Matter of Conteh v. Daines

• Citation: 52 A.D.3d 994,860 N.Y.S.2d 649,2008 NY Slip Op 05418
• Decision Date: 12 June 2008
• Docket Number: 503524.
• Parties: In the Matter of AMARA S. CONTEH, Petitioner, v. RICHARD F. DAINES, as Commissioner of Health of the State of New York, Respondent.
• Court: New York Supreme Court Appellate Division

52 A.D.3d 994

860 N.Y.S.2d 649

2008 NY Slip Op 05418

In the Matter of AMARA S. CONTEH, Petitioner, v. RICHARD F. DAINES, as Commissioner of Health of the State of New York, Respondent.

503524.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided June 12, 2008.

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, among other things, revoked petitioner's license to practice medicine in New York.

Cardona, P.J.

Petitioner, a physician licensed to practice in New York, was charged by the Bureau of Professional Medical Conduct with 26 specifications of professional misconduct in violation of Education Law § 6530, including negligence on more than one occasion, incompetence on more than one occasion, failure to maintain adequate patient records, fraudulent medical practice and moral unfitness. The allegations pertained to petitioner's treatment of 11 patients, identified as patients A through K, and prescribing controlled substances to them. Following an administrative hearing, during which the charges with respect to patient J were withdrawn, a Hearing Committee of the State Board for Professional Medical Conduct sustained all of the remaining charges except the allegation of fraudulent billing of health insurers and/or Medicaid. As a result, the Committee revoked petitioner's medical license and imposed a $110,000 fine. On administrative appeal, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) denied petitioner's request to remit the matter to the Committee for consideration of additional evidence and affirmed the determination. Thereafter, petitioner commenced this CPLR article 78 proceeding seeking to annul the ARB's determination.

Initially, we are unpersuaded by petitioner's contention that he was denied his rights to a fair hearing and due process by the ARB's and Committee's consideration of, and reliance on, his allegedly coerced confession and subsequent written statements obtained in connection with the criminal investigation into petitioner's medical practice. Notably, petitioner's motion to suppress such evidence at the criminal trial was denied upon a finding by the federal court that his statements were not coerced. Moreover, it is well settled that a petitioner in an administrative proceeding is "not entitled to all of the due process rights afforded a defendant in a criminal proceeding" (Matter of Kosich v New York State Dept. of Health, 49 AD3d 980, 982 [2008]; see Matter of Block v Ambach, 73 NY2d 323, 333 [1989]; Matter of Miles v Nyquist, 60 AD2d 133, 136 [1977], lvs dismissed 44 NY2d 644, 789, 853 [1978]).

Next, inasmuch as this proceeding is to review the determination of the ARB, petitioner's contention that the Committee's determination was not supported by substantial evidence is misplaced (see Matter of Maglione v New York State Dept. of Health, 9 AD3d 522, 524 [2004]). In that regard, our review of an ARB determination "is limited to whether the decision is arbitrary and capricious, affected by an error of law or an abuse of discretion," thereby distilling our inquiry "to whether the ARB's determination has a rational basis and is factually supported" (Matter of Khan v New York State Dept. of Health, 286 AD2d 562, 563 [2001] [internal quotation marks and citations omitted]). Applying that standard, we do not find adequate grounds to annul the ARB's determination. The testimony at the hearing reveals that petitioner, in contravention of the minimum standard of care of a reasonably prudent physician, repeatedly prescribed habit-forming controlled substances without obtaining patients' medical histories or performing appropriate physical examinations or evaluations necessary for proper diagnosis and treatment of the patients at issue. Furthermore, the proof supported the conclusion that these patients' records were inadequate. In light of this evidence, a rational basis exists in the record to support the charges of negligence and incompetence on more than one occasion as well as the failure to maintain accurate patient records (see Matter of Maglione v New York State Dept. of Health, 9 AD3d at 524-525).

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