| Matter of Sidoti v State Bd. for Professional Med. Conduct |
| 2008 NY Slip Op 08213 [55 AD3d 1162] |
| October 30, 2008 |
| Appellate Division, Third Department |
| In the Matter of Louis A. Sidoti, Petitioner, v State Board forProfessional Medical Conduct et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Kathryn E. Leone of counsel), forrespondents.
Spain, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of respondent Administrative Review Boardfor Professional Medical Conduct which revoked petitioner's license to practice medicine in NewYork.
Petitioner has been authorized to practice medicine in New York since 1991. In 2006, the Bureauof Professional Medical Conduct (hereinafter BPMC) charged petitioner with 19[FN1]specifications of professional misconduct arising out of his treatment of seven patients (hereinafterpatients A through G) in the emergency rooms of Albany Memorial Hospital, Albany Medical [*2]Center and St. Peter's Hospital between 2001 and 2004. In particular,petitioner was charged with violations of Education Law § 6530, including practicing medicinewith gross negligence (see Education Law § 6530 [4]), practicing with negligence onmore than one occasion (see Education Law § 6530 [3]), practicing with grossincompetence (see Education Law § 6530 [6]), and practicing medicine withincompetence on more than one occasion (see Education Law § 6530 [5]) as to patientsA, B, C, D, E, F and G. He was also charged with failing to maintain accurate medical records as topatients E, F and G (see Education Law § 6530 [32]).
Following a fact-finding hearing conducted by a Hearing Committee of respondent State Board forProfessional Medical Conduct, petitioner was found guilty of each charge of negligence on more thanone occasion, gross negligence, and failure to maintain accurate medical records, except for thosearising out of his care of patient C. The Hearing Committee further sustained charges against petitionerfor gross incompetence and incompetence on more than one occasion relating to his care of patient B,and his medical license was thereafter revoked. Petitioner subsequently filed an appeal with respondentAdministrative Review Board for Professional Medical Conduct (hereinafter ARB), which ultimatelyconfirmed the Hearing Committee's findings of professional misconduct and the determination to revokepetitioner's license. Petitioner then commenced the instant CPLR article 78 proceeding in this Court,pursuant to Public Health Law § 230-c, seeking to vacate the determinations of the HearingCommittee and the ARB on the grounds that the revocation of his license to practice medicine violateddue process, the findings were arbitrary and capricious and unsupported on the record, and the penaltyitself was unduly harsh and excessive.
Given that the "Hearing Committee's determination was reviewed by the ARB . . . ,our review is 'limited to ascertaining whether [the ARB's determination] was arbitrary and capricious,affected by error of law or an abuse of discretion' " (Matter of Insler v State Bd. for Professional Med. Conduct, 38 AD3d1095, 1097 [2007], quoting Matter of Bottros v DeBuono, 256 AD2d 1034, 1035-1036[1998]). The ARB's determination "will not be disturbed if it has a rational basis and is factuallysupported" by the record (Matter of Solomon v Administrative Review Bd. for Professional Med.Conduct, Dept. of Health, 303 AD2d 788, 789 [2003], lv denied 100 NY2d 505 [2003];see Matter of Conteh v Daines, 52AD3d 994, 995-996 [2008]). Petitioner challenges both the findings of misconduct and thepenalty imposed as lacking a rational basis of record facts.
Turning first to the findings of misconduct based on negligence in connection with petitioner'streatment of patients A, B, D, E, F and G, we concur with the ARB that such findings are amplysupported by the record evidence. Testimony from patient E, the father of patient G, and from anemergency room physician and a nurse who worked with petitioner and observed his treatment ofpatient F provided evidence that petitioner did not conduct physical examinations of those patients,although he indicated that such examinations were conducted in their charts. Further, physician JosephBraverman, based upon his review of the hospital records of patients A, B, D, E, F and G, thetestimony of patient B's father, and the testimony of the other fact witnesses, confirmed petitioner'sfailure to obtain sufficient patient histories, failure to perform adequate physical examinations, failure toorder appropriate diagnostic and laboratory tests, prescription of inappropriate treatments, andmisdiagnoses of life-threatening conditions. In the case of each patient, Braverman testified that, underthe circumstances presented, these omissions and erroneous treatments constituted deviations fromgenerally accepted standards of medical [*3]practice.[FN2]This expert testimony, combined with the testimony of the fact witnesses and relevant hospital records,provide a rational basis to sustain the findings involving practicing with negligence (see Matter ofConteh v Daines, 52 AD3d at 995-996; Matter of Ticzon v New York State Dept. ofHealth, 305 AD2d 816, 819 [2003]; Matter of Lewis v DeBuono, 257 AD2d 787,788-789 [1999]). The contrary testimony of petitioner and his expert raised credibility determinationsfor the Hearing Committee and, ultimately, the ARB to resolve (see Matter of Solomon vAdministrative Review Bd. for Professional Med. Conduct, Dept. of Health, 303 AD2d at 789;Matter of Saunders v Administrative Review Bd. for Professional Med. Conduct, 265 AD2d695, 696 [1999]).
