, Public Health Law § 230 (11) (a) provides: "The medical society of the state of New York * * * shall, and any other person may, report to the board any information which such person, medical society, organization or institution has which reasonably appears to show that a physician is guilty of professional misconduct * * * Such reports shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding except that the board, its staff, or the members of its committees may begin investigations on the basis of such reports and may use them to develop further information.”