Fodera v. DainesFodera v. Daines
Petitioner, a vascular surgeon licensed to practice medicine in New York, was charged in 2008 by the Bureau of Professional Medical Conduct (hereinafter BPMC) with 17 specifications of professional misconduct in violation of various subdivisions of
At BPMC‘s request, the Administrative Review Board of Professional Medical Conduct (hereinafter ARB) reviewed the Committee‘s determination and affirmed the dismissal of all charges related to the fraudulent practice of medicine and to patient A. However, the ARB overturned the Committee‘s determination on two specifications of charges, which the ARB now sustained, finding that petitioner had committed professional misconduct as defined in
Our review of the ARB‘s determination overturning the Committee‘s decision on two charges is limited to whether it was affected by an error of law, arbitrary and capricious or an abuse of discretion (see Matter of Arnett v New York State Dept. of Health, 69 AD3d 1001, 1002 [2010], lv denied 14 NY3d 707 [2010]), i.e., it will not be disturbed if it is supported by record facts and has a rational basis (see Matter of Sidoti v State Bd. for Professional Med. Conduct, 55 AD3d 1162, 1164 [2008]). The Committee made the following findings of fact, as relevant to this proceeding, which the ARB adopted and petitioner does not contest. Petitioner had surgical privileges at SIUH, whose Executive Committee of Medical and Dental staff recommended not renewing in 2002 for various reasons; as SIUH never took action on that recommendation or abided petitioner‘s request for a hearing to which she was entitled, petitioner‘s privileges to admit patients and perform surgery continued at that time, undiminished. Consequently, the ARB affirmed the dismissal of all charges related to that recommendation.
However, in February 2004, SIUH sent petitioner notice that it had summarily suspended her privileges for violating restrictions on her clinical privileges. In response, petitioner hired an attorney and formally requested a hearing on that suspension, which was effective immediately. At the initial hearing on that suspension on February 26, 2004—following negotiations—it was agreed on the record that the suspension would be held in abeyance during the hearings and appeal process, i.e., until a final determination, in exchange for petitioner not exercising any of her privileges at SIUH (e.g., admissions, consult, surgery, etc.). An understanding was placed on the record that holding the suspension in abeyance on that day (the 22nd day of her suspension) would obviate petitioner‘s obligation to report it to
At the heart of the two instant professional misconduct charges upheld by the ARB are petitioner‘s answers on hospital applications that she subsequently submitted. In May 2005, she submitted an application for reappointment to the medical staff at St. Vincent‘s, answering “no” to the question “[have] your medical staff appointment or clinical privileges ever been terminated, revoked, suspended, refused, reduced, limited or not renewed in any other hospital or health care institution or is such action pending?” (Emphases added.) She also left blank the attached section where “full details” were requested if the question were answered affirmatively. Thereafter, SIUH advised St. Vincent‘s by letter that petitioner‘s request for appellate review of the SIUH Executive Committee‘s decision upholding the summary suspension had not yet occurred and, thus, the agreement (holding the suspension in abeyance in exchange for not exercising privileges) remained in effect until those review procedures were concluded.
Then, in an application for appointment to the medical staff at Victory Memorial in March 2006, petitioner omitted any reference to her affiliation with SIUH and responded “no” to a question inquiring whether her clinical privileges “have . . . ever been, or are . . . currently in the process of being denied, revoked, suspended, reduced, limited, placed on probation, not renewed, or voluntarily relinquished, limited or reduced” (emphases added). Thereafter, in April 2006, the SIUH Board of Trustees notified petitioner that her suspension had been upheld, a final determination for which there was no further right of intrahospital appeal.
Given the foregoing, the ARB‘s determination to overturn the Committee and sustain the two charges of professional misconduct was fully supported in the record, had a rational basis and was not improvident (see Matter of Arnett v New York State Dept. of Health, 69 AD3d at 1002). As the ARB concluded, the Committee‘s factual findings that, prior to submitting the applications at issue, petitioner (1) was notified by SIUH of its summary suspension, (2) exercised her right to request a hearing thereon, (3) participated with counsel in a hearing at which an agreement was reached for the suspension to be held in abeyance in exchange for her voluntary surrender of all privileges at
The ARB was not required to credit or accept petitioner‘s proffered explanations, excuses or denials regarding her actions, as she now suggests (see Matter of Glassman v Commissioner of Dept. of Health of State of N.Y., 208 AD2d at 1061). Rather, the ARB rationally determined that petitioner deliberately filed the relevant applications, knowing of their falsity. This conclusion is particularly apt given that—at the time the two applications for privileges were submitted falsely attesting that no disciplinary action was pending and no privileges were in the process of being suspended or had been voluntarily relinquished at any hospital—petitioner “was then actively participating in ongoing disciplinary hearings” at SIUH (Matter of Ostad v New York State Dept. of Health, 40 AD3d 1251, 1253 [2007]). As with other charges of professional misconduct, petitioner‘s “awareness of the true state of facts at the time [she] gave the false responses was sufficient to support the inference of guilty knowledge” (Matter of Saldanha v DeBuono, 256 AD2d 935, 936 [1998]) and “knowledge . . . may be inferred from the surrounding circumstances” (Matter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d 927, 929 [2007], lv denied 10 NY3d 701 [2008] [internal quotation marks and citation omitted]).
While petitioner testified that she had consulted with counsel regarding how she should answer questions on hospital applications regarding the SIUH suspension proceedings, she admitted that she had not specifically asked counsel how to answer the questions on these two applications (see Matter of Goldberg v Whalen, 273 AD2d 551, 554 [2000], lv denied 95 NY2d 764 [2000]). Her testimony does not demonstrate that she was misled by counsel or that counsel ever incorrectly advised her that the SIUH suspension proceedings were not “pending” or that her SIUH privileges were not “in the process of being” suspended, reduced or limited, or had not been “voluntarily relinquished.” Accordingly, her testimony and proof do not support the challenges now raised to the ARB‘s determination sustaining these charges.
Finally, we are mindful that “the making of false statements on applications for hospital privileges and to licensing boards has a direct bearing on the applicant‘s ability to practice medicine” (Matter of Dolin v State Bd. for Professional Med. Conduct, 274 AD2d 862, 865 [2000], lv denied 95 NY2d 770 [2000]). Upon review, we do not find that the penalty of a stayed two-year suspension with probation is so disproportionate to the offense that it shocks our sense of fairness (see Matter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d at 930).
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.