Next, we conclude that the charges against petitioner for gross incompetence and incompetence onmore than one occasion relating to his care of patient B were also properly sustained. Patient B, a15-month-old child, was taken to the emergency department of St. Peter's Hospital by his parents atthe instruction of the child's pediatrician who had requested that blood work be completed due to arash on the child's hands and neck. Although petitioner noted on the child's chart that the rash wasconsistent with a blood-related abnormality, he did not order blood work. Petitioner instead diagnosedthe child with an ear infection and ordered antibiotics to be administered by injection. The injectionbled, which, according to expert testimony, is consistent with a patient who has a low platelet count.Nevertheless, petitioner released the child. The next day, at the instruction of the child's pediatrician, thechild was rushed to another hospital where blood work indicated that the child's platelet count wasdangerously low. In Braverman's opinion, petitioner's failure to order a blood count and other testsprior to discharge, which could have led to the child's death or other serious harm, fell belowacceptable standards of care. Given this evidence, we have no basis upon which to disturb any of theARB's findings against petitioner with respect to patient B (see Matter of Ostad v New York State Dept. of Health, 40 AD3d1251, 1252 [2007]; Matter of Solomon v Administrative Review Bd. for Professional Med.Conduct, Dept. of Health, 303 AD2d at 789).
Likewise, we conclude that the ARB properly sustained the charges that petitioner failed tomaintain accurate medical records as to patients E, F and G. As indicated, testimony from factwitnesses established that petitioner failed to conduct physical examinations of those patients, althoughhe indicated that such examinations where conducted in their charts (see [*4]Matter of Ostad v New York State Dept. of Health, 40 AD3d at1252; Matter of Insler v State Bd. for Professional Med. Conduct, 38 AD3d at 1098-1099).
We turn next to petitioner's contention that he was penalized for uncharged misconduct and therebywas deprived of due process, asserting that the Hearing Committee improperly relied upon his alleged,but uncharged, fabrication of patient records in formulating his penalty. In reviewing this claim, the ARBacknowledged its power to substitute its judgment for that of the Hearing Committee in deciding upon apenalty (see Matter of Bogdan v New York State Bd. for Professional Med. Conduct, 195AD2d 86, 90 [1993], appeal dismissed and lv denied 83 NY2d 901 [1994]), but neverthelessconcluded that the charges properly sustained against petitioner by the Hearing Committee supportedits determination to revoke his license. Indeed, the ARB did not sustain the imposed penalty basedupon any uncharged conduct. Although the Hearing Committee in its decision stated at one point thatpetitioner "falsified records," the ARB, while acknowledging that a penalty can only be imposed basedon charged conduct, specifically found that the penalty imposed was justified by the conduct charged,and sustained, by the Hearing Committee (cf. Matter of Dhabuwala v State Bd. for ProfessionalMed. Conduct, 225 AD2d 209, 213 [1996]). Indeed, the penalty was based on petitioner'srepeated failure to provide adequate care to his patients, despite evidence that he often knew what carewas necessary, evincing an indifference or lack of insight to the consequences of his actions. The ARBappropriately found that "[t]he lack of insight means that [petitioner] remains at risk to repeat hismisconduct."
Finally, we disagree with petitioner that the penalty affirmed by the ARB cannot be sustained. "[A]penalty imposed by the ARB will be modified or annulled only when 'the punishment is sodisproportionate in light of the offense that it shocks one's sense of fairness' " (Matter of Maglione v New York State Dept. ofHealth, 9 AD3d 522, 525 [2004], quoting Matter of Brigham v DeBuono, 228AD2d 870, 874 [1996], lv denied 89 NY2d 801 [1996]). The ARB considered other penaltyoptions, but concluded "that no lesser penalty will provide adequate protection for patients."Specifically, the ARB concurred with the Hearing Committee's findings that continual supervision wouldbe impractical and monitoring through record would not be effective in that, in some cases, petitioner'spatient records did not reveal the inadequacies in the actual care provided. Likewise, petitioner'sassertion that he could safely practice medicine outside the emergency room setting, such as in hisdermatology practice, is undermined by the record evidence of his gross negligence and incompetenceand, specifically, his failure to appropriately diagnose patient B's rash as an indicator of a seriouscondition (see Matter of Braick v New YorkState Dept. of Health, 13 AD3d 740, 742-743 [2004]). Accordingly, we will not disturb theARB's conclusion that petitioner's demonstrated lack of insight or remorse, coupled with his persistentfailure to conform to accepted medical standards of care, justify revocation of his license to practicemedicine (see Matter of Orens v Novello, 307 AD2d 392, 393 [2003], appealdismissed 100 NY2d 614 [2003]; Matter of Ticzon v New York State Dept. of Health,305 AD2d at 819; Matter of Brigham v DeBuono, 228 AD2d at 874-875; Matter ofGandianco v Sobol, 171 AD2d 965, 967 [1991]; cf. Matter of Bottros v DeBuono, 256AD2d at 1036).
We have considered petitioner's remaining contentions and find them without merit.
Lahtinen, Kane, Malone Jr. and Stein, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.
Footnote 1: Although petitioner was initiallycharged with 13 specifications of professional misconduct, at the close of its proof at a later fact-findinghearing, the BPMC amended the charges to add additional specifications.
Footnote 2: Although Braverman's testimonyprovided compelling evidence that petitioner's actions and his failure to act constituted severe deviationsfrom accepted standards of care for each of these patients, the facts surrounding the charges related topatient A are most telling of the grave consequences of petitioner's conduct. According to the record,patient A presented in the emergency room at Albany Memorial Hospital with severe back pain andvomiting, a history of hypertension, breast cancer and a previous heart attack. Without taking a moredetailed history or ordering diagnostic tests, both of which Braverman testified would have beennecessary to meet accepted standards of care to rule out a more serious condition, petitioner treatedpatient A for a lumbar strain and spasm and discharged her. Within two hours, patient A died ofcardiac arrest.