| Matter of Tsirelman v Daines |
| 2009 NY Slip Op 02694 [61 AD3d 1128] |
| April 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gary Tsirelman, Petitioner, v Richard F. Daines, asCommissioner of Health, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Raymond J. Foley of counsel), forrespondents.
Rose, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of respondent Hearing Committee ofthe State Board for Professional Medical Conduct which, among other things, revokedpetitioner's license to practice medicine in New York.
Respondent Hearing Committee of the State Board for Professional Medical Conductsustained 51 of 69 charges of professional misconduct against petitioner, a physician licensed topractice in New York, including fraudulent medical practice, willfully making or filing falsereports, ordering treatment not warranted by the patient's condition and moral unfitness. Thecharges were based primarily upon petitioner's submission of numerous bills to a no-faultautomobile insurer for invasive nerve destruction procedures (hereinafter NDPs) that wereneither medically necessary nor actually performed. Petitioner admitted that he had neverperformed NDPs, but blamed the charges on the billing service that had prepared the bills for hismedical clinic. He claimed that the billing service had misread his notes concerning the [*2]noninvasive "synaptic" procedure he had regularly performed,assigned an additional billing code for the much more expensive NDPs and then, without hisknowledge or authorization, used a stamp bearing his signature to certify those bills. TheCommittee found petitioner's explanation to be unbelievable, held him responsible for thecontent of his bills and concluded that he knew that all of the identical billings were false andthat he had submitted them to the no-fault insurer with the intent to deceive. As a result, theCommittee revoked petitioner's medical license and imposed a $100,000 fine. Petitioner thencommenced this CPLR article 78 proceeding to annul that determination.
Our review of such a decision is limited to assessing whether it is supported by substantialevidence (see Matter of Ostad v NewYork State Dept. of Health, 40 AD3d 1251, 1252 [2007]; Matter of Richstone vNovello, 284 AD2d 737, 737 [2001]; Matter of Slakter v DeBuono, 263 AD2d 695,697 [1999]). So long as the evidence meets that standard, we will defer to the credibilitydeterminations made by the Committee (see Matter of Forester v State Bd. for Professional Med. Conduct, 36AD3d 1127, 1128 [2007], lv denied 8 NY3d 812 [2007]; Matter of Slakter vDeBuono, 263 AD2d at 697).
The record confirms that petitioner, who has owned a number of clinics over the years,denied ever having or using a signature stamp, yet other evidence showed that his stamp wasregularly used to bill for his services. He also testified that, had he ever seen any of the bills forNDPs, he "would certainly not have authorized them." Yet, after he graduated from law schooland was admitted to the practice of law in New York, he transferred ownership of his clinic toanother physician and, acting as the attorney representing his former clinic in no-fault arbitrationproceedings, he sought to collect bills, similar to those at issue here, charging for NDPs andbearing his signature stamp. Further, petitioner initially denied any association with the clinicprior to purchasing it, yet he later conceded that he had previously worked for it for severalyears. Citing this and other evasive, fabricated and inconsistent testimony, the Committee foundthat petitioner's claims, including that the double billing amounted to no more than a mistake,completely lacked credibility.
Applying the standard that physicians are ultimately responsible for the accuracy of theirbills, and given the findings of petitioner's long-term relationship with the clinic and hiscomplete lack of credibility, the Committee could infer his knowledge that the bills were false,rather than merely inaccurate, and that he had willfully intended to mislead and deceive theinsurer (see Matter of Ross v State Bd.for Professional Med. Conduct, 45 AD3d 927, 929 [2007], lv denied 10 NY3d701 [2008]; Matter of Ostad v New York State Dept. of Health, 40 AD3d at 1253;Matter of Corines v State Bd. for Professional Med. Conduct, 267 AD2d 796, 799-800[1999], lv denied 95 NY2d 756 [2000]; Matter of Post v State of N.Y. Dept. ofHealth, 245 AD2d 985, 987 [1997]). Thus, the evidence presented and the inferencesreasonably flowing therefrom amply support the sustained charges of fraudulent medicalpractice, filing false reports and moral unfitness.
We also find no merit in petitioner's argument that he was denied his rights to a fair hearingand due process by the Committee's admission and consideration of patient records that wereuncertified and allegedly incomplete. Inasmuch as "the strict rules of evidence do not apply inadministrative proceedings" (Matter ofSundaram v Novello, 53 AD3d 804, 806 [2008], lv denied 11 NY3d 708 [2008][internal quotation marks and citation omitted]), petitioner was required to show that the lack ofcertification infected the entire proceeding with unfairness in order to establish a deprivation ofdue process (see id. at 806-807). This he did not do. As for [*3]the assertion that the records were incomplete, petitioner arguesthat the complete treatment records for his patients would have reflected that he never orderedNDPs or listed them as having been performed. We note, however, that the only documents inthe record which listed the NDPs were the bills. Thus, additional treatment records showing theirabsence would have been redundant and irrelevant to the issues of his knowledge and intent. Therecord also shows that, with one exception discussed below, the Committee did not sustain anycharge where additional patient records could have been exculpatory. The Committee fullyexplored the discrepancies in the records that were provided and gave petitioner everyopportunity to submit additional records (see Matter of Sundaram v Novello, 53 AD3d at807).
However, inasmuch as the bills are the only documents in the record that list the NDPs andthe Committee cites no evidence for its finding that petitioner indicated to anyone other than theno-fault insurer that NDPs were performed, the evidence does not support the Committee'sconclusion that petitioner ordered treatment not warranted by the patients' condition. Thus, wewill annul those charges. Nonetheless, because the Committee stated that petitioner's fraudulentpractice of medicine standing alone warranted the revocation of his license and the fine imposed,the exclusion of those charges does not require reconsideration of the discipline administeredhere (see Matter of Adler v Bureau of Professional Med. Conduct, State of N.Y., Dept. ofHealth, 211 AD2d 990, 993 [1995]). Viewing only the remaining sustained charges, we arenot able to say that the penalty imposed is so disproportionate to petitioner's fraudulent behaviorthat it shocks our sense of fairness (see Matter of Ross v State Bd. for Professional Med.Conduct, 45 AD3d at 930; Matter of Ostad v New York State Dept. of Health, 40AD3d at 1253 [2007]; Matter of Sookhuv Commissioner of Health of State of N.Y., 31 AD3d 1012, 1014-1015 [2006]).
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof specifications 59 to 68 of the charges, and, as so modified, confirmed.