In the Matter of Maria–lucia Anghel v. Daines

• Decision Date: 28 July 2011
• Citation: 86 A.D.3d 869,927 N.Y.S.2d 710,2011 N.Y. Slip Op. 06050
• Parties: In the Matter of Maria–Lucia ANGHEL, Petitioner,v.Richard F. DAINES, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 869
927 N.Y.S.2d 710
2011 N.Y. Slip Op. 06050

In the Matter of Maria–Lucia ANGHEL, Petitioner,
v.
Richard F. DAINES, as Commissioner of Health, et al., Respondents.

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

July 28, 2011.

[927 N.Y.S.2d 713]

Maria–Lucia Anghel, Oceanside, petitioner pro se.Eric T. Schneiderman, Attorney General, New York City (Kathryn E. Leone of counsel), for respondents.Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and GARRY, JJ.ROSE, J.

[86 A.D.3d 869] Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c[5] ) to review a determination of respondent Hearing Committee of the State Board for Professional Medical Conduct which, among other things, revoked petitioner's license to practice medicine in New York.

Petitioner, a physician board-certified in anesthesiology and pain management and licensed to practice medicine in New York, was charged by the Bureau of Professional Medical Conduct (hereinafter BPMC) with 25 specifications of professional misconduct, including fraudulent practice, negligence on more than one occasion, incompetence on more than one occasion, gross negligence, willful failure to comply with federal law and regulations, excessive tests and treatment and failure to maintain records. The charges related to petitioner's treatment of seven patients (hereinafter patients A through G) and her operation of a laboratory at her offices. Following extensive hearings on the matter, respondent Hearing Committee of the State Board for Professional Medical Conduct sustained each specification except for the charge of incompetence, revoked petitioner's license to practice medicine in New York and imposed a $240,000 fine. Petitioner then commenced this CPLR article 78 proceeding challenging that determination.

Initially, we are unpersuaded by petitioner's assertions that various evidentiary and procedural errors deprived her of her right to a fair hearing and due

[927 N.Y.S.2d 714]

process. A petitioner in an administrative proceeding is not entitled to all of the due process protections that are afforded to a defendant in a criminal action and the rules of evidence are not strictly applied ( see [86 A.D.3d 870] Matter of Rigle v. Daines, 78 A.D.3d 1249, 1250, 910 N.Y.S.2d 299 [2010], appeal dismissed 16 N.Y.3d 825, 921 N.Y.S.2d 186, 946 N.E.2d 174 [2011]; Matter of D'Souza v. New York State Dept. of Health, 68 A.D.3d 1562, 1563–1564, 893 N.Y.S.2d 294 [2009]; Matter of Conteh v. Daines, 52 A.D.3d 994, 995, 860 N.Y.S.2d 649 [2008] ).

Petitioner first challenges the admission of BPMC's exhibit No. 12, a CD containing a spreadsheet data file detailing claims submitted by petitioner to United Healthcare, the administrator of a healthcare benefit plan, for services she billed from 1994 to 2007 for patients C through G, and exhibit No. 12A, a hard copy printout of the spreadsheet. We find no record support for petitioner's contentions that the CD and the spreadsheet that were admitted into evidence at the hearing—and the spreadsheet that is now included in the record on appeal—are illegitimate and/or uncertified copies or that BPMC is withholding copies of the CD. Michael Stephano, a United Healthcare employee, testified that he created the spreadsheet using data stored in the regular course of business in United Healthcare's database and certified that the data file was a true, complete and accurate record of the claims submitted by petitioner. Although copies of the original CD were apparently made and provided to petitioner and the Administrative Law Judge (hereinafter ALJ) which, when viewed on the ALJ's computer, did not appear to be identical to the original CD, the Committee considered the original CD in evidence, which was also projected onto a screen during the hearing.

