| Matter of Fodera v Daines |
| 2011 NY Slip Op 05375 [85 AD3d 1452] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Maria Elena Fodera, Petitioner, v Richard F.Daines, as Commissioner of Health, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Raymond J. Foley of counsel), forrespondent.
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 Board forProfessional Medical Conduct which, among other things, suspended petitioner's license topractice medicine in New York for two years.
Petitioner, a vascular surgeon licensed to practice medicine in New York, was charged in2008 by the Bureau of Professional Medical Conduct (hereinafter BPMC) with 17 specificationsof professional misconduct in violation of various subdivisions of Education Law § 6530.The charges concerned petitioner's medical treatment of patient A, as well as petitioner'sincorrect answers or nondisclosures on applications for appointment and reappointment to themedical staff at two New York City area hospitals and on a registration renewal licenseapplication with the Education Department. The nondisclosures concerned adverse action takenby Staten Island University Hospital (hereinafter SIUH) regarding petitioner's medical privilegesat that hospital. Following hearings held between June 2008 and January 2009, at whichpetitioner testified and both parties called witnesses and introduced documentary evidence, aHearing Committee of the State Board for Professional Medical Conduct dismissed all charges,finding none had been proven. However, the Committee sustained certain factual allegations inthe statement of charges related to petitioner's failure to disclose the adverse action taken by[*2]SIUH regarding her privileges, finding that these allegationswere accurate statements of fact.
At BPMC's request, the Administrative Review Board of Professional Medical Conduct(hereinafter ARB) reviewed the Committee's determination and affirmed the dismissal of allcharges related to the fraudulent practice of medicine and to patient A. However, the ARBoverturned the Committee's determination on two specifications of charges, which the ARB nowsustained, finding that petitioner had committed professional misconduct as defined in EducationLaw § 6530 (21) by willfully filing false reports on her applications for privileges at twohospitals: St. Vincent Catholic Medical Centers-Staten Island Division (hereinafter St. Vincent's)and Victory Memorial Hospital (hereinafter Victory Memorial). The ARB determined thatpetitioner had knowingly failed to inform these hospitals, in her applications for privilegesthereat, of ongoing or pending proceedings to suspend her privileges at SIUH. The ARBconcluded that the Committee's dismissal of these two charges was inconsistent with theCommittee's factual findings demonstrating that petitioner knew that there were such ongoingproceedings at SIUH when she filed her inaccurate applications. The ARB suspended petitioner'slicense to practice medicine for two years, but stayed the suspension and placed petitioner onprobation for five years, under specified terms. Petitioner commenced this CPLR article 78proceeding seeking to vacate and annul the ARB's determination.
Our review of the ARB's determination overturning the Committee's decision on two chargesis limited to whether it was affected by an error of law, arbitrary and capricious or an abuse ofdiscretion (see Matter of Arnett v NewYork State Dept. of Health, 69 AD3d 1001, 1002 [2010], lv denied 14 NY3d707 [2010]), i.e., it will not be disturbed if it is supported by record facts and has a rational basis(see Matter of Sidoti v State Bd. forProfessional Med. Conduct, 55 AD3d 1162, 1164 [2008]). The Committee made thefollowing findings of fact, as relevant to this proceeding, which the ARB adopted and petitionerdoes not contest. Petitioner had surgical privileges at SIUH, whose Executive Committee ofMedical and Dental staff recommended not renewing in 2002 for various reasons; as SIUH nevertook action on that recommendation or abided petitioner's request for a hearing to which she wasentitled, petitioner's privileges to admit patients and perform surgery continued at that time,undiminished. Consequently, the ARB affirmed the dismissal of all charges related to thatrecommendation.
However, in February 2004, SIUH sent petitioner notice that it had summarily suspended herprivileges for violating restrictions on her clinical privileges. In response, petitioner hired anattorney and formally requested a hearing on that suspension, which was effective immediately.At the initial hearing on that suspension on February 26, 2004—followingnegotiations—it was agreed on the record that the suspension would be held in abeyanceduring the hearings and appeal process, i.e., until a final determination, in exchange for petitionernot exercising any of her privileges at SIUH (e.g., admissions, consult, surgery, etc.). Anunderstanding was placed on the record that holding the suspension in abeyance on that day (the22nd day of her suspension) would obviate petitioner's obligation to report it to the NationalPractitioner Data Bank, a duty not triggered until a suspension has been in effect for 30 days. InMarch 2005, the SIUH Executive Committee notified petitioner that it had unanimously upheldher summary suspension and advised her of her right to appeal to the SIUH Board of Trustees,which right she exercised by letter dated April 5, 2005.
At the heart of the two instant professional misconduct charges upheld by the ARB arepetitioner's answers on hospital applications that she subsequently submitted. In May 2005, shesubmitted an application for reappointment to the medical staff at St. Vincent's, answering "no"[*3]to the question "[have] your medical staff appointment orclinical privileges ever been terminated, revoked, suspended, refused, reduced,limited or not renewed in any other hospital or health care institution or is such actionpending?" (Emphases added.) She also left blank the attached section where "full details"were requested if the question were answered affirmatively. Thereafter, SIUH advised St.Vincent's by letter that petitioner's request for appellate review of the SIUH ExecutiveCommittee's decision upholding the summary suspension had not yet occurred and, thus, theagreement (holding the suspension in abeyance in exchange for not exercising privileges)remained in effect until those review procedures were concluded.
