Conteh v. DainesConteh v. Daines
Petitioner, a physician licensed to practice in New York, was charged by the Bureau of Professional Medical Conduct with 26 specifications of professional misconduct in violation of
Initially, we are unpersuaded by petitioner‘s contention that he was denied his rights to a fair hearing and due process by the ARB‘s and Committee‘s consideration of, and reliance on, his allegedly coerced confession and subsequent written statements obtained in connection with the criminal investigation into petitioner‘s medical practice. Notably, petitioner‘s motion to suppress such evidence at the criminal trial was denied upon a finding by the federal court that his statements were not coerced. Moreover, it is well settled that a petitioner in an administrative proceeding is “not entitled to all of the due process rights afforded a defendant in a criminal proceeding” (Matter of Kosich v New York State Dept. of Health, 49 AD3d 980, 982 [2008]; see Matter of Block v Ambach, 73 NY2d 323, 333 [1989]; Matter of Miles v Nyquist, 60 AD2d 133, 136 [1977], lvs dismissed 44 NY2d 644, 789, 853 [1978]).
Next, inasmuch as this proceeding is to review the determination of the ARB, petitioner‘s contention that the Committee‘s determination was not supported by substantial evidence is misplaced (see Matter of Maglione v New York State Dept. of Health, 9 AD3d 522, 524 [2004]). In that regard, our review of an ARB determination “is limited to whether the decision is arbitrary and capricious, affected by an error of law or an abuse of discretion,” thereby distilling our inquiry “to whether the ARB‘s determination has a rational basis and is factually supported” (Matter of Khan v New York State Dept. of Health, 286 AD2d 562, 563 [2001] [internal quotation marks and citations omitted]). Applying that standard, we do not find adequate grounds to annul the ARB‘s determination. The testimony at the hearing reveals that petitioner, in contravention of the minimum standard of care of a reasonably prudent physician, repeatedly prescribed habit-forming controlled substances without obtaining patients’ medical histories or performing appropriate physical examinations or evaluations necessary for
To the extent that petitioner contends that the board certified physician in internal medicine and rheumatology presented by the Bureau of Professional Medical Conduct was unqualified to render expert testimony, we find that he possessed the requisite skill, training, education, knowledge and experience from which it could be inferred that he was qualified to render an opinion with regard to petitioner‘s alleged misconduct (see Matter of Schoenbach v DeBuono, 262 AD2d 820, 822 [1999], lv denied 94 NY2d 756 [1999]; Matter of Enu v Sobol, 208 AD2d 1123, 1124-1125 [1994]). Any contention that such testimony was unreliable presented issues of credibility and weight which are solely for the administrative factfinder to resolve (see Matter of Wahba v New York State Dept. of Health, 277 AD2d 634, 635 [2000]; Matter of Schoenbach v DeBuono, 262 AD2d at 821). Petitioner‘s further contention that he was prejudiced by the absence of any testimony from the subject patients is undermined by his own failure to exercise his right to subpoena such patients (see
Turning to the charge of fraudulent practice of medicine, there is a rational basis in the record for the conclusion that petitioner abused his privilege to prescribe controlled substances in light of the evidence that petitioner, without a proper examination or inquiry of the patients, lacked a sound medical reason to regularly prescribe controlled substances to them (see Matter of Moyo v Ambach, 136 AD2d 811, 812 [1988]). We reach the same conclusion with respect to the charge of moral unfitness to practice medicine, which requires “a showing that the physician violat[es] the trust the public bestows on the medical profession and/or violat[es] the medical profession‘s moral standards” (Matter of Prado v Novello, 301 AD2d 692, 694 [2003] [internal quotation marks and citations omitted]). Given the evidence presented, as well as the inferences to be drawn therefrom, we find such charge to be amply supported (see id.).
Finally, given petitioner‘s lack of insight into the severity of his misconduct, the fact that he profited from such misconduct
We have reviewed petitioner‘s remaining contentions, including that the ARB erred in not remitting the matter for further testimony, and find them to be without merit.
Mercure, Rose, Malone Jr. and Kavanagh, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.