Post v. State Dept. of Health

• Decision Date: 31 December 1997
• Citation: 245 A.D.2d 985,667 N.Y.S.2d 94
• Parties: , 1997 N.Y. Slip Op. 11,411 In the Matter of Gregory D. POST, Petitioner, v. STATE of New York DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 94

667 N.Y.S.2d 94

245 A.D.2d 985, 1997 N.Y. Slip Op. 11,411

In the Matter of Gregory D. POST, Petitioner, v. STATE of New York DEPARTMENT OF HEALTH et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 31, 1997.

Magavern, Kanaley, Rich & Bencini (George R. Rich, of counsel), Hamburg, for petitioner.

Dennis C. Vacco, Attorney General (Diana L. Carbonell, of counsel), New York City, for respondents.

Before MIKOLL, J.P., and WHITE, YESAWICH, PETERS and CARPINELLO, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c[5] ) to review a determination of respondent Administrative Review Board for Professional Medical Conduct which revoked petitioner's license to practice medicine in New York.

Petitioner, a licensed emergency room physician, was charged with seven specifications of professional misconduct emanating from his treatment of six patients, and allegedly fraudulent statements made on an employment application. Following a hearing, a Hearing Committee of the State Board for Professional Medical Conduct (hereinafter the Committee) found petitioner guilty of practicing medicine negligently on more than one occasion, practicing incompetently on more than one occasion, gross negligence (three specifications, relating to his treatment of patients A, C, and D), gross incompetence (one specification, arising from his treatment of patient A), failing to maintain adequate records of his treatment of patients A and E, practicing medicine fraudulently and willfully making a false report. The Committee directed that petitioner be placed on probation for five years, and that his medical license be suspended for one year pending successful completion of a course of retraining.

Upon petitioner's appeal to respondent Administrative Review Board for Professional Medical Conduct (hereinafter the ARB), the ARB sustained the Committee's findings of misconduct but overturned the penalty, voting instead to revoke petitioner's license. Petitioner then commenced this proceeding seeking annulment of the ARB's determination.

Petitioner's contention that the determination must be annulled because he was denied the effective assistance of counsel at the administrative hearing is meritless. While a physician accused of professional misconduct may choose to retain legal representation to assist in defending against the charges, the constitutional right to effective assistance does not extend to administrative proceedings of this type (see, Matter of Singla v. New York State Dept. of Health, 229 A.D.2d 798, 800, 646 N.Y.S.2d 421, lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502; Matter of Siddiqui v. New York State Dept. of Health, 228 A.D.2d 735, 736, 644 N.Y.S.2d 64, lv. denied 89 N.Y.2d 804, 653 N.Y.S.2d 543, 676 N.E.2d 72).

Turning to petitioner's substantive challenges to the ARB's determination, we are not persuaded that the findings of gross incompetence and gross negligence are unsupported by the record merely because the expert who testified on behalf of respondent State Department of Health did not utter the words "egregious" or "conspicuously bad" when referring to petitioner's deviations from acceptable medical standards (cf., Matter of Spero v. Board of Regents of Univ. of State of N.Y., 158 A.D.2d 763, 764, 551 N.Y.S.2d 352). The...