We also reject petitioner's challenge to the admission of this evidence on the ground that the spreadsheet constituted inadmissible hearsay and was not sufficiently reliable or accurate. Although it was discovered during the hearing that the spreadsheet contained certain date and code description errors, these errors were, for the most part, not substantive and affected only a small percentage of the data on the spreadsheet. Also, the Committee was made aware of the error by petitioner's cross-examination of the witnesses and the admission of a clarifying affidavit from Stephano, and the Committee had before it copies of the actual electronic claim submissions that petitioner made to United Healthcare from 1999 until 2004, substantiating the entries in the spreadsheet for that period. As the exhibits were properly certified and authenticated, and given the considerable leeway afforded the admission of evidence at the hearing, we discern no abuse of discretion in the ALJ's decision to admit them.

Petitioner also has not shown that she was deprived of a fair hearing and due process by any other of the ALJ's various rulings. The ALJ did not abuse his discretion in granting BPMC's [86 A.D.3d 871] motion to withdraw patient A's testimony without striking all of the charges related to patient A, as patient A's medical records supported the remaining charges related to her. The ALJ also acted within the bounds of his authority when he denied petitioner's motion for a mistrial based upon patient B's failure to return to testify after evidence surfaced calling into question the veracity of a limited portion of her testimony. Petitioner was able to introduce evidence indicating that patient B may have misrepresented her credentials during the hearing and the ALJ advised the Committee that she did not respond to a subpoena. In sum, the claimed evidentiary

[927 N.Y.S.2d 715]

errors were not so severe as to infect the entire proceeding with unfairness given petitioner's full opportunity to contest the evidence against her and present her own case ( see Matter of Rigle v. Daines, 78 A.D.3d at 1251, 910 N.Y.S.2d 299; Matter of Tsirelman v. Daines, 61 A.D.3d 1128, 1130–1131, 876 N.Y.S.2d 237 [2009], lv. denied 13 N.Y.3d 709, 2009 WL 3379009 [2009] ).

Petitioner also claims that her due process rights were violated because BPMC did not offer her an additional interview to allow her to respond to allegations concerning patients C through G before charges relating to those patients were investigated and added ( see Public Health Law § 230[10][a] [iii] ). We cannot agree. It is sufficient that petitioner received two preinvestigatory interviews regarding allegations relating to patients A and B, and BPMC offered petitioner an additional interview regarding the other patients before the hearing was convened, which she declined ( see Matter of Galin v. DeBuono, 259 A.D.2d 788, 789, 686 N.Y.S.2d 190 [1999], lv. denied 93 N.Y.2d 812, 695 N.Y.S.2d 541, 717 N.E.2d 700 [1999]; Matter of Gupta v. DeBuono, 229 A.D.2d 58, 61–62, 654 N.Y.S.2d 426 [1997] ). In any event, petitioner's due process rights were protected by her receipt of the detailed amended statement of the charges against her ( see Matter of Weg v. DeBuono, 269 A.D.2d 683, 689, 703 N.Y.S.2d 301 [2000], lv. denied 94 N.Y.2d 764, 708 N.Y.S.2d 52, 729 N.E.2d 709 [2000]; Matter of Clausen v. New York State Dept. of Health, 232 A.D.2d 917, 919, 648 N.Y.S.2d 842 [1996]; Matter of Gupta v. DeBuono, 229 A.D.2d at 62, 654 N.Y.S.2d 426). In addition, petitioner was provided adequate time to prepare for the hearing, and the Committee's refusal to grant her a second adjournment was not unreasonable and did not deprive her of due process ( see Matter of Laverne v. Sobol, 149 A.D.2d 758, 761–762, 539 N.Y.S.2d 556 [1989], lv. denied 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868 [1989] ). We have also examined petitioner's claims that BPMC engaged in misconduct throughout the pendency of the proceedings against her and found them to be wholly unsubstantiated.

Turning to the merits, our review of the Committee's decision is limited to determining whether it is supported by substantial evidence ( see [86 A.D.3d 872] Matter of D'Angelo v. State Bd. for Professional Med. Conduct, 66 A.D.3d 1154, 1155, 887 N.Y.S.2d 290 [2009]; Matter of Tsirelman v. Daines, 61 A.D.3d at 1129, 876 N.Y.S.2d 237). In making this determination, we will defer to the Committee's credibility determinations and resolution of...