MATTER OF SAUNDERS v. ADMINISTRATIVE REVIEW BOARD FOR PROFESSIONAL MEDICAL CONDUCT

• Decision Date: 21 October 1999
• Citation: 695 N.Y.S.2d 778,265 A.D.2d 695
• Parties: In the Matter of JAY S. SAUNDERS, Petitioner,<BR>v.<BR>ADMINISTRATIVE REVIEW BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Court: New York Supreme Court — Appellate Division

265 A.D.2d 695

695 N.Y.S.2d 778

In the Matter of JAY S. SAUNDERS, Petitioner,

v.ADMINISTRATIVE REVIEW BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

Decided October 21, 1999.

Crew III, Spain, Graffeo and Mugglin, JJ., concur.

Cardona, P. J.

Petitioner has practiced pediatric medicine in New York since May 1987. As the result of an investigation by the Bureau of Professional Medical Conduct (hereinafter BPMC), petitioner was charged with numerous specifications of professional misconduct involving his treatment of five patients (hereinafter patients A, B, C, D and E) between December 1989 and November 1993. In particular, the BPMC charged petitioner with, inter alia, performing unnecessary tests (Education Law § 6530 [35]), engaging in fraudulent or deceptive advertising (Education Law § 6530 [27] [a]), practicing with negligence on more than one occasion (Education Law § 6530 [3]), fraudulent practice (Education Law § 6530 [2]) and failing to maintain accurate patient records (Education Law § 6530 [32]).

Following the presentation of evidence, a Hearing Committee for the State Board of Professional Medical Conduct (hereinafter the Committee) sustained some of the charges. Specifically, the Committee found that petitioner engaged in fraudulent advertising and failed to maintain accurate records for certain patients. It further determined that petitioner practiced with negligence on more than one occasion and performed unnecessary tests in his treatment of certain patients. The Committee, inter alia, suspended petitioner's license to practice medicine for one year (with the last six months stayed) and imposed a fine of $5,000 for fraudulent advertising.

Upon appeal by the BPMC, respondent modified the Committee's determination. Respondent sustained the Committee's findings that petitioner practiced with negligence on more than one occasion, failed to maintain accurate patient records and ordered unnecessary tests. However, it did not sustain the charge that petitioner practiced fraudulently but did find that petitioner engaged in deceptive advertising. Respondent, inter alia, upheld the one-year suspension (with the last six months stayed), but reduced the fine to $2,500, attributing it to ordering unnecessary tests. Thereafter, petitioner commenced this CPLR article 78 proceeding challenging respondent's determination.

We must decide whether respondent's determination was arbitrary and capricious, affected by an error of law or an abuse of discretion (see, Matter of Larkins v DeBuono, 257 AD2d 714; Matter of Lombardo v DeBuono, 233 AD2d 789, 792; Matter of Chua v Chassin, 215 AD2d 953, 954, lv denied 86 NY2d 708). In short, "[t]he inquiry hinges on whether the administrative determination has a rational basis supported in fact" (Matter of Gottesman v New York State Dept. of Health, 229 AD2d 742, 743). We acknowledge that considerable deference should be accorded the findings of the administrative fact finder who is in the best position to assess the credibility of witnesses and weigh their testimony (see, Matter of Morrison v DeBuono, 255 AD2d 710, 711; Matter of Brown v New York State Dept. of Health, 235 AD2d 957, 958, lv denied 89 NY2d 814).

Petitioner contends, inter alia, that respondent's finding that he ordered unnecessary tests is inconsistent with the factual record. We disagree. The record contains the testimony of two medical experts who opined that certain tests ordered by petitioner for different patients were not medically indicated. He further asserts that the claimed inadequacies in the medical records relating to his treatment of patients A and B do not...