Galin v. De Buono

• Decision Date: 04 March 1999
• Citation: 686 N.Y.S.2d 190,259 A.D.2d 788
• Parties: 1999 N.Y. Slip Op. 1990 In the Matter of Miles A. GALIN, Petitioner, v. Barbara A. DE BUONO, as Commissioner of the New York State Department of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 190

686 N.Y.S.2d 190

1999 N.Y. Slip Op. 1990

In the Matter of Miles A. GALIN, Petitioner, v. Barbara A. DE BUONO, as Commissioner of the New York State Department of Health, et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 4, 1999.

Schlam, Stone & Dolan (Robert E. Goldman of counsel), New York City, for petitioner.

Eliot Spitzer, Attorney-General (Barbara K. Hathaway of counsel), New York City, for respondents.

Before: MIKOLL, J.P., CREW III, YESAWICH JR., PETERS and GRAFFEO, JJ.

YESAWICH JR., J.

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

Petitioner, a licensed ophthalmologist, challenges the determination of a Hearing Committee of the State Board for Professional Medical Conduct (hereinafter BPMC) finding him guilty of professional misconduct in the treatment of 11 patients (identified as patients A through H and K through M). Petitioner was found guilty of ordering excessive tests (Education Law § 6530[35] ), practicing medicine fraudulently (Education Law § 6530[2] ), practicing medicine negligently on more than one occasion (Education Law § 6530[3] ), and failing to maintain accurate records (Education Law § 6530[32] ). Substantial evidence in the record supports the BPMC's determination.

At the hearing, patients A, B, C, D, E and F testified with regard to their treatment by petitioner. Several of these witnesses stated that they reviewed summaries of payments made by their insurance carriers to petitioner and found that the bills reflected payment for specific tests (e.g., fluoroscein angiograms) that they were certain they had not received, and also for more treatment than had in fact been furnished. Additionally, respondents' expert, Paul Orloff, an ophthalmologist, opined that petitioner's office records were inadequate, as they failed to document test results and, in some instances, did not indicate a treatment plan for the patient. Moreover, it was Orloff's opinion that petitioner performed medically unnecessary tests as evidenced by the patients' records, which reflected the administration of tests that did not correspond with the patient's symptomology. Expert testimony also supported the BPMCs' determination that petitioner practiced negligently with regard to the care he rendered these patients.

The BPMC, which is invested with the power to assess the credibility of witnesses, lay and expert alike (see, Matter of Brown v. New York State Dept. of Health, 235 A.D.2d 957, 958, 652 N.Y.S.2d 860, lv. denied 89 N.Y.2d 814, 659 N.Y.S.2d 854, 681 N.E.2d 1301; Matter of Gross v. De Buono, 223 A.D.2d 789, 790, 636 N.Y.S.2d 147), specifically determined that key witnesses, patients A through F, and Orloff were variously "believable", "credible", and "highly credible". Petitioner's suggestion, that the patient witnesses' memories may have faded with time and that they may have been unable to recall if, in fact, a test was actually performed, is unpersuasive given that the tests involved lengthy and sometimes invasive procedures.

A review of two memoranda contained in the record belies petitioner's assertion that he was not afforded a proper prehearing interview as required by Public Health Law § 230(10)(a)(iii). The memoranda make clear that the two prehearing interviews were appropriate, dealing, as they did, with the "broader issues of the charges and the patients involved" (Matter of Van Gaasbeek v. Chassin, 198 A.D.2d 572, 574, 603 N.Y.S.2d 223, lv. denied 82 N.Y.2d 665, 610 N.Y.S.2d 152, 632 N.E.2d 462; see, Matter of Gupta v. De Buono, 229 A.D.2d 58, 62, 654 N.Y.S.2d 426). Nor does the record support petitioner's conclusory allegations of bias on the part of the BPMC investigator or that the BPMC's determination was influenced by such bias (see generally, Matter of Pekarsky v. Commissioner of N.Y. State Dept. of Social Servs., --- A.D.2d ----, ----, 684 N.Y.S.2d 656, 657-658; Matter of Moss v. Chassin, 209 A.D.2d 889, 890, 618 N.Y.S.2d 931, lv. denied 85 N.Y.2d 805, 627 N.Y.S.2d 322, 650 N.E.2d 1324).

Also to no avail is petitioner's contention that the determination must be annulled because his hearing was not held within 60 days of being served with the statement of charges pursuant to Public Health Law § 230(10)(f). The BPMC...