ADMINISTRATIVE REVIEW BOARD FOR PROFESSIONAL MEDICAL CONDUCT, DEPARTMENT OF
HEALTH, Respondent.
Supreme Court, Appellate Division, Third Department, New York
Decided and Entered: March 6, 2003 Decided and Entered: March 6, 200391068
Calendar Date: January 9, 2003
Before: Crew III, J.P., Peters, Rose, Lahtinen and Kane, JJ.
APPEARANCES OF COUNSEL
Abraham Solomon, Delray Beach, Florida, petitioner
pro se.
Eliot Spitzer, Attorney General, New York City (Roy
A. Esnard of counsel), for respondent.
MAJORITY OPINION
Rose, J.
Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c [5]) to review a determination
of respondent which revoked petitioner's license to practice medicine in New York.
Petitioner, an emergency room physician, was charged with numerous violations
of the Education Law stemming from his care and treatment of 10 patients. Following
a hearing, a Hearing Committee of the State Board for Professional Medical Conduct
sustained some of the charges of gross negligence and negligence *2
(Cite as: 2003 N.Y. Slip Op. 11763, *2)
on more than one occasion, as well as
the charges of fraud in petitioner's applications for privileges or employment
at three hospitals, and revoked his license to practice medicine. On appeal, respondent
affirmed most, but not all, of the Hearing Committee's findings as to guilt, sustained
additional charges of gross incompetence and incompetence on more than one occasion
and confirmed revocation of petitioner's license. Petitioner then commenced this
proceeding seeking to annul respondent's determination.
Since our inquiry is limited to ascertaining whether respondent's determination
is arbitrary and capricious, is affected by an error of law or constitutes an
abuse of discretion (seeMatter of Steckmeyer v State Bd. for Professional Med.
Conduct, 295 AD2d 815, 817; Matter of Pisnanont v New York State Bd. for Professional
Med. Conduct, 266 AD2d 592, 593), it will not be disturbed if it has a rational basis
and is factually supported (seeMatter of Moss v Chassin, 209 AD2d 889, 891,
lv denied 85 NY2d 805, cert denied 516 US 861). Applying that standard here, we conclude
that respondent's determination must be confirmed.
Based upon his review of the hospital records of the patients at issue, Gerard
Brogan Jr., a board-certified emergency room physician, testified in detail as
to petitioner's failure to obtain proper patient histories, performance of inadequate
physical examinations, failure to order appropriate laboratory tests, misdiagnoses
of life-threatening conditions that should have been readily recognized and administration
of inappropriate and contraindicated medications. Brogan further testified that,
under the circumstances presented, these omissions and erroneous treatments constituted
deviations from generally accepted medical practices. This testimony, together
with the opinions offered by two additional medical experts, Alveris Molina and
Daniel Murphy, and the relevant hospital records provide a rational basis for
sustaining the charges of practicing with gross negligence, negligence on more
than one occasion, incompetence and gross incompetence on more than one occasion.
To the extent that the testimonies of petitioner and his experts were to the contrary,
they raised a credibility issue for respondent to resolve and, in so doing, it
was free to credit the testimonies of Brogan, Molina and Murphy over those of
petitioner's experts (see generallyMatter of Chua v Chassin, 215 AD2d 953, 955,
lv denied 86 NY2d 708; Matter of Hachamovitch v State Bd. for Professional
Med. Conduct, 206 AD2d 637, 638, lv denied 84 NY2d 809). Thus, we *3
(Cite as: 2003 N.Y. Slip Op. 11763, *3)
cannot agree that respondent's determination
regarding petitioner's patient care is arbitrary, capricious or affected by an
error of law or that it constitutes an abuse of discretion (seeMatter of Katz v Novello, 292 AD2d 652, 655,
lv denied 98 NY2d 613).
We reach a similar conclusion as to the charges of fraudulent practice. Although
a determination that a physician is guilty of fraud requires proof of either an
intentional misrepresentation or concealment of a known fact (seeid.
at 654), the intent or knowledge element may be inferred from the surrounding
circumstances (seeMatter of Steckmeyer v State Bd. for Professional
Med. Conduct, supra at 817; Matter of Hachamovitch v State Bd. for
Professional Med. Conduct, supra at 638). Here, both the Hearing Committee
and respondent found that in applying for appointment or privileges at three hospitals,
petitioner knowingly withheld information regarding prior hospital employment
and the termination of his residency without credit, and the record is more than
adequate to support such findings.
Petitioner's remaining contentions, including his unsupported allegations that
the participation of Brogan and Hedva Shamir, a medical coordinator for the Office of Professional Medical Conduct,
in the proceedings before the Hearing Committee was tainted by conflicts of interest
(seeMatter of Siddiqui v New York State Dept. of Health, 228 AD3d
735, 737, lv denied 89 NY2d 804), and his assertion that revocation of
his license to practice medicine is so disproportionate to his acts of professional
misconduct as to shock this Court's sense of fairness (seeMatter of Larkins v De Buono, 257 AD2d 714, 716),
have been examined and found to be lacking in merit. Accordingly, respondent's
determination is in all respects confirmed.
Crew III, J.P., Peters, Lahtinen and Kane, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
N.Y.A.D. 3 Dept. 2003.
Matter of Solomon v Administrative Review
Bd. for Professional Med. Conduct, Dept. of Health
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