Poulard v. Commissioner of Health of State of N.Y.

• Decision Date: 10 March 1994
• Citation: 202 A.D.2d 756,608 N.Y.S.2d 726
• Parties: In the Matter of Jean B. POULARD, Petitioner, v. COMMISSIONER OF HEALTH OF the STATE OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 726

608 N.Y.S.2d 726

202 A.D.2d 756

In the Matter of Jean B. POULARD, Petitioner, v. COMMISSIONER OF HEALTH OF the STATE OF NEW YORK, Respondent.

Supreme Court, Appellate Division Third Department.

March 10, 1994.

Bower & Gardner (Daniel V. Sollecito, of counsel), New York City, for petitioner.

G. Oliver Koppell, Atty. Gen. (Raymond J. Foley, of counsel), New York City, for respondent.

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

CREW, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c[5] to review a determination of a Committee on Professional Conduct of the State Board for Professional Conduct which, inter alia, suspended petitioner's license to practice medicine in New York for one year.

In January 1992, the Bureau of Professional Medical Conduct (hereinafter BPMC) charged petitioner, a surgeon, with two specifications of misconduct. Specifically, petitioner was charged with practicing with gross negligence (see, Education Law § 6530[4] and failing to maintain adequate records (see, Education Law § 6530[32]. These charges, which were supported by 25 separate allegations of misconduct, ¹ stemmed from petitioner's care and treatment of patient A, a 28-year-old retarded male.

The record discloses that patient A was admitted to Queens Hospital Center on November 20, 1987 and diagnosed as suffering from a Morgagni hernia, a condition in which part of the intestine protrudes into the chest cavity through a defect in the diaphragm. Petitioner thereafter became involved in patient A's care and, on November 25, 1987, participated in the surgery to repair patient A's hernia. During the course of the operation, however, it became apparent that the original diagnosis had been incorrect and that the tissue previously thought to be a section of bowel penetrating the diaphragm was in fact a colonic interposition, i.e., a segment of bowel which had been surgically substituted for patient A's esophagus some years earlier. (Patient A's esophagus suffered severe damage following patient A's ingestion of lye when he was 8 years old.) Attempts were then made to restore the colonic interposition, which had been severed during the course of the operation, and the surgery was concluded with the expectation that additional surgery would be required to reconnect patient A's digestive system.

Petitioner continued to treat patient A following the surgery, but patient A's behavior problems complicated his recovery. It appears that patient A repeatedly disconnected his feeding tube which, in turn, compromised his nutritional intake and caused patient A to lose a substantial amount of weight. Indeed, the record reflects that patient A lost approximately one third his body weight, dropping from a weight of 175 pounds in November 1987 to 110 pounds in February 1988. Patient A ultimately died on February 27, 1988, with the cause of death listed as pneumonia.

Following petitioner's disciplinary hearing the Hearing Committee sustained both specifications of misconduct, including all but 6 of the 25 allegations contained therein. As to the penalty, the Hearing Committee imposed a one-year suspension of petitioner's license to practice medicine, said suspension stayed indefinitely, and a fine of $10,000. Petitioner thereafter commenced this CPLR article 78 proceeding pursuant to Public Health Law § 230-c(5) to review the determination at issue.

Initially, we are of the view that the record as a whole contains substantial evidence to support the Hearing Committee's findings that petitioner acted as patient A's attending physician during the relevant time period (see, Matter of Rudell v. Commissioner of Health of State of N.Y., 194 A.D.2d 48, 50, 604 N.Y.S.2d 646; cf., Matter of La Pointe v. Sobol, 185 A.D.2d 462, 463, 586 N.Y.S.2d 334). Turning to the individual specifications of misconduct, it is well settled that this court's inquiry is limited to whether the determination of guilt by a preponderance of the evidence is supported...