| Matter of Aptaker v Administrative Review Bd. for Professional Med.Conduct |
| 2009 NY Slip Op 01737 [60 AD3d 1160] |
| March 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Lisa Aptaker, Petitioner, v Administrative ReviewBoard for Professional Medical Conduct, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Kathryn E. Leone of counsel), forrespondent.
Kane, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of respondent which revokedpetitioner's license to practice medicine in New York.
Petitioner was licensed to practice medicine in New York in 1999 and concentrated herpractice in obstetrics and gynecology. From October 2000 to August 2002, petitioner held afaculty position at Columbia University and was appointed to the medical staff as an attendingphysician at the affiliated Harlem Hospital. Petitioner resigned her position at Harlem Hospitaland began working at Long Island College Hospital (hereinafter LICH) in September 2002. InAugust 2003, petitioner resigned her position at LICH in order to take a position with theUniversity of Miami in Florida. In connection therewith, petitioner applied for a Florida medicallicense in June 2003. In conjunction with her application, petitioner was required to submit topsychological and psychiatric evaluations, which she underwent in September 2003.
In December 2003, petitioner received a notice of intent to deny her Florida licenseapplication for, among other reasons, misrepresentations made during the licensing process andthe inability to practice medicine with reasonable skill and safety due to a mental condition.[*2]Having lost the job opportunity at the University of Miami,petitioner submitted personnel data sheets to the United States Army in April 2004 and again inNovember 2004 seeking a commission, which she received in early January 2005.
Meanwhile, in December 2004, the Bureau of Professional Medical Conduct (hereinafterBPMC) informed petitioner that a proceeding would be held to determine whether she may beimpaired by reason of a mental disability. After a hearing, a Hearing Committee issued a January2005 order finding reason to believe that petitioner may be impaired and directing petitioner tosubmit to a psychiatric examination no later than February 18, 2005. Petitioner entered the Armyshortly thereafter and has never submitted to the examination.
In March 2005, the Army commenced an investigation of petitioner for having allegedlysubmitted false statements on her entrance applications. After a hearing, petitioner was found tohave knowingly made false statements and was discharged in June 2005. Thereafter, BPMC sentpetitioner a letter informing her that the January 2005 order was still in effect and warningpetitioner that her failure to comply would constitute professional misconduct.
In September 2005, petitioner was informed that her Florida medical license had been deniedbased upon findings that she had knowingly misrepresented and concealed material factsregarding the adverse circumstances surrounding her resignation from Harlem Hospital. Later inSeptember 2005, petitioner received a letter from BPMC seeking to schedule an interviewregarding various issues, including her failure to comply with the January 2005 order, the denialof her Florida license application and certain representations she had made on her Armyapplications. When petitioner failed to respond to BPMC's letter, the matter was referred to aninvestigative committee, after which charges were filed and later amended in March 2006. Thecharges included three specifications of fraudulent practice, one specification of failure tocomply with an order and one specification of having an application for a medical licenserefused.
After a series of hearings before a Hearing Committee of the State Board for ProfessionalMedical Conduct, the Committee issued a determination and order in August 2006. TheCommittee sustained three of the charges against petitioner, based upon her failure to complywith the January 2005 order and the charges relating to petitioner's Army applications, but didnot sustain the two charges arising from her application for a medical license in Florida. As aresult, the Committee suspended petitioner's license for six years, including a four-year outrightsuspension, followed by a two-year stayed suspension, during which petitioner would be placedon general probation and required to submit to a psychiatric evaluation. Both petitioner andBPMC appealed to respondent. While respondent affirmed the Committee's determination, itlimited its findings of professional misconduct to petitioner's failure to comply with the January2005 order and her deliberate misrepresentation in her response to the Army's questionsconcerning the Florida board's inquiries into her health and impairment status. Regarding thepenalty, respondent overturned the Committee's suspension and revoked petitioner's license. ThisCPLR article 78 proceeding ensued, and we now confirm.
