| Matter of Diaz v State Bd. for Professional Med. Conduct |
| 2009 NY Slip Op 10005 [68 AD3d 1565] |
| December 31, 2009 |
| Appellate Division, Third Department |
| In the Matter of Diego A. Diaz, Petitioner, v State Board forProfessional Medical Conduct, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (James M. Hershler of counsel), forrespondent.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c) to review a determination of a Hearing Committee ofrespondent which suspended petitioner's license to practice medicine in New York for one year.
Prior to meeting with a patient on March 21, 2005 to discuss with her the results of acolonoscopy and pathology exam, petitioner, a physician licenced to practice medicine in NewYork, briefly reviewed the reports of both exams and, based on that reading, mistakenlyconcluded that petitioner had been found to have cecal carcinoma or cancer in hercolon.[FN*]In fact, the reports, when read together, found that a "proximal rectal mass: well-differentiatedadenocarcinoma" had been detected in the patient's rectum. After conferring with thepatient and [*2]informing her of his understanding of the resultsof these examinations, petitioner consulted with a surgeon and requested that a surgicalprocedure be performed on the patient to remove the cancer from her colon. As part of thepatient's preparation for this surgical procedure, petitioner arranged for her to undergo anemergency CT scan. Several days after the CT scan had been performed, the patient beganexperiencing persistent nausea and vomiting and, as a result, was admitted on an emergencybasis to the hospital. Two days later, on April 6, 2005, the surgical procedure to remove thecancer from the patient's colon was begun even though reports of the colonoscopy and pathologyexams were not part of her hospital file. When, during the procedure, a cancerous tumor was notlocated in the patient's colon, the surgeon contacted petitioner, told him of his findings andrequested that petitioner immediately forward to him the reports concerning the patient'scolonoscopy examination. After reading the reports, the surgeon continued to operate on thepatient, located the cancerous lesion in the patient's rectum and removed it. Twelve hours afterthe surgery had first begun, the patient was removed to a recovery room where she "developedsignificant wheezing, cessation of breathing [and] then a cardiopulmonary arrest" that caused herdeath.
Petitioner was subsequently charged with being grossly negligent and committingnegligence on more than one occasion in the quality of the medical care he provided this patient.He was also charged with failing to maintain adequate records regarding her treatment from thetime he initially consulted with the patient regarding the colonoscopy exam on March 31, 2005until the surgical procedure to remove the cancer was performed on April 6, 2005. After ahearing, a Hearing Committee of respondent absolved petitioner of gross negligence, but foundthat he had, as charged, been negligent on more than one occasion in regard to his treatment ofthis patient and with failing to maintain accurate medical records regarding her treatment andcondition. Based on these findings, the Hearing Committee voted to suspend petitioner's licensefor one year, but stayed the suspension for the entire period. Petitioner commenced this CPLRarticle 78 proceeding challenging the Hearing Committee's findings as not being supported bysubstantial evidence and claiming that, in part, it was based on an allegation of negligence thatwas not specified in the statement of charges filed against him.
As for petitioner's contention that the Hearing Committee partially based its findings that hewas negligent on a charge that had not been filed against him, he points to the HearingCommittee's reference to the CT scan and its conclusion that the contents of the report of thisdiagnostic procedure should have prompted petitioner to reconsider his diagnosis as to thelocation of the patient's cancer. Petitioner argues that the statement of charges, as written, did notput him on notice that his interpretation of the CT scan would be considered by the HearingCommittee in regard to the claim that he was negligent in the treatment he rendered this patient.
However, a statement of charges, to be legally sufficient, need not spell out in detail everyact or circumstance that will be considered in arriving at a finding that a physician was negligentin the care he or she provided a patient. To be legally sufficient, the statement need only "apprisethe party whose rights are being determined of the charges against him [or her]" so that he or shecan respond to them and prepare an adequate defense (Matter of Block v Ambach, 73NY2d 323, 333 [1989]). In that regard, it must set forth "the substance of the allegedprofessional misconduct and shall state clearly and concisely the material facts but not theevidence by which the charges are to be proved" (Public Health Law § 230 [10] [b][emphasis added]). Here, the content of the statement of charges clearly put petitioner on noticethat the claim of professional misconduct made against him revolved around his failure tocorrectly read the results of the colonoscopy and pathology exams. As for the CT scan, experttestimony heard [*3]by the Hearing Committee concluded thatpetitioner's negligence was compounded by his failure to respond appropriately to the CT scan'sfindings and recognized that, when read with other reports filed in connection with the patient'scare, it did not conclusively confirm petitioner's diagnosis as to the location of the patient'scancer. As such, the CT scan and petitioner's response to it in the context of the treatment herendered this patient constitute evidence that was fairly relied upon by the Hearing Committee tosupport its finding that he was guilty of professional misconduct (see Matter of Tsirelman vDaines, 61 AD3d 1128, 1130 [2009], lv denied 13 NY3d 709 [2009]).
Petitioner also argues that the Hearing Committee's finding that he committed repeated actsof negligence in regard to this patient's care was based on a single misreading of the reportsprepared regarding her colonoscopy, and decisions he made during his treatment of this patientthat were based on this single act of negligence cannot constitute separate and discrete acts ofnegligence. For a physician to be found to have practiced negligently on more than one occasion,there must be a finding of "distinct events of some duration during which an act or actsamounting to ordinary negligence occur" (Matter of Yong-Myun Rho v Ambach, 74NY2d 318, 322 [1989]; see Education Law § 6530 [3]; Matter of Corines vState Bd. for Professional Med. Conduct, 267 AD2d 796, 798 [1999], lv denied 95NY2d 756 [2000]). Here, as petitioner has acknowledged, his misreading of the results of thecolonoscopy exam and his conclusion as to the location of the patient's cancer constituted an actof professional negligence. However, his negligence did not end there. It was compounded byentries he made in the patient's chart after her admission to the hospital that she had "coloncancer" and that an "apple core lesion" had been located in her colon. In addition, his failure toinsure that the colonoscopy and pathology reports were included in the patient's medical recordsupon her admission to the hospital and prior to her undergoing the surgical procedure wereadditional acts of negligence that constituted substantial evidence for the Hearing Committee'sfinal determination as to this charge (see Matter of Corines v State Bd. for Professional Med.Conduct, 267 AD2d at 798; Matter of Bogdan v New York State Bd. for ProfessionalMed. Conduct, 195 AD2d 86, 89 [1993], appeal dismissed and lv denied 83 NY2d901 [1994]).
The Hearing Committee also concluded that petitioner was guilty of professional neglect infailing to insure that the medical records maintained on behalf of this patient "accuratelyreflect[ed her] evaluation and treatment" (Education Law § 6530 [32]). Not only didpetitioner make entries in the patient's medical chart that significantly misstated her condition,but he failed in his professional obligation as petitioner's treating physician to insure that herhospital chart contained all relevant reports and data regarding her condition prior to her surgerybeing performed. Since neither the colonoscopy nor the pathology reports had been forwarded bypetitioner or were part of the patient's medical chart prior to the surgical procedure beingperformed, the Hearing Committee's determination as to this charge was also supported bysubstantial evidence (see Matter of Ostad v New York State Dept. of Health, 40 AD3d1251, 1252 [2007]; Matter of Ticzon v New York State Dept. of Health, 305 AD2d 816,818 [2003]).
Cardona, P.J., Mercure, Spain and Malone Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: The colonoscopy reportconsisted of four pages with the first page briefly summarizing the findings of the exam andmaking appropriate recommendations. The pathology report was a one-page document thatcontained a final diagnosis of "proximal rectal mass: well-differentiated adenocarcinoma."