In the Matter of Nessim Roumi v. State Bd. For Prof'l Med. Conduct

• Citation: 2011 N.Y. Slip Op. 07763,89 A.D.3d 1170,932 N.Y.S.2d 554
• Parties: In the Matter of Nessim ROUMI, Petitioner,v.STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Decision Date: 03 November 2011
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1170
932 N.Y.S.2d 554
2011 N.Y. Slip Op. 07763

In the Matter of Nessim ROUMI, Petitioner,
v.
STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

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

Nov. 3, 2011.

[932 N.Y.S.2d 556]

Lawler, Mahon & Rooney L.L.P., New York City (James J. Mahon of counsel), for petitioner.Eric T. Schneiderman, Attorney General, New York City (Raymond J. Foley of counsel), for respondent.Before: PETERS, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.PETERS, J.P.

[89 A.D.3d 1170] Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c [5] ) to review a determination of the Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

Petitioner, a physician licensed to practice medicine in New [89 A.D.3d 1171] York, was charged by the Bureau of Professional Medical Conduct (hereinafter BPMC) with practicing medicine with negligence on more than one occasion, incompetence on more than one occasion and failure to maintain accurate medical records in connection with his care and treatment of five patients. Following a hearing, a Hearing Committee of respondent sustained each of the charges and suspended petitioner's license for six months, placed him on probation for one year and fined him $30,000. Upon BPMC's appeal, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) sustained the charges, but modified the penalty by revoking petitioner's license. Petitioner thereafter commenced this proceeding seeking to annul the ARB's determination.

We reject petitioner's assertion that it was error to conduct the administrative proceeding during the pendency of criminal charges against him arising out his treatment of certain of the patients at issue ( see Matter of Gross v. De Buono, 223 A.D.2d 789, 791, 636 N.Y.S.2d 147 [1996]; Matter of Viloria v. Sobol, 152 A.D.2d 92, 95, 547 N.Y.S.2d 688 [1989]; Matter of Baumeister, 38 A.D.2d 139, 140, 327 N.Y.S.2d 893 [1972] ). Notably, petitioner never moved to adjourn the administrative hearing or to dismiss the felony complaints for failure to prosecute despite the fact that, according to petitioner, they remained pending, but not acted upon, for more than five years at the time of the administrative hearing ( see Oleshko v. New York State Liq. Auth., 29 A.D.2d 84, 87–88, 285 N.Y.S.2d 696 [1967], affd. 21 N.Y.2d 778, 288 N.Y.S.2d 474, 235 N.E.2d 447 [1968] ). Furthermore, petitioner's assertion that BPMC's expert witness, a licensed osteopath, was biased against the management of pain by use of prescription drugs is unsupported by the record. To the contrary, the expert testified that use of pain medication such as that prescribed by petitioner may be appropriate depending on a patient's symptoms, and that he himself prescribes narcotics for acute and chronic pain. In the absence of any factual demonstration in support of this claim and proof that the administrative outcome flowed from the alleged bias ( see Matter of Gant v. Novello, 302 A.D.2d 690, 692, 754 N.Y.S.2d 746 [2003], lv. denied 100 N.Y.2d 502, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003]; Matter of Lauersen v. Novello, 293 A.D.2d 833, 834, 739 N.Y.S.2d 780 [2002] ), we find no basis to conclude that petitioner was deprived of his right to a fair hearing and due process.

[932 N.Y.S.2d 557]

Petitioner next contends that the evidence presented at the hearing was insufficient to support the ARB's findings of negligence and incompetence on more than one occasion. We disagree. “ ‘Given that the Hearing Committee's determination was reviewed by the ARB ..., our review is limited to ascertaining whether [the ARB's determination] was arbitrary [89 A.D.3d 1172] and capricious, affected by error of law or an abuse of discretion’ ” ( Matter of Arnett v. New York State...