As a threshold matter we note that, where, as here, petitioner has sought review fromrespondent, this Court's inquiry is limited to whether the determination was " 'arbitrary andcapricious, affected by error of law or an abuse of discretion' " (Matter of Sundaram v Novello, 53AD3d 804, 807 [2008], lv denied 11 NY3d 708 [2008], quoting Matter of Insler v State Bd. forProfessional Med. Conduct, 38 AD3d 1095, 1097 [2007]; see Matter of Buckner v State Bd. forProfessional Med. Conduct, 7 AD3d 840, 841 [2004]).[*3]
Initially, we reject petitioner's contention that respondenterred in upholding the determination that she committed professional misconduct by failing tocomply with the January 2005 order to undergo a psychiatric evaluation. Pursuant to PublicHealth Law § 230 (7) (a), the State Board for Professional Medical Conduct has theauthority to direct a licensee to submit to a psychiatric examination when it has reason to believethat he or she may be impaired by a mental disability, and failure to comply with such orderconstitutes an instance of professional misconduct (see Education Law § 6530[15]; see also Matter of Moran v Chassin, 225 AD2d 814, 815 [1996], lv denied88 NY2d 807 [1996]). Here, the Committee issued an order in January 2005 directing petitionerto undergo a psychiatric examination with which petitioner admittedly did not comply.Therefore, we find a rational basis for respondent's determination that petitioner committedprofessional misconduct by failing to comply with the order (see Matter of Ostad v NewYork State Dept. of Health, 309 AD2d 989, 991 [2003]; Matter of Daniels vNovello, 306 AD2d 644, 644-645 [2003], lv denied 100 NY2d 514 [2003]). To theextent that petitioner now argues that it was unnecessary for her to comply with the orderbecause it was improperly issued, premised upon a March 2006 order by Supreme Court (Mills,J.) in New York County barring certain charges against petitioner based upon interviews held in2003, we note that our review of this issue is foreclosed because petitioner failed to preserve itby raising it before the Committee and respondent (see Matter of Khan v New York StateDept. of Health, 96 NY2d 879, 880 [2001]; Matter of Rattray v Novello, 46 AD3d 953, 954 [2007]; Matterof Prado v Novello, 301 AD2d 692, 692-693 [2003]).
Petitioner next challenges respondent's determination that she engaged in the fraudulentpractice of medicine by knowingly making false statements with the intent to mislead or deceiveon her April 2004 and November 2004 applications for the Army. A charge of professionalmisconduct by way of fraudulent practice may be sustained when a physician submits anapplication that contains an intentional misrepresentation or the concealment of a known fact,and intent or knowledge may be inferred from the surrounding circumstances (seeEducation Law § 6530 [2]; Matter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d927, 929 [2007], lv denied 10 NY3d 701 [2008]; Matter of Solomon vAdministrative Review Bd. for Professional Med. Conduct, Dept. of Health, 303 AD2d 788,789-790 [2003], lv denied 100 NY2d 505 [2003]; Matter of Corines v State Bd. forProfessional Med. Conduct, 267 AD2d 796, 799-800 [1999], lv denied 95 NY2d 756[2000]). We find ample evidence to support respondent's finding that petitioner falsely answeredquestions on her April 2004 and November 2004 Army personnel data sheets. On thoseapplications, petitioner answered "no" to a question that asked whether she had ever "beenrequired to appear before a medical or state regulating authority, regardless of the result,concerning [her] health status as an impaired, hindered, or otherwise restricted practitioner." Inaddition, on her November 2004 security clearance application, petitioner answered "no" to thequestion, "In the last 7 years, have you consulted a mental health professional (psychiatrist,psychologist, counselor, etc.)." These answers stood in direct contravention to the fact thatpetitioner had been required to submit to psychological and psychiatric evaluations by theFlorida Department of Health in conjunction with her license application in September 2003.Thus, deferring to respondent on issues of credibility (see Matter of Insler v State Bd. forProfessional Med. Conduct, 38 AD3d at 1097; Matter of Tulier-Pastewski v State Bd. for Professional Med. Conduct,13 AD3d 918, 919 [2004]), we find the record amply supports respondent's finding ofprofessional misconduct based upon those intentional misrepresentations on petitioner's Armyapplications.
The penalty imposed by respondent was not disproportionate to the offense. Respondent isempowered to impose a harsher penalty than the Committee, and such penalty will [*4]only be disturbed if it is "so disproportionate to the offense" that itis "shocking to one's sense of fairness" (Matter of Chen v Administrative Review Bd. of State Bd. for ProfessionalMed. Conduct, 3 AD3d 617, 617 [2004] [internal quotation marks and citation omitted];see Matter of Papiasvili v New York State Dept. of Health, 262 AD2d 814, 815 [1999],lv dismissed 94 NY2d 839 [1999]). Considering petitioner's failure to comply with theJanuary 2005 order and her intentional misrepresentations on the Army applications, along withrespondent's finding that petitioner lied in her testimony to the Committee, revocation of herlicense does not shock our sense of fairness (see Matter of Jadoo v DeBuono, 235 AD2d644, 645 [1997]; Matter of Glassman v Commissioner of Dept. of Health of State ofN.Y., 208 AD2d 1060, 1061-1062 [1994], lv denied 85 NY2d 801 [1995];Matter of Sung Ho Kim v Board of Regents of Univ. of State of N.Y., 172 AD2d 880,882 [1991], lv denied 78 NY2d 856 [1991]; cf. Matter of Zharov v New York State Dept. of Health, 4 AD3d580, 581 [2004]).
We have examined petitioner's remaining contentions, including that she was deprived of afair hearing, and found them to be without merit.
Cardona, P.J., Rose and Stein, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.