Morfesis v. Sobol

• Decision Date: 04 April 1991
• Citation: 172 A.D.2d 897,567 N.Y.S.2d 954
• Parties: In the Matter of F. Andrew MORFESIS, Petitioner, v. Thomas SOBOL, as Commissioner of Education, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 954

567 N.Y.S.2d 954

172 A.D.2d 897

In the Matter of F. Andrew MORFESIS, Petitioner, v. Thomas SOBOL, as Commissioner of Education, Respondent.

Supreme Court, Appellate Division Third Department.

April 4, 1991.

Shults & Shults (David A. Shults, of counsel), Hornell, for petitioner.

Robert Abrams, Atty. Gen. (Yvonne Powe, of counsel), New York City, for respondent.

Before CASEY, J.P., and WEISS, MERCURE, CREW and HARVEY, JJ.

CREW, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a[4] to review a determination of respondent which, inter alia, suspended petitioner's license to practice medicine in New York for two years.

Petitioner, a licensed physician, was charged with practicing the profession negligently and/or incompetently on more than one occasion and with gross negligence and/or gross incompetence (Education Law § 6509[2] as to patients designated A through E. After a hearing before the State Board for Professional Medical Conduct, petitioner was found guilty of negligence as to patients B, C and E, and the remaining charges were dismissed. As a result, petitioner's license was suspended for two years, the suspension was stayed and petitioner was placed on two years' probation. Petitioner commenced this proceeding to challenge respondent's determination.

At his hearing petitioner sought to introduce into evidence medical literature which he claimed supported his treatment of patient B and directly contradicted the testimony of the State's expert. The Hearing Officer sustained an objection to the introduction of said material which petitioner contends violated his right to due process of law. It has long been the rule that statements in medical books, even if considered authoritative, are not admissible in evidence as proof of the facts or opinions contained therein (e.g., Pahl v. Troy City Railway Co., 81 App.Div. 308, 81 N.Y.S. 46). While it is clear that the strict rules of evidence are inapplicable to administrative hearings (Matter of Ackerman v. Ambach, 142 A.D.2d 842, 530 N.Y.S.2d 893, aff'd 73 N.Y.2d 323, 540 N.Y.S.2d 6, 537 N.E.2d 181), adherence to such a well-established common-law rule of evidence cannot be said to constitute a deprivation of due process. To warrant annulment, an erroneous evidentiary ruling must "infect the entire proceeding with unfairness" (id., 142 A.D.2d at 845, 530 N.Y.S.2d 893). That cannot be said in the case at bar.

Petitioner contends further that the determination of negligence as to patients B, C and E is not supported by substantial evidence. With regard to patient B, negligence was found in that petitioner performed surgery prematurely and failed to conduct adequate preoperative procedures. In support of that contention, the State's expert testified that the care of patient B deviated from accepted standards and was premature due to the patient's low blood pressure and low fluid level. He testified that good practice dictated that fluid therapy be administered for 12 to 24 hours prior to surgery. Petitioner relies on his expert who testified that, given the circumstances of this particular patient, surgery was not premature and did not constitute a deviation from accepted standards.

Patient E came to the hospital complaining of chest pain. Petitioner rejected X-ray diagnosis and endoscopy and proceeded to use a nasogastric tube to clear the patient's esophagus. He conceded that this was unorthodox. The State's expert testified that the standard practice called for petitioner to pass an endoscope into the patient's esophagus to visualize the area before attempting to clear it. Again petitioner relies on...