| Matter of Ross v State Bd. for Professional Med. Conduct |
| 2007 NY Slip Op 08146 [45 AD3d 927] |
| November 1, 2007 |
| Appellate Division, Third Department |
| In the Matter of Hank Ross, Petitioner, v State Board forProfessional Medical Conduct, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Ellen J. Fried of counsel), forrespondent.
Crew III, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c [5]) to review a determination of the Administrative ReviewBoard for Professional Medical Conduct which revoked petitioner's license to practice medicinein New York.
Petitioner, an orthopedic surgeon, was charged by respondent in an original and amendedstatement of charges with 26 specifications of misconduct in violation of various subdivisions ofEducation Law § 6530. Specifically, petitioner was charged with fraudulent practice,willfully filing false reports, violating Public Health Law § 2805-k and engaging inconduct evidencing moral unfitness to practice medicine. The charges stemmed from informationthat petitioner provided on, among other documents, applications for privileges at certainhospitals. After hearing testimony from the relevant witnesses and reviewing the documentaryevidence, a three-member Hearing Committee sustained all of the charges except thosepertaining to moral unfitness and, as to penalty, suspended petitioner's license for one year, [*2]imposed a two-year period of probation, required petitioner tocomplete 20 hours of continuing medical education and directed that, during the probationaryperiod, any renewal, appointment or insurance applications be submitted to the Director of theOffice of Professional Medical Conduct.
Petitioner and the Bureau of Professional Medical Conduct each sought review of theHearing Committee's decision by the Administrative Review Board for Professional MedicalConduct (hereinafter ARB). Upon review, the ARB affirmed the Hearing Committee's findingsand, further, sustained the charge of moral unfitness and modified the penalty by revokingpetitioner's license to practice medicine. Petitioner thereafter commenced this proceedingpursuant to CPLR article 78 seeking to annul the ARB's determination and unsuccessfully soughta stay of the ARB's order pending our review.
It is undisputed that petitioner submitted applications to various entities that containedinaccurate information regarding, most significantly, his disciplinary background. What theparties now dispute is the net effect of those inaccuracies, with petitioner contending that theseinadvertent and inconsequential errors were innocently committed by his mother, who filled outthe original applications that formed the template for the ones that followed, and thereafter wereperpetuated by his office manager, and the Bureau arguing that petitioner's repeated submissionof numerous applications over a 15-year period—even after some of the more glaringinaccuracies were called to his attention—demonstrates a pattern of fraudulent andintentional misconduct. To resolve this dispute, we must consider the nature of themisinformation provided.
In this regard, the record reflects, among other things, that during his residency at theHospital for Joint Diseases, petitioner was suspended from his duties as a fourth-year orthopedicresident for a period of five weeks (December 26, 1988 through February 1, 1989)—a factthat petitioner failed to disclose on his April 11, 1989 application for privileges at thathospital.[FN*]
Similarly, petitioner was served with a statement of charges in February 1988 stemming froman incident that occurred during his residency at Kings County Hospital Center in December1986. Ultimately, a censure and reprimand was imposed, and this Court upheld thatdetermination in November 1990. Nonetheless, petitioner failed to disclose such informationand/or the resulting malpractice action on, among other things, his March 1989 application forprivileges at Winthrop University Hospital, his April 1989 application for appointment at theHospital for Joint Diseases or his May 1989 application for privileges at Booth MemorialMedical Center. Despite the fact that petitioner plainly was aware of the significance of theseomissions, as evidenced by his then [*3]attorney's letter to adepartment chair at Winthrop University Hospital in November 1989, as well as letters ofadmonishment received from that hospital in December 1989 and from Mercy Hospital in May1990 and a letter he authored attempting to explain his conduct to representatives of BoothMemorial Medical Center in January 1990, such omissions continued in subsequent applications.Nor did petitioner disclose that he had been the subject of an investigation by the Office ofProfessional Medical Conduct in 2002 or that he had been subject to focus review at one of thehospitals at which he had privileges.
As noted previously, petitioner contends that these were inadvertent errors initiallycommitted by his mother and subsequently perpetuated by his office manager, the latter of whomsimply copied the information provided on prior applications. While reluctantly acknowledgingthat he ultimately is responsible for such misinformation, petitioner argues that the record isbereft of any evidence of intent to mislead the various hospitals and related entities at issue and,more to the point, asserts that he cannot be held responsible for failing to disclose information ofwhich many of the institutions already were aware. We are not so persuaded.
The case law makes clear that fraudulent practice requires "proof of either an intentionalmisrepresentation or concealment of a known fact, [and] the intent or knowledge element may beinferred from the surrounding circumstances" (Matter of Steckmeyer v State Bd. forProfessional Med. Conduct, 295 AD2d 815, 817 [2002]; see Matter of Ostad v New York State Dept. of Health, 40 AD3d1251, 1253 [2007]). Even accepting that the initial errors were entirely innocent, we agreewith the Hearing Committee and the ARB that petitioner's perpetuation of that misinformation onsubsequent applications—after clearly being notified of such errors and their resultingmagnitude—and his utter failure to undertake any effort whatsoever to correct such errorsand/or ensure that they were not repeated evidences a willful intent to mislead and deceive therelevant entities. For that reason, we see no reason to disturb the ARB's determination as to thecharges of fraudulent practice and willfully filing a false report.
We reach a similar conclusion regarding the charge of moral unfitness. To be sure,petitioner's conduct here did not implicate patient care. However, even the Hearing Committeecharacterized petitioner's conduct as "unprofessional, irresponsible, intentional, and deliberate"and found that he "lack[ed] the ethical or legal understanding of his responsibility as a physicianto the honor of the profession," noting that petitioner had been "warned a number of times butrefused to heed." Although the Hearing Committee found insufficient proof to sustain thischarge, the ARB was free to substitute its judgment and, in so doing, found that petitioner's"repeated, deliberate false representations" violated the public trust and demonstrated an overalllack of integrity. Again, we are unable to discern any basis for disturbing the ARB's findings onthis point.
As to the issue of penalty, we cannot say, based upon our review of the record as a whole,that the penalty of revocation is so disproportionate to the underlying offenses as to be shockingto one's sense of fairness (see Matter ofBraick v New York State Dept. of Health, 13 AD3d 740, 742 [2004]). The fact thatpatient care was not implicated does not preclude revocation of petitioner's license (see Matter of Zharov v New York StateDept. of Health, 4 AD3d 580 [2004])—particularly where, as here, the ARBfound that the lack of integrity [*4]evidenced by petitioner over aperiod of years could not be remedied by imposing a lesser sanction, i.e., a probationary periodand a few hours of continuing education. Petitioner's remaining contentions, including hisassertion that the charge that he violated Public Health Law § 2805-k was impermissiblyvague, have been examined and found to be lacking in merit.
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: Although petitioner claims tohave either not completed, not reviewed or not signed the various applications at issue, aspetitioner plainly is responsible for the accuracy of the information contained therein, we willtreat any errors or omissions as petitioner's. To that end, on the application in question, thequestion read, "During your residency were you ever suspended, placed upon probation, formallyreprimanded, asked to resign?", to which petitioner responded, "No."