| Matter of Arnett v New York State Dept. of Health |
| 2010 NY Slip Op 00035 [69 AD3d 1001] |
| January 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jan Muney Arnett, Petitioner, v New York StateDepartment of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (James M. Hershler of counsel), forrespondents.
Spain, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of the Administrative Review Boardfor Professional Medical Conduct which revoked petitioner's license to practice medicine in NewYork.
Petitioner, an ophthalmologist licensed to practice medicine in New York since 1978, wascharged in 2006 with 33 specifications of professional misconduct in violation of Education Law§ 6530, including fraudulent practice, false reporting, failure to maintain records,incompetence on more than one occasion, unwarranted treatment and moral unfitness to practicemedicine (see Education Law § 6530 [2], [5], [20], [21], [32], [35]). The chargesrelated to his treatment in 2004 of four patients (hereinafter patients A through D), as well asknowing and false representations—that he had performed surgeries which he knew hehad not performed—in the operative reports of 57 additional patients. Following a hearingat which testimony was given by patients A through D, five medical experts and petitioner, aHearing Committee of respondent State Board for Professional Medical Conduct sustained 24 ofthe 33 charges in their entirety and [*2]sustained six others inpart, and revoked petitioner's license to practice medicine in this state.[FN1]On administrative cross appeals, the Administrative Review Board for Professional MedicalConduct (hereinafter ARB) modified by overturning the Hearing Committee's determination tothe extent that it had sustained—as alternative findings—five factual allegationsregarding patients A, B and C. Additionally, the ARB dismissed two specifications ofmisconduct that had been withdrawn at the hearing but were mistakenly sustained by the HearingCommittee. The ARB rejected petitioner's remaining claims and, concluding that the evidencethat the Hearing Committee found to be reliable supported the remainder of the chargessustained by the Hearing Committee, the ARB sustained those remaining charges and affirmedthe penalty of license revocation. Petitioner commenced this CPLR article 78 proceeding in thisCourt seeking review of the ARB's determination.
"Given that the Hearing Committee's determination was reviewed by the ARB. . . , our review is limited to ascertaining whether [the ARB's determination] wasarbitrary and capricious, affected by error of law or an abuse of discretion" (Matter of Sidoti v State Bd. forProfessional Med. Conduct, 55 AD3d 1162, 1164 [2008] [internal quotation marks andcitations omitted]), and "[t]he ARB's determination 'will not be disturbed if it has a rational basisand is factually supported' " (id., quoting Matter of Solomon v AdministrativeReview Bd. for Professional Med. Conduct, Dept. of Health, 303 AD2d 788, 789 [2003],lv denied 100 NY2d 505 [2003]). Petitioner challenges the ARB's determination asarbitrary and capricious with respect to its disposition of factual allegations in the statement ofcharges regarding patients A, B and C that were alleged in the alternative, which the HearingCommittee sustained. Specifically, as relevant here, petitioner was charged with misconduct forperforming a particular retinal surgery (vitrectomies with epiretinal membrane stripping) withoutmedical indication (patients A and C) and without adequate fiber-optic illumination of thesurgical field (patients A, B and C);[FN2]he was also charged in the alternative with knowingly and falsely representing to thepatients' insurance companies that he had performed this retina surgery when, in fact, he knew hehad not, with intent to deceive (patients A, B and C). The Hearing Committee sustained all of theforegoing factual specifications, finding that (1) petitioner did not perform those retinal surgeriesthat he billed for and recorded in the patients' operative reports, rejecting petitioner's testimonyto the contrary, and then it held, in the alternative, that (2) even assuming he had performedthose retinal surgeries, he had done so without adequate medical indication (patients A and C)and without adequate fiber optic illumination, as required by the industry standard for thisprocedure according to all of the expert testimony (patients A, B and C).
On administrative appeal, the ARB sustained the Hearing Committee's findings thatpetitioner had not performed the retinal surgeries on patients A, B and C. In doing so, "[t]heARB deferred to the Hearing Committee's credibility findings[,] . . . and thatdetermination will not be disturbed by this Court" (Matter of Insler v State Bd. for Professional Med. Conduct, 38 AD3d1095, 1098 [2007]). The ARB's conclusion was factually supported by proof in the record[*3]showing that these procedures were not medically needed bytwo of these patients, that petitioner never sent excised tissue samples for evaluation by thepathology department as required, and that it was highly doubtful—if notimpossible—that the surgery could have been successfully completed without fiber opticillumation (as petitioner testified it had been) and within the operating times recorded. Theevidence as a whole supported the ARB's rational inference that petitioner knowingly made falsemisrepresentations, with the intent to deceive, in the patients' operative reports and when billingtheir health insurance companies (seeMatter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d 927, 929 [2007],lv denied 10 NY3d 701 [2008]).
