Larkins v. De Buono

• Decision Date: 07 January 1999
• Parties: 1999 N.Y. Slip Op. 80 In the Matter of Robert LARKINS, Petitioner, v. Barbara A. DE BUONO, as Commissioner of Health of the State of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 732

682 N.Y.S.2d 732

1999 N.Y. Slip Op. 80

In the Matter of Robert LARKINS, Petitioner,

v. Barbara A. DE BUONO, as Commissioner of Health of the State

of New York, Respondent.

Supreme Court, Appellate Division,

Third Department.

Jan. 7, 1999.

Harold Solomon, Rockville Centre, for petitioner.

Eliot Spitzer, Attorney General (Samuel S. Chin of counsel), New York City, for respondent.

Before: CARDONA, P.J., CREW, YESAWICH, PETERS and CARPINELLO, JJ.

CREW, J.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c) to review a determination of the Administrative Review Board for Professional Medical Conduct which, inter alia, revoked petitioner's license to practice medicine in New York.

In March 1997, the Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner, a licensed osteopathic physician, with 14 specifications of misconduct. Specifically, petitioner was charged with at least one specification of practicing medicine fraudulently, practicing with negligence on more than one occasion, practicing with incompetence on more than one occasion, ordering excessive tests and treatments, and failing to maintain adequate patient records. The charges stemmed from petitioner's care and treatment of patients A, B, C and D during portions of 1991, 1992 and/or 1993.

At the conclusion of the administrative hearing that followed, at which expert testimony was adduced on behalf of petitioner and the BPMC, the Hearing Committee found that petitioner practiced the profession fraudulently, ordered excessive tests and treatments, and failed to maintain proper patient records with respect to patients A, B and C. The Hearing Committee did not sustain the charges of practicing with negligence or incompetence on more than one occasion, nor did the Hearing Committee sustain any of the charges with respect to patient D. As to penalty, the Hearing Committee revoked petitioner's license to practice medicine.

Petitioner thereafter appealed the Hearing Committee's determination to the Administrative Review Board for Professional Medical Conduct (hereinafter ARB), which sustained the Hearing Committee's finding of guilt. Additionally, the ARB found that there was sufficient proof in the record to sustain the charge of practicing with negligence on more than one occasion. The ARB also affirmed the penalty of revocation and, further, imposed upon petitioner a $10,000 fine, prompting petitioner to commence this proceeding pursuant to CPLR article 78 to challenge the ARB's determination.

It is well settled that where, as here, we are called upon to review a determination rendered by the ARB, "our inquiry is limited to whether such determination 'was made in violation of lawful procedure, was affected by an error or law, was arbitrary and capricious or was an abuse of discretion' " (Matter of Glassman v. Commissioner of Dept. of Health of State of N.Y., 208 A.D.2d 1060, 1061, 617 N.Y.S.2d 413, lv. denied 85 N.Y.2d 801, 624 N.Y.S.2d 371, 648 N.E.2d 791, quoting Matter of Wapnick v. New York State Bd. for Professional Med. Conduct, 203 A.D.2d 728, 729, 611 N.Y.S.2d 41; see, Matter of Brown v. New York State Dept. of Health, 235 A.D.2d 957, 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). Applying that standard to the matter before us, it is apparent that the ARB's determination must be confirmed.

During the course of the administrative hearing Jerome Greenholz, also an osteopathic physician, testified on behalf of the BPMC. After reviewing petitioner's office records for the patients at issue, Greenholz testified that petitioner engaged in a practice of ordering tests that were not medically indicated. Specifically, with respect to patient A, Greenholz testified that the Cybex muscle testing, tympanogram, arterial and venous studies, thermogram, four magnetic resonance imaging...