Ross v. State Board for Professional Medical ConductRoss v. State Board for Professional Medical Conduct
Petitioner, an orthopedic surgeon, was charged by respondent in an original and amended statement of charges with 26 specifications of misconduct in violation of various subdivisions of
Petitioner and the Bureau of Professional Medical Conduct each sought review of the Hearing Committee‘s decision by the Administrative Review Board for Professional Medical Conduct (hereinafter ARB). Upon review, the ARB affirmed the Hearing Committee‘s findings and, further, sustained the charge of moral unfitness and modified the penalty by revoking petitioner‘s license to practice medicine. Petitioner thereafter commenced this proceeding pursuant to
In this regard, the record reflects, among other things, that during his residency at the Hospital for Joint Diseases, petitioner was suspended from his duties as a fourth-year orthopedic resident for a period of five weeks (December 26, 1988 through February 1, 1989)—a fact that petitioner failed to disclose on his April 11, 1989 application for privileges at that hospital.1
Similarly, petitioner was served with a statement of charges in February 1988 stemming from an incident that occurred during his residency at Kings County Hospital Center in December 1986. Ultimately, a censure and reprimand was imposed, and this Court upheld that determination in November 1990. Nonetheless, petitioner failed to disclose such information and/or the resulting malpractice action on, among other things, his March 1989 application for privileges at Winthrop University Hospital, his April 1989 application for appointment at the Hospital for Joint Diseases or his May 1989 application for privileges at Booth Memorial Medical Center. Despite the fact that petitioner plainly was aware of the significance of these omissions, as evidenced by his then attorney‘s letter to a department chair at Winthrop University Hospital in November 1989, as well as letters of admonishment received from that hospital in December 1989 and from Mercy Hospital in May 1990 and a letter he authored attempting to explain his conduct to representatives of Booth Memorial Medical Center in January 1990, such omis
As noted previously, petitioner contends that these were inadvertent errors initially committed by his mother and subsequently perpetuated by his office manager, the latter of whom simply copied the information provided on prior applications. While reluctantly acknowledging that he ultimately is responsible for such misinformation, petitioner argues that the record is bereft of any evidence of intent to mislead the various hospitals and related entities at issue and, more to the point, asserts that he cannot be held responsible for failing to disclose information of which many of the institutions already were aware. We are not so persuaded.
The case law makes clear that fraudulent practice requires “proof of either an intentional misrepresentation or concealment of a known fact, [and] the intent or knowledge element may be inferred from the surrounding circumstances” (Matter of Steckmeyer v State Bd. for Professional Med. Conduct, 295 AD2d 815, 817 [2002]; see Matter of Ostad v New York State Dept. of Health, 40 AD3d 1251, 1253 [2007]). Even accepting that the initial errors were entirely innocent, we agree with the Hearing Committee and the ARB that petitioner‘s perpetuation of that misinformation on subsequent applications—after clearly being notified of such errors and their resulting magnitude—and his utter failure to undertake any effort whatsoever to correct such errors and/or ensure that they were not repeated evidences a willful intent to mislead and deceive the relevant entities. For that reason, we see no reason to disturb the ARB‘s determination as to the charges of fraudulent practice and willfully filing a false report.
We reach a similar conclusion regarding the charge of moral unfitness. To be sure, petitioner‘s conduct here did not implicate patient care. However, even the Hearing Committee characterized petitioner‘s conduct as “unprofessional, irresponsible, intentional, and deliberate” and found that he “lack[ed] the ethical or legal understanding of his responsibility as a physician to the honor of the profession,” noting that petitioner had been “warned a number of times but refused to heed.” Although the Hearing Committee found insufficient proof to sustain this charge, the ARB was free to substitute its judgment and, in so doing, found that petitioner‘s “repeated, deliberate false representations” violated the public trust and demonstrated an
As to the issue of penalty, we cannot say, based upon our review of the record as a whole, that the penalty of revocation is so disproportionate to the underlying offenses as to be shocking to one‘s sense of fairness (see Matter of Braick v New York State Dept. of Health, 13 AD3d 740, 742 [2004]). The fact that patient care was not implicated does not preclude revocation of petitioner‘s license (see Matter of Zharov v New York State Dept. of Health, 4 AD3d 580 [2004])—particularly where, as here, the ARB found that the lack of integrity evidenced by petitioner over a period of years could not be remedied by imposing a lesser sanction, i.e., a probationary period and a few hours of continuing education. Petitioner‘s remaining contentions, including his assertion that the charge that he violated
Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.