| Matter of Patin v State Bd. for Professional Med. Conduct |
| 2010 NY Slip Op 07635 [77 AD3d 1211] |
| October 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Yury Patin, Petitioner, v State Board forProfessional Medical Conduct, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Peter S. Hyun of counsel), forrespondent.
Peters, J.P. Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to PublicHealth Law § 230-c [5]) to review a determination of the Hearing Committee ofrespondent which, among other things, revoked petitioner's license to practice medicine in NewYork.
Petitioner, a physician licensed to practice internal medicine in New York, was charged bythe Bureau of Professional Medical Conduct (hereinafter BPMC) with 32 specifications ofprofessional misconduct in relation to his care and treatment of seven patients (hereinafterpatients A through G). The charges included negligence and incompetence on more than oneoccasion, practicing medicine in a fraudulent manner, willfully making or filing false reports,failing to maintain accurate medical records, ordering unwarranted tests and treatment, andengaging in conduct evincing moral unfitness. Although a Hearing Committee of respondentfound insufficient proof to sustain one charge of fraudulent practice (relating to patient A) andtwo charges of false reporting (relating to patients A and E), it ultimately sustained 28 of the 32specifications. Petitioner's license to practice medicine in New York was revoked and a $50,000fine was imposed. Petitioner then commenced this CPLR article 78 proceeding challenging thatdetermination.
Upon review, our inquiry is limited to assessing whether the Hearing Committee's [*2]determination is supported by substantial evidence (see Matter of D'Angelo v State Bd. forProfessional Med. Conduct, 66 AD3d 1154, 1155 [2009]; Matter of Ostad v New York State Dept. ofHealth, 40 AD3d 1251, 1252 [2007]). Furthermore, "the assessment and resolution ofconflicting evidence and witness credibility are within the exclusive province of the HearingCommittee" (Matter of Chamberlin vNew York State Bd. for Professional Med. Conduct, 34 AD3d 1097, 1098 [2006][internal quotation marks and citations omitted]; see Matter of Forester v State Bd. for Professional Med. Conduct, 36AD3d 1127, 1128 [2007], lv denied 8 NY3d 812 [2007]; Matter of Yoonessi v State Bd. forProfessional Med. Conduct, 2 AD3d 1070, 1073 [2003], lv denied 3 NY3d 607[2004]). Guided by these principles, we conclude that each charge sustained by the HearingCommittee is supported by substantial evidence.
The Hearing Committee's findings of negligence on more than one occasion, incompetenceon more than one occasion and, as to each of the seven patients, the ordering of unwarranted testsare amply supported by record evidence.[FN1]Based upon his review of the medical records of the patients at issue, Stephen Moshman, aboard-certified physician in the field of internal medicine, testified in detail as to petitioner'sfailure to obtain proper patient histories and to adequately perform and document physicalexaminations. He further explained that petitioner's medical records with respect to each of thepatients revealed a pattern of solely stating a diagnostic conclusion with little or no elaboration ofsymptoms, history or follow-up and unaccompanied by any physical findings.[FN2]According to Moshman, since the missing information was critical to proper patient care andtreatment, petitioner's omissions in this regard deviated significantly from accepted medicalstandards of care. Evidence was also presented that petitioner misread tests concerning patientsB, C, E and F, neglected to make appropriate referrals and failed to follow-up and adequatelyaddress a number of critical issues, such as patient A's potential cardiac problems, patient C'sbreast abnormality, patient E's significant hypercholesterolemia[FN3]and patient F's torn meniscus. The Hearing Committee concluded that, [*3]with respect to each of the seven patients, petitioner failed toprovide treatment in a rational, systematic and comprehensive manner.
Moshman also concluded, and the Hearing Committee found, that petitioner ordered multiplediagnostic tests for each patient, often without first performing a preliminary work-up, that werenot medically justified.[FN4]Furthermore, some of these tests were repeatedly ordered by petitioner, despite the fact that theinitial tests yielded normal results and the patients' symptoms had not changed. Of particularimport was the fact that petitioner ordered relatively invasive nerve conduction tests for each ofthe seven patients without performing a complete neurological examination and in the absence ofany physical findings in the patients' medical records indicating the need for such a procedure.Relatedly, the Hearing Committee concluded that, given that petitioner was treating most of theseven patients for neurological problems, his admitted failure to perform a complete neurologicalexamination on any of these patients constituted egregious conduct.
Petitioner did not present an expert and, although conceding that his medical records weredeficient in various respects, testified that he did in fact conduct appropriate patient histories andphysical examinations, had justifications for the numerous diagnostic tests he ordered and/orperformed and adequately treated all seven patients. The Hearing Committee deemed Moshman'stestimony to be highly credible and, finding petitioner to be "evasive on questioning" and neither"credible [n]or believable," rejected petitioner's attempts to justify his actions as well as histestimony that the omitted patient histories and examinations were actually performed. In view ofthe foregoing and deferring to the Hearing Committee on issues of credibility (see Matter of Sookhu v Commissioner ofHealth of State of N.Y., 31 AD3d 1012, 1014 [2006]; Matter of Pearl v New YorkState Bd. for Professional Med. Conduct, 295 AD2d 764, 765 [2002], lv denied 99NY2d 501 [2002]; Matter of Singer v Novello, 288 AD2d 777, 778 [2001]), we find thatsubstantial evidence supports the Hearing Committee's determination sustaining the charges ofnegligence on more than one occasion, incompetence on more than one occasion and ordering ofunwarranted tests.
