Stein v. Board of Regents of University of State of N.Y.
| Decision Date | 03 January 1991 |
| Citation | 564 N.Y.S.2d 585,169 A.D.2d 857 |
| Parties | In the Matter of Sheldon STEIN, Petitioner, v. BOARD OF REGENTS OF the UNIVERSITY OF the STATE OF NEW YORK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bower & Gardner (Nathan L. Dembin, of counsel), New York City, for petitioner.
Robert Abrams, Atty. Gen. (Yvonne Powe, of counsel), New York City, for respondent.
Schaum & Wiener (Martin Schaum, of counsel), Garden City, for NYS Soc. of Orthopaedic Surgeons, amicus curiae.
Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.
Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Education Law § 6510-a[4] to review a determination of the Commissioner of Education which revoked petitioner's license to practice medicine in New York.
Petitioner, a physician specializing in orthopedics, was ultimately charged with 27 specifications of professional misconduct by the Department of Health. These charges pertain to petitioner's treatment, between January 1983 and August 1986, of seven patients referred to as patients A through G. The seven patients' cases represented orthopedic care given by petitioner for fractures of the ankle (patients B, E), arm (patients C, D) and hip (patient F), and for elective surgery on the ankle and wrist (patients A, G). Following a hearing before the Hearing Committee of the State Board for Professional Medical Conduct, it was recommended that all or part of seven of the specifications be sustained, including five specifications of gross negligence and/or gross incompetence, and one specification each of negligence and/or incompetence and inadequate recordkeeping. 1 The specifications of which petitioner was found guilty generally emanated from his allegedly faulty performance of a surgical procedure known as "open reduction and internal fixation", which consisted of the placement of plates and/or pins to patients' bones to repair fractures.
As a result of this misconduct, the Hearing Committee recommended that petitioner's license to practice medicine be revoked. The Commissioner of Health agreed with the conclusions and recommendations of the Hearing Committee. However, a divided Regents Review Committee, while agreeing with the findings of guilt, recommended a lesser penalty which included probation. Nonetheless, respondent voted to revoke petitioner's license, and such penalty was embodied in an order executed by the Commissioner of Education. Petitioner thereafter commenced this proceeding to review the determination.
Initially, we disagree with petitioner's contention that the subject determination is not supported by substantial evidence. Petitioner's arguments in this regard center chiefly around challenging the qualifications and objectivity of the Department of Health's expert witness, Dr. Paul Clark. Nonetheless, as pointed out by respondent, Clark's qualifications and extensive experience as a practicing orthopedist during the period when the misconduct allegedly occurred were amply stated and explored at the hearing. The fact that petitioner's expert disagreed with Clark's conclusions merely created a credibility determination for respondent to resolve as the ultimate fact finder in disciplinary cases (see, Education Law § 6510-a[2]; Matter of Di Marsico v. Ambach, 48 N.Y.2d 576, 581-582, 424 N.Y.S.2d 107, 399 N.E.2d 1129; Matter of Reisner v. Board of Regents of State of N.Y., 142 A.D.2d 22, 26-27, 535 N.Y.S.2d 197). It is well settled that "a determination * * * may be supported by substantial evidence despite conflicting testimony as to the charges" (Matter of Holmstrand v. Board of Regents of Univ. of State of N.Y., 71 A.D.2d 725, 726, 419 N.Y.S.2d 223). Here, Clark's testimony, combined with other evidence, adequately established petitioner's guilt with respect to the sustained charges. As for petitioner's...
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