Patin v. State Bd. for Prof'l Med. Conduct

• Decision Date: 28 October 2010
• Citation: 77 A.D.3d 1211,911 N.Y.S.2d 184
• Parties: In the Matter of Yury PATIN, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 184
77 A.D.3d 1211

In the Matter of Yury PATIN, Petitioner,
v.
STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 28, 2010.

911 N.Y.S.2d 185

Wood & Scher, White Plains (Anthony Z. Scher of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York City (Peter S. Hyun of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.

PETERS, J.P.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230-c[5] ) to review a determination of the Hearing Committee of respondent which, among other things, revoked petitioner's license to practice medicine in New York.

77 A.D.3d 1212

Petitioner, a physician licensed to practice internal medicine in New York, was charged by the Bureau of Professional Medical Conduct (hereinafter BPMC) with 32 specifications of professional misconduct in relation to his care and treatment of seven patients (hereinafter patients A through G). The charges included negligence and incompetence on more than one occasion, practicing medicine in a fraudulent manner, willfully making or filing false reports, failing to maintain accurate medical records, ordering unwarranted tests and treatment, and engaging in conduct evincing moral unfitness. Although a Hearing Committee of respondent found insufficient proof to sustain one charge of fraudulent practice (relating to patient A) and two charges of false reporting (relating to patients A and E), it ultimately sustained 28 of the 32 specifications. Petitioner's license to practice medicine in New York was revoked and a $50,000 fine was imposed. Petitioner then commenced this CPLR article 78 proceeding challenging that determination.

Upon review, our inquiry is limited to assessing whether the Hearing Committee's determination is supported by substantial evidence ( see Matter of D'Angelo v. State Bd. for Professional Med. Conduct, 66 A.D.3d 1154, 1155, 887 N.Y.S.2d 290 [2009]; Matter of Ostad v. New York State Dept. of Health, 40 A.D.3d 1251, 1252, 837 N.Y.S.2d 364 [2007] ). Furthermore, "the assessment and resolution of conflicting evidence and witness credibility are within the exclusive province of the Hearing Committee" ( Matter of Chamberlin v. New York State Bd. for Professional Med. Conduct, 34 A.D.3d 1097, 1098, 825 N.Y.S.2d 172 [2006] [internal quotation marks and citations omitted]; see Matter of Forester v. State Bd. for Professional Med. Conduct, 36 A.D.3d 1127, 1128, 828 N.Y.S.2d 644 [2007], lv. denied 8 N.Y.3d 812, 836 N.Y.S.2d 551, 868 N.E.2d 234 [2007]; Matter of Yoonessi v. State Bd. for Professional Med. Conduct, 2 A.D.3d 1070, 1073, 769 N.Y.S.2d 326 [2003], lv. denied 3 N.Y.3d 607, 785 N.Y.S.2d 24, 818 N.E.2d 666 [2004] ). Guided by these principles, we conclude that each charge sustained by the Hearing Committee is supported by substantial evidence.

The Hearing Committee's findings of negligence on more than one occasion, incompetence on more than one occasion and, as to each of the seven patients, the ordering of unwarranted tests are amply

911 N.Y.S.2d 186

supported by record evidence.¹ Based upon his review of the medical records of the patients at issue, Stephen Moshman, a board-certified physician in the field of internal medicine, testified in detail as to petitioner's failure to obtain proper patient histories and to adequately perform and document

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physical examinations. He further explained that petitioner's medical records with respect to each of the patients revealed a pattern of solely stating a diagnostic conclusion with little or no elaboration of symptoms, history or follow-up and unaccompanied by any physical findings.² According to Moshman, since the missing information was critical to proper patient care and treatment, petitioner's omissions in this regard deviated significantly from accepted medical standards of care. Evidence was also presented that petitioner misread tests concerning patients B, C, E and F, neglected to make appropriate referrals and failed to follow-up and adequately address a number of critical issues, such as patient A's potential cardiac problems, patient C's breast abnormality, patient E's significant hypercholesterolemia ³ and patient F's torn meniscus. The Hearing Committee concluded that, with respect to each of the seven patients, petitioner failed to provide treatment in a rational, systematic and comprehensive manner.

Moshman also concluded, and the Hearing Committee found, that petitioner ordered multiple diagnostic tests for each patient, often without first performing a preliminary work-up, that were not medically justified.⁴ Furthermore, some of these tests were repeatedly ordered by petitioner, despite the fact that the initial tests yielded normal results and the patients' symptoms had not changed. Of particular import was the fact that petitioner ordered relatively invasive nerve conduction tests for each of the seven patients without performing a complete neurological examination and in the absence of any physical findings in the patients' medical records indicating the need for such a procedure. Relatedly, the Hearing Committee concluded that, given that petitioner was treating most of the

77 A.D.3d 1214

seven patients for neurological problems, his admitted failure to perform a complete neurological examination on any of these patients constituted...