Mucciolo v. Fernandez

• Decision Date: 01 July 1993
• Citation: 599 N.Y.S.2d 757,195 A.D.2d 623
• Parties: In the Matter of Robert MUCCIOLO, Petitioner, v. Henry A. FERNANDEZ, as Deputy Commissioner of Education of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 757

599 N.Y.S.2d 757

195 A.D.2d 623

In the Matter of Robert MUCCIOLO, Petitioner, v. Henry A. FERNANDEZ, as Deputy Commissioner of Education of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 1, 1993.

Belair & Evans (John T. Evans, of counsel), New York City, for petitioner.

Robert Abrams, Atty. Gen. (Raymond J. Foley, of counsel), New York City, for respondents.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.

MIKOLL, Justice Presiding.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law former § 6510-a[4] to review a determination of the Commissioner of Education which suspended petitioner's license to practice medicine in New York.

Petitioner, a licensed urologist, was charged by the State Board for Professional Medical Conduct with five specifications of professional misconduct arising from his treatment of patients A and B. The charges alleged that petitioner practiced the profession fraudulently, with negligence on more than one occasion, with gross negligence on two separate occasions (see, Education Law § 6509[2] and with failing to maintain accurate records (see, 8 NYCRR 29.2[a][3].

An administrative hearing was conducted before a Hearing Committee, which found that the charges as to patient B were not sustained. The Hearing Committee found that during a combined cystoscopy and ureteroscopy procedure (hereinafter the first procedure) performed on patient A, a portion of her ureter was found on the tip of the ureteroscope, that petitioner performed a combined exploratory lapartomy and nephrostomy (hereinafter the second procedure) and that there was no dictated operative note for such procedure. The Hearing Committee determined that petitioner did not intentionally misrepresent or conceal facts concerning the procedures performed, that petitioner's treatment of patient A was not negligent or grossly negligent, and that numerous handwritten notes contained in the hospital record adequately reflected petitioner's care and treatment of patient A. The Hearing Committee recommended that no charges against petitioner be sustained.

Review procedures continued and the case reached the Regents Review Committee, which recommended that respondent Board of Regents (hereinafter the Board) accept the Hearing Committee's findings, proposed 22 additional findings of fact, and recommended that petitioner be found guilty of failing to maintain accurate patient records and that his license be suspended for one year, the suspension to be stayed. The Board accepted the findings, conclusion and penalty as recommended by the Regents Review Committee, and an order was entered reflecting the Board's determination. This CPLR article 78 proceeding was then commenced by petitioner.

Examination of the record reveals that the determination finding that petitioner failed to adequately maintain records which accurately reflect patient A's evaluation and treatment is supported by substantial evidence and that the penalty imposed is not disproportionate to the offense. The determination should therefore be confirmed.

Respondents' contentions--that the operative note for the first procedure was deficient because it failed to indicate what caused the avulsion and did not adequately reflect the subsequent treatment of patient A; that petitioner failed to prepare an operative note on the second procedure detailing the reason for...