Chua v. ChassinChua v. Chassin
Whitе, J. 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 Bоard for Professional Medical Conduct which revoked petitioner’s license to practice medicine in New York.
In November 1993, the Office of Professional Medical Conduct (hereinafter OPMC) filed charges of professional misconduct against petitioner, a licensed physician who practiced
Thereafter, due to thе parties’ conflicting interpretations of the Committee’s order, OPMC sought a review of the order by the Administrative Review Board for Professional Medical Conduct (hereinafter the ARB). The ARB sustained the Committee’s findings of misconduct but overruled the penalty it had levied, imposing instead the penalty of revocation of petitioner’s license. Petitioner then commenced this CPLR article 78 proceeding.
At oral argument, petitioner rаised the issue of whether OPMC’s appeal to the ARB was timely. Inasmuch as this issue was not raised at the administrative level, we deem it waived (see, Matter of Colella v New York State Dept. of Envtl. Conservation,
Petitioner next argues that the Committee’s findings are not supported by substantial evidence. Because the Committee’s determination was reviewed by the ARB, the proper standard for review is whether the ARB’s determinatiоn was arbitrary and capricious, affected by error of law or an abuse of discretion (see, Matter of Finelli v Chassin,
The record shows that on July 29, 1993, while petitioner was administering an intravenous mixture of vitamins and minerals to patient A, a 14-yеar-old girl suffering from asthma, she developed a severe allergic reaction, suffered respiratory arrest and died shortly thereafter. OPMC’s еxpert witness testified that there was no indication that patient A required any of these vitamins and minerals and that they should not have been administered to her intravenously considering the elevated risk posed by. her asthmatic condition. He further opined that a reasonably prudent physician would not, as petitioner did, administer drugs with lapsed expiration dates or administer them intravenously where the instructions stated they should not be so administеred. The record further shows that when patient A experienced an anaphylactic reaction, petitioner failed to administer oxygen properly and failed to give her epinephrine which would have reversed the anaphylactic process.
Petitioner’s treаtment of patients B and C also fell below the standards of a reasonably prudent physician in that, even though there was no medical necеssity, he administered streptomycin and gentamicin to both of them. In the case of patient B, petitioner also failed to perform audiometry studies to determine if her hearing was being damaged by these drugs. He also administered intravenous mixtures of vitamins and minerals to these patients with no indicаtion they required such medications.
In our view this record provides ample support for the ARB’s findings since petitioner’s conscious disregard of the tenets of good medicine was egregious and fell well below the degree of care that a reasonably prudent physician would have exercised under the same circumstances (see, Matter of Bogdan v New York State Bd. for Professional Med. Conduct,
Petitioner has arrayеd several arguments against the penalty of revocation. First, he contends that he never had notice that his qualification to practiсe acupuncture as a physician was in issue. As a consequence, he claims he was denied the
In administrative disciplinary proceedings, a notice is sufficient if the charges contained therein are reasonably specific so as to allow for the preparation of an adequate defense (see, Matter of Block v Ambach,
Finally, petitioner maintains that the penalty of revocation, particularly as it pеrtains to his ability to practice acupuncture as a physician, is excessive. The standard by which we measure the propriety of a penalty imposed upon a physician is whether it is so incommensurate with the offense as to shock one’s sense of fairness (see, Matter of Jean-Baptiste v Sobol,
Mikoll, J. P., Mеrcure, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
Notes
Petitioner’s expert defines homеopathic medicine as involving the administration of vitamins and minerals to attempt to boost the body’s natural defenses and the strength of a patient who is suffering from a chronic and debilitating illness.