MATTER OF BARAD v. State Board for Professional Medical Conduct

• Decision Date: 19 April 2001
• Citation: 724 N.Y.S.2d 87,282 A.D.2d 893
• Parties: In the Matter of DAVID M. BARAD, Petitioner,<BR>v.<BR>STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Court: New York Supreme Court — Appellate Division

282 A.D.2d 893

724 N.Y.S.2d 87

In the Matter of DAVID M. BARAD, Petitioner,

v.STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

Mercure, J.

Decided April 19, 2001.

Cardona, P. J., Peters, Spain and Carpinello, JJ., concur.

Mercure, J.

Petitioner, a physician specializing in obstetrics, gynecology and reproductive endocrinology, challenges a determination of a Hearing Committee of the State Board for Professional Medical Conduct finding him guilty of physically abusing a patient (see, Education Law § 6530 [31]) and engaging in conduct in the practice of medicine that evidences moral unfitness to practice medicine (see, Education Law § 6530 [20]), both arising out of petitioner's conceded consensual sexual relationship with a female patient (patient A) during an approximately three-month period ending in December 1996. Petitioner also challenges the penalty imposed, i.e., a five-year suspension of petitioner's license to practice medicine, with a stay of the last three years if petitioner completes continuing medical education courses or medical school classes on patient abuse. Because we conclude that the contentions advanced by petitioner are lacking in merit, the Hearing Committee's determination shall be confirmed and the petition dismissed.

Initially, we reject the argument that there was not substantial evidence in the record to support the Hearing Committee's finding of a physician-patient relationship between petitioner and patient A through December 2, 1996, the date when petitioner broke off their relationship. The record establishes that patient A treated with petitioner at Montefiore Medical Center's Fertility and Hormone Center in an effort to become pregnant despite a prior tubal ligation. Active treatment was undertaken from February 1996 through August 8, 1996 and included unsuccessful in vitro fertilization and frozen embryo transfer procedures. According to petitioner and expert witnesses who testified on his behalf, in vitro fertilization and frozen embryo transfer treatments are cyclical in nature and the treatment ends with the conclusion of an in vitro fertilization cycle or a frozen embryo transfer. The expert evidence presented by petitioner indicated that the cycle of petitioner's final unsuccessful effort at a frozen embryo transfer concluded on August 20, 1996, when patient A was notified of the negative results of her pregnancy test.

Patient A, on the other hand, testified as to her belief that petitioner was still her physician during the affair because she never terminated her attempts to become pregnant and no one at the Center told her that she was no longer a patient. According to patient A, she was "instructed to wait after [the final unsuccessful treatment] before [she] tried again or what method they were going to recommend to [her] next." She also testified: "At that time just like before in between the other transfers he just counselled me: We are going to wait or try another method, because they had three or four different methods they used in the clinic, but I was never told other than that." Consistent with that view, patient A continued to recognize petitioner as her doctor and discussed her fertility problems and treatments with him during the time of their sexual affair, as confirmed by certain e-mails between petitioner and patient A. It is also noteworthy that petitioner met with patient A at his office on December 2, 1996 and on that occasion made an entry in her patient chart indicating that no further therapy was going to be pursued at that time.

Recognizing that credibility issues and the weight to be given the hearing evidence, including expert testimony, are matters exclusively within the province of the Hearing Committee, we conclude that the record provides substantial evidence to support the Hearing Committee's finding that the physician-patient relationship between petitioner and patient A continued to December 2, 1996 (see, Matter of Reddy v State Bd. for Professional...