Bogdan v. New York State Bd. for Professional Medical Conduct

• Decision Date: 30 December 1993
• Citation: 195 A.D.2d 86,606 N.Y.S.2d 381
• Parties: In the Matter of Susan L. BOGDAN, Petitioner, v. NEW YORK STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 381

606 N.Y.S.2d 381

195 A.D.2d 86

In the Matter of Susan L. BOGDAN, Petitioner, v. NEW YORK STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 30, 1993.

Michael P. Barnes (Henry Mark Holzer, of counsel), New York City, for petitioner.

Robert Abrams, Atty. Gen. (Michael S. Popkin, of counsel), New York City, for respondents.

Before WEISS, P.J., and MIKOLL, MERCURE, CARDONA and MAHONEY, JJ.

CARDONA, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c[5] to review a determination of respondent Administrative Review Board for Professional Medical Conduct which imposed upon petitioner a two-year period of probation.

Petitioner is a licensed physician specializing in anesthesiology. In April 1992, respondent State Board for Professional Medical Conduct charged petitioner with eight specifications alleging professional misconduct which included charges of gross negligence and/or gross incompetence, negligence and/or incompetence on more than one occasion and failure to keep accurate patient records, stemming from her treatment of six patients at Peekskill Community Hospital in Westchester County, designated as patients A through F.

Following an administrative hearing before a Hearing Committee on Professional Conduct (hereinafter the Committee), the Committee rendered its determination sustaining specifications 5 and 8. In specification 5, petitioner was charged with having practiced medicine with negligence on more than one occasion (see, Education Law § 6530[3] for failing to document information in the medical records of patients A, B, D, E and F, for leaving patient A without checking for vital signs or ascertaining that the patient was stable, and for anesthesia care rendered to patients B and D. In specification 8, petitioner was charged with failing to maintain adequate medical records (see, Education Law § 6530[32] for patients A, B, D, E and F. The Committee imposed no penalty upon petitioner, noting that petitioner had already undertaken a remediation program and that the deficiencies of which petitioner had been found guilty "resulted from carelessness, and a willingness to cut corners" rather than from a lack of professional knowledge. Both sides appealed to respondent Administrative Review Board for Professional Medical Conduct (hereinafter the Board) pursuant to Public Health Law § 230-c. The Board ultimately sustained the Committee's determination except in regard to its failure to impose a penalty. The Board imposed upon petitioner a two-year limited probation, with the sole condition that she submit her patient records to the Office of Professional Medical Conduct on a quarterly basis for review. After issuance of the Board's determination and order, petitioner commenced this CPLR article 78 proceeding.

Petitioner's primary contention is that the standard of proof required to find a physician guilty of "negligent" conduct under Education Law § 6530(3) must, at a minimum, include a showing that specific conduct posed a foreseeable risk of injury to a particular patient. Having previously held that injury, damages and proximate cause are not essential elements in a medical disciplinary proceeding (see, Matter of Morfesis v. Sobol, 172 A.D.2d 897, 899, 567 N.Y.S.2d 954 lv. denied 78 N.Y.2d 856, 574 N.Y.S.2d 937, 580 N.E.2d 409 see also, Matter of Loffredo v. Sobol, 195 A.D.2d 757, 600 N.Y.S.2d 507), we disagree. Proof that a physician failed to exercise the care that a reasonably prudent physician would exercise under the circumstances is sufficient to sustain a finding of "negligence" in a medical disciplinary proceeding. It is untenable to require a finding that a specific patient was placed at risk before permitting respondents to act. The purpose of such a proceeding is to protect the welfare of the general public who deal with State-licensed practitioners (see, Matter of Morfesis v. Sobol, supra, at 899, 567 N.Y.S.2d 954). That purpose is not promoted by injecting into the proceeding an element of foreseeable risk of injury to a specific patient, inasmuch as the public at large deserves protection from the risks attendant to substandard medical care. Such care, if left unchecked, will "assuredly result" in injury (Matter of Morfesis v. Sobol, supra, at 899, 567 N.Y.S.2d 954).

Petitioner next argues that the record-keeping defects at issue here did not rise to the level required to constitute violations of Education Law § 6530(32). That section provides that it is professional misconduct to fail "to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient". The evidence set forth in the record discloses that petitioner failed to maintain adequate records for patients A, B, D, E and F by failing to record such information as level of spinal anesthetic achieved, estimated blood loss, urine output and complications related to intubation, as well as the circumstances surrounding patient E's cardiac arrest. This court has held that a "medical record that fails to convey objectively meaningful medical information concerning the patient treated to other physicians is inadequate" (Matter of Mucciolo v. Fernandez, 195 A.D.2d 623, 625, 599 N.Y.S.2d 757; see, Matter of Revici v. Commissioner of Educ. of State of N.Y., 154 A.D.2d 797, 800, 546 N.Y.S.2d 240; see also, Matter of Schwarz v. Board of Regents of Univ. of State of N.Y., 89 A.D.2d 711, 712, 453 N.Y.S.2d 836, lv. denied 57 N.Y.2d 604, 454 N.Y.S.2d 1029, 440 N.E.2d 800). In our view, petitioner's patient records were...