Carloni v. De Buono

• Decision Date: 31 December 1997
• Citation: 667 N.Y.S.2d 109,245 A.D.2d 970
• Parties: , 1997 N.Y. Slip Op. 11,401 In the Matter of Edmund CARLONI, Petitioner, v. Barbara A. DE BUONO, as Commissioner of the State of New York Department of Health, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 109

667 N.Y.S.2d 109

245 A.D.2d 970, 1997 N.Y. Slip Op. 11,401

In the Matter of Edmund CARLONI, Petitioner, v. Barbara A. DE BUONO, as Commissioner of the State of New

York Department of Health, Respondent.

Supreme Court, Appellate Division,

Third Department.

Dec. 31, 1997.

Featherstonhaugh, Conway, Wiley & Cline L.L.P. (Andrew W. Kirby, of counsel), Albany, for petitioner.

Dennis C. Vacco, Attorney General (Alan B. Berkowitz, of counsel), New York City, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c [5] ) to review a determination of the Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

Petitioner, a licensed general practitioner and primary care physician, was charged with eight specifications of professional misconduct stemming from his treatment of five patients, and his stipulation to violating Public Health Law article 33. A hearing ensued, after which a Hearing Committee of the State Board for Professional Medical Conduct found petitioner guilty of practicing medicine negligently on more than one occasion, incompetence on more than one occasion, failing to maintain adequate records, and improperly prescribing controlled substances in violation of Public Health Law article 33. On appeal, the Administrative Review Board (hereinafter ARB) upheld the Committee's factual findings and conclusions, as well as its determination to revoke petitioner's medical license. Petitioner seeks annulment of that decision.

Petitioner's contrary view notwithstanding, the written statement of charges--which specifies the conditions petitioner purportedly failed to correctly diagnose or evaluate, as well as the drugs he is alleged to have improperly prescribed, for each patient--is sufficiently clear and detailed to apprise petitioner of the conduct at issue and to permit him to adequately prepare a defense; more is not required (see, Matter of Block v. Ambach, 73 N.Y.2d 323, 333, 540 N.Y.S.2d 6, 537 N.E.2d 181; Matter of Denis v. Board of Regents of Univ. of State of N.Y., 192 A.D.2d 963, 966-967, 596 N.Y.S.2d 914). Neither does the fact that the same deficiencies are cited as the basis for charges of negligence and incompetence render the notice improper (see, e.g., Matter of Minielly v. Commissioner of Health of State of N.Y., 222 A.D.2d 750, 634 N.Y.S.2d 856). Also meritless is petitioner's challenge to the adequacy of the Committee's factual findings (see, Matter of Matala v. Board of Regents of Univ. of State of N.Y., 183 A.D.2d 953, 954, 583 N.Y.S.2d 575).

Nor was petitioner deprived of due process because he was not permitted to voir dire the Committee members in an attempt to demonstrate that they were biased against him. His particular complaint in this regard is that the panel members may have been influenced by their personal views as to the propriety or desirability of issuing prescriptions for controlled substances to addicts or habitual drug users. There being no indication that any of the Committee members was unable to render an impartial decision (see, Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 N.Y.2d 186, 197, 440 N.Y.S.2d 875, 423 N.E.2d 352, cert. denied 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112), petitioner was not entitled to engage in a "fishing expedition" in hopes of uncovering something that would substantiate his speculative allegation of bias.

As for petitioner's assertions that the Hearing Committee and the ARB had, in fact, prejudged his case, and that their unfavorable determinations were driven by bias (see, Matter of Chace v. De Buono, 223 A.D.2d 961, 636 N.Y.S.2d 905), it suffices to note that the finding that petitioner had illegally prescribed controlled substances was predicated solely on his stipulation to that effect, rather than on any subjective evaluation of the...