Loffredo v. Sobol

• Decision Date: 15 July 1993
• Citation: 600 N.Y.S.2d 507,195 A.D.2d 757
• Parties: In the Matter of Ronald A. LOFFREDO, Petitioner, v. Thomas SOBOL, as Commissioner of the New York State Education Department, et al., Respondents. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

Page 507

600 N.Y.S.2d 507

195 A.D.2d 757

In the Matter of Ronald A. LOFFREDO, Petitioner, v. Thomas SOBOL, as Commissioner of the New York State

Education Department, et al., Respondents.

(And Another Related Proceeding.)

Supreme Court, Appellate Division,

Third Department.

July 15, 1993.

Frederick W. Killeen, Schenectady, and Kopff, Nardelli and Dopf, New York City, for petitioner.

Robert Abrams, Atty. Gen. (Raymond J. Foley, of counsel), New York City, for respondents.

Before MIKOLL, J.P., and MERCURE, CREW and MAHONEY, JJ.

MERCURE, Justice.

Proceedings pursuant to CPLR article 78 (initiated in this court pursuant to Education Law former § 6510-a[4] to review two determinations which, inter alia, suspended petitioner's license to practice medicine in New York for one year.

Petitioner is a licensed physician engaged in the practice of obstetrics and gynecology. In July 1988, the State Board for Professional Medical Conduct (hereinafter BPMC) initiated charges against petitioner stemming from his care of 12 patients, designated patients A through L, who were admitted to Saratoga Hospital in the City of Saratoga Springs, Saratoga County, for labor and delivery. Petitioner was charged with a specification of gross negligence and/or gross incompetence with respect to each of the patients and, based upon the same underlying allegations, a single specification of negligence or incompetence on more than one occasion (see, Education Law § 6509[2]. Many of the specifications concerned petitioner's performance of a "forceps delivery which was not medically indicated".

An administrative hearing was conducted on 23 days between August 1988 and February 1989, with the principal witnesses consisting of petitioner, nursing personnel from Saratoga Hospital and numerous experts. On September 6, 1989, the Hearing Committee issued a detailed 121-page report setting forth its findings and conclusions. The Committee sustained five specifications of gross negligence and found that petitioner was negligent or incompetent in his care and treatment of nine of the patients, thereby sustaining the charge of negligence or incompetence on more than one occasion. On July 6, 1990, the Regents Review Committee issued a report accepting the Hearing Committee's findings and conclusions and recommending concurrent one-year suspensions of petitioner's license upon each specification, at the conclusion of which petitioner's license would remain partially suspended in the areas of "gynecological surgical procedures customarily performed in a hospital and obstetric procedures related to labor and delivery" until such time as he successfully completed a program of retraining in those areas. Thereafter, respondent Board of Regents accepted this recommendation and respondent Commissioner of Education issued an appropriate order, challenged by petitioner in these CPLR article 78 proceedings.

Noting that our inquiry is limited to the question of whether the determination of petitioner's guilt by a preponderance of the evidence is fully supported by substantial evidence in the record (see, Matter of Edelman v. Sobol, 174 A.D.2d 896, 897, 571 N.Y.S.2d 592, appeal dismissed, 78 N.Y.2d 1006, 575 N.Y.S.2d 456, 580 N.E.2d 1059; Matter of Carrera v. Sobol, 163 A.D.2d 706, 708, 558 N.Y.S.2d 306, aff'd, 77 N.Y.2d 931, 569 N.Y.S.2d 604, 572 N.E.2d 45), we shall address petitioner's challenges to the sufficiency of the evidence. Petitioner was found guilty of gross negligence in failing to promptly diagnose patient A's preeclampsia following her admission to Saratoga Hospital. Preeclampsia is a serious condition afflicting pregnant women and is characterized by blood pressure of 140/90 or a systolic rise of 30 or a diastolic rise of 15 over the prenatal baseline, nondependent edema (swelling of the hands or face) and proteinuria (abnormal amounts of protein in the urine). BPMC expert Richard Aubry, a specialist in high-risk pregnancies, testified that patient A's hospital records showed her to be a primigravida (first pregnancy) suffering from gestational diabetes who evidenced elevated blood pressure, edema of the hands and a plus one protein content in her urine. Based upon the foregoing, Aubry testified that patient A had preeclampsia, that the objective signs present during the first 4 to 6 hours following her admission warranted a diagnosis of preeclampsia, and that petitioner's failure to diagnose this condition within that time frame constituted a deviation from acceptable medical practice.

In our view, Aubry's testimony adequately supported the finding of gross negligence with respect to patient A. The contrary medical evidence presented by petitioner merely created a credibility issue which respondents were free to and did resolve against him (see, Matter of Edelman v. Sobol, supra; Matter of Stein v. Board of Regents of Univ. of State of N.Y., 169 A.D.2d 857, 858, 564 N.Y.S.2d 585, lv. denied, 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399, cert. denied, --- U.S. ----, 112 S.Ct. 372, 116 L.Ed.2d 324). "It is well settled that 'a determination * * * may be supported by substantial evidence despite conflicting testimony as to the charges' " (Matter of Stein v. Board of Regents of Univ. of State of N.Y., supra, 169 A.D.2d at 858, 564 N.Y.S.2d 585, quoting Matter of Holmstrand v. Board of Regents of Univ. of State of N.Y., 71 A.D.2d 725, 726, 419 N.Y.S.2d 223). Further, we reject the contention that the charge could...