Spartalis v. State Bd. for Professional Medical Conduct

• Decision Date: 23 June 1994
• Citation: 613 N.Y.S.2d 759,205 A.D.2d 940
• Parties: In the Matter of Menicos SPARTALIS, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 759

613 N.Y.S.2d 759

205 A.D.2d 940

In the Matter of Menicos SPARTALIS, Petitioner, v.STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

Supreme Court, Appellate Division Third Department.

June 23, 1994.

Wood & Scher(Anthony Z. Scher, of counsel), Scarsdale, and McAloon & Friedman P.C., New York City, for petitioner.

G. Oliver Koppell, Atty. Gen. (Michael S. Popkin, of counsel), New York City, for respondent.

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

MIKOLL, Justice Presiding.

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

In February 1992 a Hearing Committee on Professional Conduct of the State Board for Professional Medical Conduct(hereinafter the Committee) was impaneled pursuant to Public Health Law § 230 to consider 30 specifications of alleged professional misconduct on the part of petitioner, a private physician specializing in vascular surgery in Kings County.These allegations arose out of petitioner's treatment of six patients (herein identified as patients A, B, C, D, E and F).

By a determination and order dated February 19, 1993, the Committee sustained the specifications charging that petitioner had practiced medicine with negligence on more than one occasion in regard to patients A, B, C, D, E and F, had failed to maintain adequate medical records concerning each of these patients, had practiced medicine with gross negligence with respect to patient F, had ordered excessive treatment for patient F and had ordered excessive tests for patient A.Petitioner was also found to have practiced medicine fraudulently with respect to claims in his literature that his own specially formulated DVT-MMTX regime (i.e., deep vein thrombosis multi-modality treatment protocol) had "FDA approval" as well as in connection with misrepresentations made by him on his hospital applications, and lastly with respect to four specifications of willfully filing false reports based on the misrepresentations made by him on his hospital applications.The Committee did not sustain the charges of practicing medicine with incompetence on more than one occasion or practicing medicine with gross incompetence.The Committee recommended a two-year suspension of petitioner's license with all but the first six months stayed, and the following 18 months to be a period of probation with monitoring by a hematologist and with certain record-keeping requirements.

The contesting parties appealed to the Administrative Review Board for Professional Medical Conduct(hereinafter the Board), which issued its determination sustaining the Committee's decision except that it found that petitioner had been guilty of practicing the profession with incompetence on more than one occasion.The Board also overturned the Committee's penalty recommendation and revoked petitioner's license to practice medicine in New York.This CPLR article 78 proceeding (see, Public Health Law § 230-c [5] ensued.

Petitioner's argument that the Board did not have the authority to modify the sanction proposed by the Committee because, while it could disagree with the Committee's determination, it could then only remand the matter to the Committee for further proceedings, is without merit.This court has previously considered and rejected this argument, holding that the relevant statutory provision (Public Health Law § 230-c [4][b] empowering the Board to remand an inappropriate sanction for reconsideration or further proceedings does not prohibit the Board from imposing its own penalty (Matter of Bogdan v. New York State Bd. for Professional Med. Conduct, 195 A.D.2d 86, 90, 606 N.Y.S.2d 381).This court reasoned that the interpretation urged by petitioner is contrary to the intent of the Legislature in its 1992 revision of the physician licensing and disciplinary code, i.e., to expedite proceedings to discipline physicians.To hold otherwise would be to require a remand "each time the Board deemed the penalty imposed by the Committee to be inappropriate"(id.) and that "the delay and expense involved in such a redundant procedure were not envisioned when these revisions were enacted"(id.).Thus, as the administrative construction of the statutory provision is not irrational or irresponsible, deference is due it by this court(see, id.;see also, Matter of Wapnick v. New York State Bd. for Professional Med. Conduct, 203 A.D.2d 728, 611 N.Y.S.2d 41).

Petitioner's contention that the Board did not have the statutory authority to make the new finding that petitioner was guilty of practicing medicine with incompetence on more than one occasion is not persuasive.The...