| Matter of Nisi v New York State Dept. of Health |
| 2010 NY Slip Op 01397 [70 AD3d 1211] |
| February 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Raymond Joseph Nisi, Petitioner, v New YorkState Department of Health et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (George A. Alvarez of counsel), forrespondents.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant toPublic Health Law § 230-c [5]) to review a determination of respondent AdministrativeReview Board for Professional Medical Conduct which revoked petitioner's license to practicemedicine in New York.
Petitioner is an ophthalmologist who has been licensed to practice medicine in New Yorksince 1990. In 1998, he entered into a consent agreement and order whereby he resolved 14alleged specifications of misconduct by agreeing not to contest three of the specifications (onefor negligence on more than one occasion and two for inadequate record keeping) and heaccepted a penalty of two years stayed suspension of his license with probation. Subsequently, inOctober 2007, the Bureau of Professional Medical Conduct (hereinafter BPMC) charged himwith seven specifications as a result of his treatment of patient A. In essence, he allegedlytreated, conducted tests and scheduled surgery for a purported cataract condition from which thepatient did not actually suffer. After the presentation of proof, a Hearing Committee ofrespondent State Board for Professional Medical Conduct sustained two of the charges(negligence on more than one occasion and unwarranted tests) and, for a penalty, ordered him to[*2]pay a $20,000 fine and prohibited him from performingcataract surgery for one year. Both parties appealed to respondent Administrative Review Boardfor Professional Medical Conduct (hereinafter ARB). The ARB affirmed the Committee'sdetermination regarding professional misconduct, but increased the penalty to revocation ofpetitioner's license. Petitioner then commenced this proceeding.
Petitioner argues that the ARB's decision is not supported by adequate evidence. "Judicialreview of a decision of the ARB is limited to determining whether the decision was 'arbitrary andcapricious, affected by an error of law or an abuse of discretion' " (Matter of Buckner v State Bd. forProfessional Med. Conduct, 7 AD3d 840, 841 [2004], quoting Matter of Spartalis vState Bd. for Professional Med. Conduct, 205 AD2d 940, 942 [1994], lv denied 84NY2d 807 [1994]). "A finding of negligence on more than one occasion will meet this standardif the evidence shows that the physician repeatedly failed to exercise the care that a reasonablyprudent physician would exercise under the circumstances" (Matter of Tulier-Pastewski v State Bd. for Professional Med. Conduct,13 AD3d 918, 919 [2004] [internal quotation marks and citations omitted]). "Credibilitydeterminations, including concerning the weight and qualifications of expert witnesses, arematters solely within the province of the administrative factfinder" (Matter of Kosich v New York State Dept.of Health, 49 AD3d 980, 984 [2008] [citations omitted], appeal dismissed 10NY3d 950 [2008]).
Although petitioner had treated patient A since 1992, the conduct that formed the basis forthe professional misconduct charges occurred in a series of five visits between July 2003 andMay 2005. During such time, petitioner diagnosed both of patient A's eyes with a cataractcondition known as nuclear sclerosis, the progression of which he reported as growing worsefrom 1+ to 2+ on a scale of 0 to 4+. He concluded that the condition could not be corrected withglasses and, therefore, he ordered surgery for the condition. In preparation for the surgery,petitioner conducted an A-scan, which is used to determine the size for the lens implant.
Prior to surgery, patient A visited her primary care physician, who testified at the hearingthat he could not find any evidence of cataracts. He thus referred her for a second opinion toanother ophthalmologist. That ophthalmologist conducted a series of tests in May 2005. Hetestified at the hearing that he found no need for surgery since patient A's corrected vision wasnearly 20/20 and, significantly, he did not detect nuclear sclerosis. Patient A came under his careand no surgery was conducted. The BPMC's expert, an ophthalmologist, testified in detail aboutnecessary tests that petitioner failed to conduct during several visits by patient A. He opined thatthere was no need for patient A to have cataract surgery and explained several ways in whichpetitioner's treatment deviated from acceptable medical care. Deferring to the ARB's credibilitydeterminations, including accepting the testimony of the three physicians produced by theBPMC, the decision sustaining the charges against petitioner was not arbitrary and is supportedby ample evidence in the record.
Our review of petitioner's challenge to the penalty imposed by the ARB is "limited towhether the penalty is so incommensurate with the offense as to shock one's sense of fairness"(Matter of Peress v Administrative Review Bd. for Professional Med. Conduct, 294AD2d 753, 758 [2002] [internal quotation marks and citations omitted]; see Matter of Sawangkao v New YorkState Bd. for Professional Med. Conduct, 12 AD3d 735, 737 [2004], lv denied 4NY3d 704 [2005]). The ARB is authorized to increase the penalty of the Committee (see Matter of Cohen v New York StateDept. of Health, 65 AD3d 791, 793 [2009]). Here, the ARB found the harsher [*3]penalty of revocation justified since petitioner had previously beenon probation with a practice monitor as a result of similar misconduct, and yet he failed tocorrect the deficiencies in his approach to the practice of medicine. The ARB further noted thathe was not in need of retraining since he knew the established standards of care, but failed tofully accept his responsibility to follow those standards. In light of the nature of petitioner'smisconduct, his prior disciplinary record and his failure after the prior misconduct to takeappropriate corrective steps, we are unpersuaded that the penalty is inappropriate under theapplicable highly deferential standard of review (see Matter of Ostad v New York State Dept. of Health, 40 AD3d1251, 1253 [2007]; Matter of Lucas v Novello, 296 AD2d 735, 735-736 [2002]).
Mercure, J.P., Spain, Rose and McCarthy, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.