Matter of Maglione v. New York State Department of Health

• Citation: 2004 NY Slip Op 05696,779 N.Y.S.2d 319,9 A.D.3d 522
• Decision Date: 01 July 2004
• Docket Number: 93529.
• Parties: In the Matter of PAUL L. MAGLIONE, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court Appellate Division

9 A.D.3d 522

779 N.Y.S.2d 319

2004 NY Slip Op 05696

In the Matter of PAUL L. MAGLIONE, Petitioner, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.

93529.

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

July 1, 2004

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, inter alia, suspended petitioner's license to practice medicine in New York.

MUGGLIN, J.

Petitioner, a physician licensed to practice medicine in New York since 1959, was charged by the Bureau of Professional Medical Conduct (hereinafter the BPMC) with 49 specifications of misconduct in violation of Education Law § 6530, including practicing medicine with gross negligence and gross incompetence, practicing medicine negligently on more than one occasion, practicing medicine incompetently on more than one occasion, and failing to maintain accurate medical records, all relating to his care of eight patients (hereinafter patients A through H). Following a hearing, a Hearing Committee of the State Board for Professional Medical Conduct sustained six charges of practicing medicine negligently on more than one occasion and eight charges of failing to maintain accurate medical records, but did not sustain any charges of gross negligence gross incompetence or practicing medicine incompetently on more than one occasion. Based on the found violations, the Hearing Committee suspended petitioner's license to practice medicine in New York for five years, stayed the suspension and placed petitioner on probation with a practice monitor for that period. On administrative appeal, the Administrative Review Board for Professional Medical Conduct (hereinafter ARB) affirmed. Petitioner then commenced this proceeding seeking annulment of the ARB's determination and arguing that he was deprived of due process, the findings of the Hearing Committee were not proven by substantial evidence, and the penalty imposed is excessive.

Petitioner's lack of due process argument is based on his claims that he was the victim of a biased investigation and prosecution and prosecutorial misconduct, and the charges lacked sufficient specificity to allow a proper defense. Specifically, petitioner points to a statement made by a nurse investigator and a statement made by the BPMC's attorney to demonstrate that he was the victim of age discrimination. He also alleges overzealous advocacy of the BPMC's case because an investigator shredded the notes that he took during his interview with petitioner and because the BPMC brought charges against petitioner for his care of patients B, C, D, E, F, G and H, even though none of these patients made a complaint.

An administrative determination may be annulled when "`prejudice so permeate[d] the underlying hearing as to render it unfair'" (Matter of Richstone v Novello, 284 AD2d 737, 739 [2001], quoting Matter of Jean-Baptiste v Sobol, 209 AD2d 823, 824 [1994]). However, "`[m]erely alleging bias is not sufficient to set aside an administrative determination. Rather, the party alleging bias must set forth a factual demonstration supporting the allegation as well as prove that the administrative outcome flowed from it'" (Matter of Yoonessi v State Bd. for Professional Med. Conduct, 2 AD3d 1070, 1071 [2003], quoting Matter of Sunnen v Administrative Review Bd. for Professional Med. Conduct, 244 AD2d 790, 791 [1997], lv denied 92 NY2d 802 [1998]). The factual demonstration must overcome "`the presumption of honesty and integrity accorded to administrative body members'" (Matter of Yoonessi v State Bd. for Professional Med. Conduct, supra at 1071, quoting Matter of Sunnen v Administrative Review Bd. for Professional Med. Conduct, supra at 792; see Matter of Kole v New York State Educ. Dept., 291 AD2d 683, 686 [2002]; Matter of Richstone v Novello, supra at 739).

After careful analysis, we conclude that petitioner's claims are either unsupported by the record or they amount to no more than an allegation of bias with no factual demonstration supporting the allegation or that the administrative outcome flowed from it. Moreover, despite the allegations of note shredding, the Hearing Committee found the witness to be credible, a finding to which the ARB deferred, and that determination may not be disturbed by this Court (see Matter of Bottros v DeBuono, 256 AD2d 1034, 1036 [1998]; Matter of Brown v New York State Dept. of Health, 235 AD2d 957, 958 [1997], lv denied 89 NY2d 814 [1997]).

Next, since this proceeding is to review the determination of the ARB, petitioner's second argument that the findings of the Hearing Committee were not proven by substantial evidence is flawed (see Matter of Brown v New York State Dept. of Health, supra at 957-958). "In reviewing a determination of the ARB, [this Court is] limited to ascertaining whether it was `arbitrary and capricious, affected by error of law or an abuse of discretion'" (Matter of Bottros v DeBuono, supra at 1035-1036, quoting Matter of Chua v Chassin, 215 AD2d 953, 954 [1995], lv denied 86 NY2d 708 [1995]; see Matter of Lugo v New York State Dept. of Health, 306 AD2d 766, 766-767 [2003]; Matter of Citronenbaum v New York State Dept. of Health, 303 AD2d 855, 857 [2003]). "Under this standard, [this Court's] inquiry is whether the administrative determination has a rational basis supported by fact" (Matter of Brown v New York State Dept. of Health, supra at 958 [citation omitted]). When making such a determination, this Court "may not consider credibility issues, for to do so would impinge upon the province of the administrative fact finder" (Matter of Bottros v DeBuono, supra at 1036).

Guided by these principles, we first address the findings of practicing medicine negligently on more than one occasion. "A physician is guilty of negligence on more than one occasion . ....