MATTER OF HARRIS v. Novello

• Decision Date: 19 October 2000
• Citation: 276 A.D.2d 848,714 N.Y.S.2d 365
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of MONROE HARRIS, Petitioner,<BR>v.<BR>ANTONIA C. NOVELLO, as Commissioner of the New York State Department of Health, et al., Respondents.

276 A.D.2d 848

714 N.Y.S.2d 365

In the Matter of MONROE HARRIS, Petitioner,

v.ANTONIA C. NOVELLO, as Commissioner of the New York State Department of Health, et al., Respondents.

Rose, J.

Decided October 19, 2000.

Mercure, J.P., Crew III, Spain and Lahtinen, JJ., concur.

Rose, J.

Following a hearing, a Hearing Committee for the State Board for Professional Medical Conduct (hereinafter BPMC) issued a determination sustaining six charges of fraudulent practice, six charges of making or filing a false statement, two charges of failure to maintain adequate patient records, and charges of negligence and incompetence in the treatment of two patients by petitioner, a licensed physician. Citing the number and nature of the sustained charges, the Hearing Committee imposed a penalty of license revocation. On appeal, respondent Administrative Review Board for Professional Medical Conduct (hereinafter ARB) sustained both the Hearing Committee's findings of professional misconduct and the penalty of license revocation, a determination challenged by petitioner in this CPLR article 78 proceeding.

Initially, we reject petitioner's contention that the charges of fraudulent practice and making or filing false reports should not have been sustained. Specifically, petitioner answered "No" to questions on three applications for reappointment to hospital staff positions in September 1990, December 1991 and September 1992 asking if he had been disciplined or investigated for professional misconduct. In fact, as the Hearing Committee found and petitioner does not dispute, he had been aware that, since September 1989, he was the subject of an ongoing investigation by the Bureau of Controlled Substances of respondent Department of Health concerning his prescription record-keeping and dispensing of certain controlled substances stored in his office for patients' use. In November 1992, petitioner entered into a stipulation and order to conclude the Bureau's investigation. In that document, defendant admitted that between July 1987 and October 1989, he had dispensed controlled substances from his office without proper practitioner-identifying information, in violation of 10 NYCRR 80.72 (a) (2), for which he was sanctioned with a fine.

In a fourth hospital application in September 1994, petitioner again denied having been previously sanctioned or that he was currently under investigation. However, this application was submitted two days after he had signed a consent order to settle an investigation by BPMC, resulting in the penalties of a stayed two-year suspension of his license, a two-year period of probation and an additional fine. Immediately following the expiration of this probationary period, in November 1996, petitioner applied for renewal of his medical license, stating that his hospital privileges had never been restricted or terminated. In fact, his application for reappointment to a hospital staff had been denied in March 1996 due to his failure to disclose his prior sanctions.

Upon review, we are limited to an assessment of whether the administrative determination is "`arbitrary and capricious, affected by an error of law or an abuse of discretion'" (Matter of Pisnanont v New York State Bd. for Professional Med. Conduct, 266 AD2d 592, 593, quoting Matter of Spartalis v State Bd. for Professional Med. Conduct, 205 AD2d 940, 942, lv denied 84 NY2d 807), and our primary focus is on whether the determination had a "rational basis supported by fact" (Matter of Chua v Chassin, 215 AD2d 953, 954-955, lv denied 86 NY2d 708). This standard is met by the evidence in the record supporting the ARB's finding of intentional misrepresentation, a necessary element of the charges of fraudulent practice and making and filing a false report (see, Matter of Schoenbach v DeBuono, 262 AD2d 820, 822, lv denied 94 NY2d 756; Matter of Berger v Board of Regents, 178 AD2d 748, 751, appeal dismissed 79 NY2d 977, lv denied 80 NY2d 918, cert denied 507 US 1018).

Petitioner's assertions that the documents in question were too difficult for him to understand because he suffers from various learning disabilities and that he thought his failure to be reappointed did not constitute a termination of privileges that had to be listed on his fourth hospital staff...