We reach a similar conclusion with respect to the charges of fraud and false billing. Afinding of fraudulent practice requires "proof of either an intentional misrepresentation orconcealment of a known fact, [and] the intent or knowledge element may be inferred from thesurrounding circumstances" (Matter of Steckmeyer v State Bd. for Professional Med.Conduct, 295 AD2d 815, 817 [2002] [citation omitted]; see Matter of Aptaker v Administrative Review Bd. for Professional Med.Conduct, 60 AD3d 1160, 1163 [2009], lv denied 12 NY3d 713 [2009]; Matter of Ross v State Bd. for ProfessionalMed. Conduct, 45 AD3d 927, 929 [2007], lv denied 10 NY3d 701 [2008]).Furthermore, there is no requirement that the fraud cause an injury to the patient (see Matterof Youssef v State Bd. for Professional Med. Conduct, 6 AD3d at 826; Matter of Mayer vNovello, 303 AD2d 909, 910 [2003]).
The Hearing Committee found, based upon Moshman's testimony regarding the appearanceof certain billing codes in the records of patients B, C, D, E, F and G and the lack of a medicalrecord in the respective patient's file to reflect that the corresponding procedure was [*4]actually performed, as well as various admissions made bypetitioner, that petitioner billed the medical insurers of those patients for diagnostic tests thatwere never performed. It also rejected petitioner's claims that, for the most part, these weresimply billing errors. In light of these findings and the pattern of the purported billing errors, theHearing Committee could reasonably infer petitioner's knowledge that the bills were false andthat he willfully intended to deceive the patients' medical insurers (see Matter of Tsirelman v Daines, 61AD3d 1128, 1130 [2009], lv denied 13 NY3d 709 [2009]; Matter of Corines vState Bd. for Professional Med. Conduct, 267 AD2d 796, 799-800 [1999], lv denied95 NY2d 756 [2000]; Matter of Post v State of N.Y. Dept. of Health, 245 AD2d 985, 987[1997]). Moreover, the documented pattern of unwarranted procedures provided an independentbasis for the findings that petitioner engaged in fraudulent practice by exposing his patients tounnecessary and/or excessive medical treatments and billing their insurers for those procedures(see Matter of Tsirelman v Daines, 61 AD3d at 1130-1131; Matter of Steckmeyer vState Bd. for Professional Med. Conduct, 295 AD2d at 818). Thus, the evidence presentedand the inferences reasonably flowing therefrom provide ample support for the sustained chargesof fraudulent medical practice and filing of false reports.
Nor do we find any basis to disturb the Hearing Committee's determination to sustain thecharge of moral unfitness. The evidence of, among other things, petitioner's fraudulent billingpractices provides substantial evidence supporting this charge, since such conduct demonstratesdeliberate deceit which "violat[es] the trust the public bestows on the medical profession and/orviolat[es] the medical profession's moral standards" (Matter of Prado v Novello, 301AD2d 692, 694 [2003] [internal quotation marks and citations omitted]; see Matter of Conteh v Daines, 52AD3d 994, 996 [2008]). Finally, given petitioner's negligent behavior, his consistent failureto maintain adequate medical records for the seven patients at issue and his repeated fraudulentpractice, we cannot say that the penalty of license revocation is "so disproportionate to theunderlying offenses as to be shocking to one's sense of fairness" (Matter of Ross v State Bd.for Professional Med. Conduct, 45 AD3d at 930; see Matter of Youssef v State Bd. forProfessional Med. Conduct, 6 AD3d at 826-827; Matter of Prado v Novello, 301AD2d at 694).
Rose, Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: Petitioner does not challenge thefindings that he failed to maintain accurate medical records with respect to each of the sevenpatients.
Footnote 2: Since inadequate medicalrecords will support a finding of negligence where " 'there is a relationship between inadequaterecord-keeping and patient treatment' " (Matter of Youssef v State Bd. for Professional Med. Conduct, 6 AD3d824, 825 [2004], quoting Matter of Bogdan v New York State Bd. for Professional Med.Conduct, 195 AD2d 86, 89 [1993], appeal dismissed and lv denied 83 NY2d 901[1994]), the scant nature of petitioner's records coupled with Moshman's testimony regarding theimport of the missing information provides an additional basis for sustaining the charge ofnegligence on more than one occasion (see Matter of Tulier-Pastewski v State Bd. for Professional Med.Conduct, 13 AD3d 918, 920 [2004]; Matter of Youssef v State Bd. for ProfessionalMed. Conduct, 6 AD3d at 825; Matter of Corines v State Bd. for Professional Med.Conduct, 267 AD2d 796, 798 [1999], lv denied 95 NY2d 756 [2000]).
Footnote 3: Hypercholesterolemia is thepresence of excess cholesterol in the blood.
Footnote 4: These tests included, amongothers, nerve conduction studies, MRIs, video electro nystagmometry tests, pulmonary functiontests, Doppler exams and echocardiograms.