Then, in an application for appointment to the medical staff at Victory Memorial in March2006, petitioner omitted any reference to her affiliation with SIUH and responded "no" to aquestion inquiring whether her clinical privileges "have . . . ever been, or are. . . currently in the process of being denied, revoked, suspended,reduced, limited, placed on probation, not renewed, or voluntarily relinquished, limitedor reduced" (emphases added). Thereafter, in April 2006, the SIUH Board of Trustees notifiedpetitioner that her suspension had been upheld, a final determination for which there was nofurther right of intrahospital appeal.
Given the foregoing, the ARB's determination to overturn the Committee and sustain the twocharges of professional misconduct was fully supported in the record, had a rational basis andwas not improvident (see Matter of Arnett v New York State Dept. of Health, 69 AD3dat 1002). As the ARB concluded, the Committee's factual findings that, prior to submitting theapplications at issue, petitioner (1) was notified by SIUH of its summary suspension, (2)exercised her right to request a hearing thereon, (3) participated with counsel in a hearing atwhich an agreement was reached for the suspension to be held in abeyance in exchange for hervoluntary surrender of all privileges at SIUH until the ongoing process was completed and a finaldetermination on the suspension rendered, (4) received notice that the SIUH ExecutiveCommittee had upheld the suspension, and (5) exercised her right to a final appeal to the SIUHBoard of Trustees, together "demonstrated that [she] knew there were ongoing [SIUHsuspension] proceedings" when she filed those two applications. The sustained charges for"[w]illfully making or filing a false report" (Education Law § 6530 [21]) required "aknowing, intentional or deliberate act" (Matter of Brestin v Commissioner of Educ. of Stateof N.Y., 116 AD2d 357, 359 [1986] [interpreting 8 NYCRR 29.1 (b) (6), containing thesame phrase as Education Law § 6530 (21) and also applicable to physicians]), i.e., themaking or filing of a report with knowledge of its falsity (see e.g. Matter of Chime vDeBuono, 260 AD2d 733, 734 [1999]; Matter of Glassman v Commissioner of Dept. ofHealth of State of N.Y., 208 AD2d 1060, 1061 [1994], lv denied 85 NY2d 801[1995]).[FN*][*4]
The ARB was not required to credit or accept petitioner'sproffered explanations, excuses or denials regarding her actions, as she now suggests (seeMatter of Glassman v Commissioner of Dept. of Health of State of N.Y., 208 AD2d at1061). Rather, the ARB rationally determined that petitioner deliberately filed the relevantapplications, knowing of their falsity. This conclusion is particularly apt given that—at thetime the two applications for privileges were submitted falsely attesting that no disciplinaryaction was pending and no privileges were in the process of being suspended or had beenvoluntarily relinquished at any hospital—petitioner "was then actively participating inongoing disciplinary hearings" at SIUH (Matter of Ostad v New York State Dept. of Health, 40 AD3d 1251,1253 [2007]). As with other charges of professional misconduct, petitioner's "awareness of thetrue state of facts at the time [she] gave the false responses was sufficient to support the inferenceof guilty knowledge" (Matter of Saldanha v DeBuono, 256 AD2d 935, 936 [1998]) and"knowledge . . . may be inferred from the surrounding circumstances" (Matter of Ross v State Bd. for ProfessionalMed. Conduct, 45 AD3d 927, 929 [2007], lv denied 10 NY3d 701 [2008][internal quotation marks and citation omitted]).
While petitioner testified that she had consulted with counsel regarding how she shouldanswer questions on hospital applications regarding the SIUH suspension proceedings, sheadmitted that she had not specifically asked counsel how to answer the questions on these twoapplications (see Matter of Goldberg v Whalen, 273 AD2d 551, 554 [2000], lvdenied 95 NY2d 764 [2000]). Her testimony does not demonstrate that she was misled bycounsel or that counsel ever incorrectly advised her that the SIUH suspension proceedings werenot "pending" or that her SIUH privileges were not "in the process of being" suspended, reducedor limited, or had not been "voluntarily relinquished." Accordingly, her testimony and proof donot support the challenges now raised to the ARB's determination sustaining these charges.
Finally, we are mindful that "the making of false statements on applications for hospitalprivileges and to licensing boards has a direct bearing on the applicant's ability to practicemedicine" (Matter of Dolin v State Bd. for Professional Med. Conduct, 274 AD2d 862,865 [2000], lv denied 95 NY2d 770 [2000]). Upon review, we do not find that thepenalty of a stayed two-year suspension with probation is so disproportionate to the offense thatit shocks our sense of fairness (see Matter of Ross v State Bd. for Professional Med.Conduct, 45 AD3d at 930).
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Contrary to petitioner's claims,the ARB did not interpret or apply Education Law § 6530 (21) so as to impose strictliability for any filing containing a falsity, and clearly understood that willfulness requires adeliberate or intentional filing with knowledge that the filing contains a falsity. The higherstandard governing fraudulent practices—"intent to mislead or deceive" (Matter of Aptaker v Administrative ReviewBd. for Professional Med. Conduct, 60 AD3d 1160, 1163 [2009], lv denied 12NY3d 713 [2009]; see Matter of Ostad vNew York State Dept. of Health, 40 AD3d 1251, 1253 [2007]; see alsoEducation Law § 6530 [2])—is inapplicable here.