| Matter of Rattray v Novello |
| 2007 NY Slip Op 09632 [46 AD3d 953] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Heron G. Rattray et al., Petitioners, v Antonia C.Novello, as Commissioner of Health of State of New York, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Raymond J. Foley of counsel), forrespondents.
Mercure, 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, among other things, revoked petitioner's licenseto practice medicine in New York.
Petitioner Heron G. Rattray was a licensed physician in New York and has been the soleshareholder of petitioner Rochdale Medical, P.C. since 1996. After he failed to respond to arequest by the Office of Professional Medical Conduct (hereinafter OPMC) for certain records,an investigator set up an appointment with his office to view the documents. While inspectingthe records, the investigator scanned them into his laptop.
Thereafter, OPMC alleged that petitioners committed professional misconduct in a statementof charges containing 28 specifications. Following a hearing, a Hearing Committee of respondentState Board for Professional Medical Conduct sustained 26 specifications charging fraudulentpractice, willfully making or filing false reports, practicing with negligence on more [*2]than one occasion, failing to maintain records reflecting evaluationand treatment, failing to report a discontinuation of privileges to hospitals and failing to complywith federal law concerning billing practices. The Hearing Committee further revoked Rattray'slicense and Rochdale Medical's certificate of incorporation. Upon petitioners' appeal, theAdministrative Review Board for Professional Medical Conduct (hereinafter ARB) affirmed theHearing Committee's determination and, upon its own motion, fined Rattray an additional$10,000 for repeated fraudulent conduct. This CPLR article 78 proceeding challenging thedetermination ensued.
We confirm. Inasmuch as they did not raise the issue before the Hearing Committee and theARB, petitioners failed to preserve their claim that OPMC exceeded its authority in scanningpatient records without petitioners' permission (see Matter of Prado v Novello, 301 AD2d692, 692-693 [2003]). "Judicial review of administrative determinations pursuant to CPLRarticle 78 is limited to questions of law [and] [u]npreserved issues are not issues of law"(Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001] [citationsomitted]; see Matter of Prado v Novello, 301 AD2d at 693). Our review of that claim istherefore foreclosed. With respect to petitioners' assertion that they were deprived of a fairhearing due to the ineffective assistance of counsel, we note that the right to effective assistanceof counsel does not extend to administrative proceedings except in certain narrowly definedcircumstances that are not present here (see Matter of Bazin v Novello, 301 AD2d 975,976 [2003]; Matter of Siddiqui v New York State Dept. of Health, 228 AD2d 735, 736[1996], lv denied 89 NY2d 804 [1996]; cf. Matter of Axelrod v Ambach, 126AD2d 288, 290-291 [1987]). Finally, given the pervasiveness and extent of the fraudulentpractice herein, we cannot say that the revocation of Rattray's license to practice medicine is " 'soincommensurate with the offense as to shock one's sense of fairness' " (Matter of Catsoulis v New York State Dept.of Health, 2 AD3d 920, 922 [2003] [citation omitted]; see Matter of Solomon vAdministrative Review Bd. for Professional Med. Conduct, Dept. of Health, 303 AD2d 788,790 [2003], lv denied 100 NY2d 505 [2003]).
Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.