Gottesman v. New York State Dept. of Health

• Decision Date: 18 July 1996
• Citation: 229 A.D.2d 742,645 N.Y.S.2d 609
• Parties: In the Matter of Albert GOTTESMAN, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 609

645 N.Y.S.2d 609

229 A.D.2d 742

In the Matter of Albert GOTTESMAN, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 18, 1996.

Cooper & Genetin (Richard R. Leff, of counsel), Kew Gardens, for petitioner.

Dennis C. Vacco, Attorney General (Michael Melkonian, of counsel), New York City, for respondents.

Before MERCURE, J.P., and CREW, CASEY, PETERS and SPAIN, JJ.

CASEY, 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 revoked petitioner's license to practice medicine in New York.

Following fact-finding hearings, a Hearing Committee of the State Board for Professional Medical Conduct (hereinafter the Committee) sustained certain charges of professional misconduct by petitioner relating to patients designated A, C, D and G, and revoked petitioner's license to practice medicine. Petitioner appealed to respondent Administrative Review Board for Professional Medical Conduct (hereinafter the ARB), which sustained the Committee's determination and penalty. Petitioner then commenced this CPLR article 78 proceeding to annul the ARB's determination.

The relevant charges allege that petitioner performed a laparoscopy that was not indicated on patient A and sexually abused her during a vaginal examination; that petitioner failed to test patient C for diabetes during her pregnancy despite her weight of 266 pounds; that petitioner improperly advised patient D to have a laparoscopy, requested her to sign a sterilization consent form without informing patient D that her signature on the form would authorize such a procedure, knowingly billed patient D's insurance company for a colposcopy and hysteroscopy which were never conducted, and performed three unnecessary ultrasounds; and that petitioner solicited $350 above the insurance reimbursement rate from patient G prior to the birth of her baby and threatened harm to the baby during circumcision if that amount was not paid.

Petitioner contends that the Committee's findings as to patients A, C, D and G were not supported by the record. Where, as here, the Committee's findings were reviewed by the ARB, the proper standard of review is whether the ARB's determination was arbitrary and capricious, affected by an error of law or an abuse of discretion (see, Matter of Finelli v. Chassin, 206 A.D.2d 717, 718-719, 614 N.Y.S.2d 634). The inquiry hinges on whether the administrative determination has a rational basis supported in fact (see, Matter of Chua v. Chassin, 215 A.D.2d 953, 954-955, 627 N.Y.S.2d 152, lv. denied 86 N.Y.2d 708, 634 N.Y.S.2d 441, 658 N.E.2d 219). In making such inquiry we do not resolve credibility issues or weigh the testimony of expert witnesses, for those are issues solely within the province of the administrative factfinder (see, Matter of Moss v. Chassin, 209 A.D.2d 889, 891, 618 N.Y.S.2d 931, lv. denied 85 N.Y.2d 805, 627 N.Y.S.2d 322, 650 N.E.2d 1324, cert. denied --- U.S. ----, 116 S.Ct. 170, 133 L.Ed.2d 111).

The findings of misconduct with regard to patients A and D are consistent with the testimony of each patient and the corresponding testimony of respondents' expert, who also testified regarding petitioner's treatment of patient C. The findings of misconduct with regard to patient G are based on the testimony of the patient and her husband. Petitioner presents a number of arguments...