We see no reason to disturb the ARB's conclusion that the Hearing Committee erred in alsomaking negligence findings related to these surgeries in the alternative, i.e., the ARB held that"[o]nce the [Hearing] Committee determined that [petitioner] did not perform [the retinalsurgeries] on [patients A, B and C], the [Hearing] Committee should have dismissed the[a]llegations concerning performing the procedures without proper indication or properillumination." Notably, "the ARB was empowered to substitute its judgment for that of theHearing Committee in . . . determining guilt" (Matter of Bottros vDeBuono, 256 AD2d 1034, 1036 [1998]). We find no abuse of discretion or error of law inthe foregoing disposition. While the ARB, at the urging of respondent Department of Health, hasrationally opted to allow alternate charging but not alternate findings, we seenothing unfair, inconsistent or contradictory in the rationale or result here (see Pardo v Novello, 2 AD3d 991,992 [2003] [Hearing Committee did not err in making conclusions in the disjunctive "and/or"];Matter of Orens v Novello, 307 AD2d 392, 392 [2003], appeal dismissed 100NY2d 614 [2003]).
Likewise without merit is petitioner's claim that the burden of proof was shifted to him.Initially, petitioner's challenge to the Hearing Committee's determination is misplaced, as hesought review from the ARB, and our review in this special proceeding is limited to the ARB'sdetermination (see Matter of Conteh vDaines, 52 AD3d 994, 995 [2008]; Matter of Orens v Novello, 307 AD2d at393). In any event, the ARB's decision makes clear that the burden of proving the charges by apreponderance of the evidence rested on the State Board for Professional Medical Conduct(see Public Health Law § 230 [10] [f]). The ARB rejected petitioner's burdenshifting claims, noting that the Hearing Committee's comments at issue were made in the contextof reviewing the evidence against petitioner that he did not perform the retinal surgeries onpatients A, B and C and its reasons for rejecting his testimony as not credible. We discern noerror.
Finally, we cannot agree that the penalty of revocation affirmed by the ARB "is sodisproportionate in light of the offense[s] that it shocks one's sense of fairness" (Matter of Maglione v New York StateDept. of Health, 9 AD3d 522, 525 [2004] [citation omitted]; accord Matter of Sidotiv State Bd. for Professional Med. Conduct, 55 AD3d at 1166-1167). In rejecting petitioner'srequest for a reduced penalty of requiring a practice monitor and record review, the ARB agreedthat this would provide inadequate protection given petitioner's history of refusing to followsupervision—for example, by failing to follow the rule requiring that excised tissue beforwarded to the pathology department despite repeated directives by the hospital medicaldirector and by failing to inform hospital administration that he had for years performedsurgeries without fiber optic illumination. Contrary to petitioner's claim, the ARB's reliance onthose general factors regarding petitioner's medical practice—which are supported by theevidence, including petitioner's own testimony—was not inconsistent with its dismissal ofthe alternate charges (that petitioner had performed certain surgeries negligently).[*4]
The ARB's determination that license revocation was theonly adequate penalty also rested on its conclusion that petitioner had "demonstrated a pattern ofdeception in his entries in medical records and insurance billings," and that it saw "no reasonwhy [he] would abandon that pattern with a practice monitor . . . [or] to believe thatany form of retraining would teach [him] integrity," and that his "repeated fraudulent conductdemonstrates his unfitness to practice medicine." These findings are virtually unassailable giventhe documentary and testimonial evidence adduced at the hearing, credited by the ARB, ofpetitioner's wide-scale fraudulent practices and misrepresentations, deviations from medicallyaccepted standards, performance of other surgery—not challenged herein—withoutadequate medical indication, repeated billing for surgeries not performed and falsification ofmedical records. We perceive no basis upon which to disturb the ARB's penalty determination(see Matter of Sidoti v State Bd. for Professional Med. Conduct, 55 AD3d at 1167).
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote 1: None of the charges forpracticing with incompetence were sustained.
Footnote 2: Relatedly, petitioner was alsocharged with, and found guilty of, filing false operative reports indicating that he had employedthe required illumination and had performed the surgeries when he had not.