Corines v. State Bd. for Professional Medical Conduct

• Decision Date: 23 December 1999
• Citation: 267 A.D.2d 796,700 N.Y.S.2d 303
• Parties: 1999 N.Y. Slip Op. 10,975 In the Matter of Peter J. CORINES et al., Petitioners, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 303

700 N.Y.S.2d 303

1999 N.Y. Slip Op. 10,975

In the Matter of Peter J. CORINES et al., Petitioners, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 23, 1999.

Wood & Scher (Anthony Z. Scher of counsel), Scarsdale, for petitioners.

Eliot Spitzer, Attorney-General (Raymond J. Foley of counsel), New York City, for respondent.

Before: MIKOLL, J.P., MERCURE, CREW III, YESAWICH JR. and MUGGLIN, JJ.

MUGGLIN, J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c ) to review a determination of the Hearing Committee of respondent which, inter alia, revoked petitioner Peter J. Corines' license to practice medicine in New York.

Petitioners Surgical Consultants P.C. and Ambulatory Anesthesia & Medical Services P.C., both professional corporations authorized to practice the profession of medicine, and petitioner Peter J. Corines, being the sole shareholder and director of each corporation, were charged by the Bureau of Professional Medical Conduct (hereinafter BPMC) with 52 ¹ specifications of professional misconduct based on Corines' treatment of 17 patients, billing and recordkeeping improprieties, and misleading applications for hospital privileges. In particular, petitioners were charged with 11 counts of professional misconduct by reason of practicing the profession with gross negligence; 11 counts of professional misconduct by reason of practicing the profession with gross incompetence; professional misconduct by reason of practicing the profession with negligence on more than one occasion; professional misconduct by reason of practicing the profession with incompetence on more than one occasion; 10 counts of professional misconduct by reason of practicing the profession of medicine fraudulently 17 counts of professional misconduct by reason of failing to maintain a record for each patient which accurately reflected the evaluation and treatment of the patient; and one count of professional misconduct by reason of ordering excessive tests not warranted by the condition of the patient.

Following a hearing spanning 15 separate days during which the Hearing Committee of respondent heard testimony from various lay and expert witnesses, petitioners were found guilty of negligence on 13 separate occasions in the course of treating eight different patients; professional misconduct by reason of practicing the profession with incompetence on four occasions; professional misconduct by reason of practicing the profession of medicine fraudulently by seven separate acts of fraud stemming from billing practices related to seven different patients; professional misconduct by reason of practicing the profession of medicine fraudulently on two separate occasions resulting from material omissions in Corines' appointment applications to two separate facilities; and 16 counts of professional misconduct by reason of failing to maintain accurate and complete patient records relating to 16 different patients. As a result of these findings, the Hearing Committee revoked Corines' license to practice medicine, revoked the certificates of incorporation of both professional corporations and assessed a fine of $90,000 against Corines. Petitioners commenced this CPLR article 78 proceeding to seek judicial review of the determination of the Hearing Committee. ²

Petitioners initially contend that the Hearing Committee's finding that petitioners practiced negligently on more than one occasion must be reversed since the Hearing Committee misapplied the definition of "negligence on more than one occasion". They argue that as a result of the misunderstanding of the term "occasion", the Hearing Committee improperly aggregated separate and discrete acts to conclude that petitioners failed to exercise the due care that would be exercised by a reasonably prudent physician and, in doing so, the Hearing Committee sustained the charge of practicing the profession with negligence "on a particular occasion". In Matter of Rho v. Ambach, 74 N.Y.2d 318, 546 N.Y.S.2d 1005, 546 N.E.2d 188, the Court of Appeals observed:

Moreover, section 6509(2) distinguishes between professional misconduct resulting from practicing with gross negligence on a "particular occasion" and practicing with ordinary negligence "on more than one occasion". The inference is compelling that by its use of the phrase "particular occasion" in describing gross negligence, the Legislature was referring to an event of some duration occurring at a particular time or place, during which either a single act of negligence of egregious proportions or multiple acts of negligence that cumulatively amount to egregious conduct could constitute gross negligence. Use of the phrase "on more than one occasion" suggests, with equal force, that the Legislature was referring to distinct events of some duration during which an act or acts amounting to ordinary negligence occur (id., at 322, 546 N.Y.S.2d 1005, 546 N.E.2d 188).

Here, the Hearing Committee took isolated, separate events with respect to a particular patient and concluded that the combination of those events constituted negligence. After reviewing the entirety of the determination, we are convinced that petitioners' argument in this regard is without merit. It is clear that the Hearing Committee determined that petitioners' care with respect to a particular patient was negligence and that the negligence consisted of several misdeeds. It is also clear that the Hearing Committee considered the course of treatment of a particular patient to be the "event" and concluded that petitioners were negligent on that occasion. In sustaining specification 12, the Hearing Committee merely found that petitioners had committed acts of negligence on more than one occasion and with respect to distinctive events.

Next, petitioners contend that the negligence findings are not supported by substantial evidence. This argument is premised upon the lack of expert testimony in support of the findings of fact made by the Hearing Committee. "Where there is a relationship between inadequate record-keeping and patient treatment, the failure to keep accurate records may constitute negligence" (Matter of Bogdan v. New York State Bd. of Professional Med. Conduct, 195 A.D.2d 86, 89, 606 N.Y.S.2d 381, appeal dismissed, lv. denied 83 N.Y.2d 901, 614 N.Y.S.2d 381, 637 N.E.2d 272). Here, petitioners argue that no expert testimony was offered to establish the required nexus between the alleged recordkeeping deficiencies and patient care. We disagree.

There is evidence in the record offered by expert witnesses that petitioners' deficiencies in recordkeeping did affect patient care. Although there may have been conflicting expert testimony on this issue, it is the...