Rho v. Ambach

• Decision Date: 10 November 1988
• Citation: 144 A.D.2d 774,534 N.Y.S.2d 758
• Parties: In the Matter of Yong-Myun RHO, Petitioner, v. Gordon M. AMBACH, as Commissioner of Education of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 758

534 N.Y.S.2d 758

144 A.D.2d 774

In the Matter of Yong-Myun RHO, Petitioner, v. Gordon M. AMBACH, as Commissioner of Education of the State

of New York, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Nov. 10, 1988.

Rappaport & Frost (Joseph Frost, of counsel), New York City, for petitioner.

Robert Abrams, Atty. Gen. (John O'Grady, of counsel), Dept. of Law, Litigation Bureau, New York City, for respondents.

Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

YESAWICH, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a[4] ) to review a determination of respondent Commissioner of Education which censured and reprimanded petitioner.

Petitioner, licensed to practice medicine in New York since 1970 and a deputy chief medical examiner for the New York City Medical Examiner's office since 1972, was charged by the State Board for Professional Medical Conduct (hereinafter SBPMC) with professional misconduct within the meaning of Education Law § 6509 (2) in connection with the performance of two autopsies. SBPMC alleged that, in 1981, petitioner's recording of the circumstances surrounding the death of decedent J on the death certificate under the heading of cause of death was inappropriate, and in 1982, petitioner allegedly made seven fundamental errors while investigating and reporti decedent B's gunshot wound. A hearing was held before a committee of SBPMC, following which the hearing committee determined that the charges as to decedent J had not been sustained, but at the same time found that petitioner had twice acted negligently or incompetently with respect to the autopsy of decedent B, namely, in neglecting to recite in the autopsy report the reasons why the express order in which decedent had worn his clothing could not be ascertained and that a sodium rhodizonate test conducted by petitioner was improperly and inadequately performed, documented and interpreted. Despite these findings, the hearing committee concluded that petitioner had not practiced medicine with negligence or incompetence on more than one occasion and recommended no disciplinary action be taken.

The Commissioner of Health passed this recommendation on to respondent Board of Regents (hereinafter the Board). However, a Regents Review Committee "took a more serious view", finding that in addition to the two errors cited by the hearing committee, petitioner had also inadequately described decedent B's bullet wound. Deeming these three instances to be negligence or incompetence on more than one occasion, the Regents Review Committee unanimously recommended that petitioner be censured and reprimanded, a recommendation which the Board adopted and respondent Commissioner of Education acted upon. Petitioner commenced this proceeding challenging the Board's determination and the Commissioner's order entered thereon.

Education Law § 6509(2) defines as professional misconduct:

Practicing the profession fraudulently, beyond its authorized scope, with gross incompetence, with gross negligence on a particular occasion or negligence or incompetence on more than one occasion (emphasis supplied).

The primary issue raised in this proceeding is whether three instances of negligence in the course of one autopsy represents negligence "on more than one occasion".

Since the process of deciding whether a particular medical practice or procedure has been adequately performed and documented entails an...