Hachamovitch v. State Bd. for Professional Medical Conduct
| Decision Date | 14 July 1994 |
| Citation | 614 N.Y.S.2d 608,206 A.D.2d 637 |
| Parties | In the Matter of Moshe HACHAMOVITCH, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Wood & Scher (Anthony Z. Scher, of counsel), Scarsdale, for petitioner.
G. Oliver Koppell, Atty. Gen. (Raymond J. Foley, of counsel), New York City, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WEISS and YESAWICH, JJ.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c[5] to review a determination of a Hearing Committee on Professional Conduct of respondent which, inter alia, suspended petitioner's license to practice medicine in New York for one year.
Petitioner is an obstetrician/gynecologist specializing in late second trimester abortions. In September 1992, petitioner was charged with nine specifications of misconduct, including practicing medicine with gross negligence, practicing medicine with negligence on more than one occasion, practicing medicine fraudulently and failing to maintain adequate patient records. The charges stemmed from petitioner's care and treatment of patients A, B and C, all of whom came to petitioner seeking abortions.
At the conclusion of the administrative hearing that followed, a Hearing Committee on Professional Conduct (hereinafter the Committee) issued a determination sustaining only the charge of practicing the profession fraudulently with respect to patient A (in violation of Education Law § 6530[2] and the charge of failing to maintain adequate records with respect to patients A, B and C (in violation of Education Law § 6530[32]. As to penalty, the Committee suspended petitioner's license to practice medicine for one year, with the last 11 months of the suspension permanently stayed. Petitioner then commenced this CPLR article 78 proceeding to challenge the Committee's determination. Petitioner's subsequent application for a stay of the order of suspension pending the outcome of this proceeding was granted by this court.
It is well settled that our inquiry is limited to whether the determination of guilt by a preponderance of the evidence is supported by substantial evidence in the record (see, Matter of Poulard v. Commissioner of Health of State of N.Y., 202 A.D.2d 756, 758, 608 N.Y.S.2d 726, 727-28). Here, the charge of practicing medicine fraudulently stemmed from two entries made by petitioner in patient A's office record--namely, that patient A had no bleeding at all and that she had been given continuous oxygen by mask.
With respect to the entry regarding the administration of oxygen, we agree with petitioner that there simply is not sufficient evidence in the record before us to support the Committee's findings in this regard, and the charge of practicing the profession fraudulently cannot be sustained on this basis. We reach a contrary conclusion, however, with respect to the entry regarding patient A's blood loss. Although the Committee rejected testimony to the effect that patient A was bleeding heavily upon her arrival at petitioner's office on the morning in question, the Committee did find that patient A suffered a significant blood loss following the abortion procedure performed by petitioner and, in our view, there is substantial evidence in the record to support this determination.
The testimony offered by emergency medical service personnel, the drop in patient A's hematocrit and the presence of vaginal packing all support the Committee's finding that patient A indeed lost a significant amount of blood. Although petitioner presented expert testimony on the issue and attempted to limit the notation in patient A's record regarding blood loss to a specific point in time, such testimony merely presented a credibility issue for the...
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