IN RE: Michael P. MOORE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Michael P. MOORE, Petitioner, v. STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

Decided: February 25, 1999

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Wood & Scher (Anthony V. Scher of counsel), Scarsdale and Hinman, Straub, Pigors & Manning P.C. (Bartley J. Costello III of counsel), Albany, for petitioner. Eliot Spitzer, Attorney-General (Raymond J. Foley of counsel), New York City, for respondent.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to Public Health Law § 230-c [5] ) to review a determination of the Hearing Committee of respondent which, inter alia, revoked petitioner's license to practice medicine in New York.

Petitioner, a surgeon specializing in the field of breast surgery, was charged by the Bureau of Professional Medical Conduct (hereinafter BPMC) with 43 specifications of professional misconduct in connection with his treatment of 10 patients (hereinafter referred to as patients A through J) 1 from July 1988 to April 1996.

At a hearing before a Hearing Committee of respondent conducted on 20 days between December 1996 and July 1997, petitioner, numerous patients, the father of patient A and various experts testified.   The Hearing Committee sustained 17 factual allegations as constituting the practice of medicine with negligence but did not consider the conduct so egregious as to rise to the level of gross negligence.   The factual allegations sustained with respect to its finding of negligence were based upon errors in judgment which it found did not meet accepted standards of practice since they were based upon petitioner's “unjustifiable beliefs that surgeries scheduled to excise breast lesions had been successful”.   In its view, these beliefs were based upon “unreasonable interpretations of pathology reports and diagnostic test results in a manner which led [petitioner] to ignore or minimize other significant findings”.   The Hearing Committee further found that petitioner engaged in acts constituting the fraudulent practice of medicine and the making of a false report based upon its conclusion that petitioner altered a medical record.   As to those specifications charging petitioner with inadequate recordkeeping, all such specifications, other than those which remained unchallenged, were not sustained since the manner in which records were maintained by Memorial Sloan-Kettering Cancer Center (hereinafter the Center) warranted a recommendation for further investigation by the State Department of Health.   Upon the revocation of petitioner's license to practice medicine, this proceeding was commenced.

 Our review is limited to a determination of whether the individual specifications of misconduct are supported by substantial evidence (see, Matter of Adler v. Bureau of Professional Med. Conduct, State of New York, Dept. of Health, 211 A.D.2d 990, 622 N.Y.S.2d 609;  Matter of Poulard v. Commissioner of Health of State of N.Y., 202 A.D.2d 756, 758, 608 N.Y.S.2d 726, lv. denied 84 N.Y.2d 805, 618 N.Y.S.2d 7, 642 N.E.2d 326), deferring all issues of witness credibility and the weight to be accorded to the evidence presented to the exclusive province of the Hearing Committee (see, Matter of Adler v Bureau of Professional Med. Conduct, State of New York, Dept. of Health, supra, at 991, 622 N.Y.S.2d 609).   Upon that basis, we separately address the allegations and charges sustained regarding each patient.

Patient A

BPMC alleged that petitioner failed to follow up or treat patient A after excising a mass from her breast in October 1991, failed to treat or manage her condition after an excisional biopsy in March 1992, never advised her of the need for aggressive treatment between October 1991 and June of 1992 and failed to maintain an accurate patient record.   Patient A died in October 1993 of metastatic disease.

 In assessing the charge that petitioner failed to follow up or treat patient A after the October 1991 surgery, the Hearing Committee relied upon the patient's medical records and the testimony of BPMC expert, Ronald Forlenza, who stated that appropriate treatment should have included a follow-up mammogram sooner than four months.   In so finding, it did not accept petitioner's contention that his recommendations for follow-up treatment were based upon his consultation with Peter Rosen, a respected pathologist with the Center, who advised him that the findings of cancer contained in the original pathology report were, while still significant, less ominous and permitted the option of watchful observance.   Concluding that there was no testimony that the original report was ever amended or that petitioner recorded Rosen's conclusions, the Hearing Committee found the four-month delay unresponsive.

Based upon the letter from petitioner to patient A, obtained by BPMC from patient A's father and placed in evidence, precisely explaining the review by Rosen of the pathology report and the options of appropriate follow-up care as testified to by petitioner, we find that there was no basis to discredit petitioner's contention that he had communicated by telephone with patient A and specifically discussed the options which he outlined in such letter.   Notably, the chart, certified on three separate occasions by the Center to be complete, included neither a copy of the letter actually obtained from patient A's father nor the progress notes concerning follow-up care which were testified to by petitioner.   As the reliability of patient charts was undermined by the Center's recordkeeping practices, the absence of documentation cannot be determinative.   Moreover, as the preeminent criticism offered by Forlenza was that it was inappropriate for petitioner to have waited four months after the excision to have a mammogram performed, we note that with respect to at least one other patient about which this expert testified, he opined that follow-up mammograms should occur between three to six months after surgery for them to be useful.   Hence, given the inconsistency in this expert's testimony, a four-month hiatus could not be deemed a deviation from accepted practice.

 As to the second allegation of negligence pertaining to petitioner's failure to follow up on findings resulting from the March 17, 1992 excisional biopsy or to manage patient A's condition, again we must disagree.   Such allegation, as well as the third allegation of failing to advise patient A of the need for “appropriate” treatment, was sustained due to the testimony of patient A's father.   Upon our review of his testimony, we find that he acknowledged that he could have been unaware of conversations that patient A had with petitioner.   In light of the record evidence pertaining to the inadequacy of patient A's records, we cannot conclude that the absence of such notations in the chart concerning conversations he had with patient A and her gynecologist about treatment options should be definitive.   As to the allegation that petitioner failed to discuss with patient A the results of her pathology report, we note that petitioner specifically proved, by the introduction of other patient's pathology reports, that his habit was to make comments directly on the report.   Since the second page of patient A's pathology report could not be produced, there existed no basis to sustain the charge.   Finally, with respect to the charge that petitioner failed to accurately advise patient A of the need for further treatment, we find that the Hearing Committee failed to acknowledge that the expert upon which it relied changed his opinion to coincide with the treatment options presented by petitioner.   Accordingly, the allegations of negligence pertaining to patient A are not supported by substantial evidence.

Patient B

Allegations pertaining to patient B related to treatment provided to her by petitioner between January 1994 and October 1994, precipitated by a suspicious looking lesion in her right breast as seen on a December 1993 screening mammogram.   As a result of petitioner's inability to palpate the lesion during physical exam, he ordered a stereotactic biopsy.   When the radiologist was unable to complete the procedure ordered, a biopsy was performed under ultrasound guidance.   The pathology report revealed cancer.

Petitioner's treatment plan reflected that a needle localization was to be done prior to surgery scheduled for a wide excisional biopsy of the right breast and axillary lymph node dissection to determine whether the cancer had metastasized.   On the date of such procedure, petitioner contended that he and his team, a fellow and a resident, were able to palpate the area which they believed to be the lesion seen on the screening mammogram.   For that reason, petitioner contended that he canceled the scheduled needle localization.

 Upon these facts, the Hearing Committee determined that petitioner could not be found negligent for believing that he was able to palpate the lesion prior to surgery.   However, it believed that the procedure was forgotten rather than affirmatively canceled.   Notably, the Center does not preserve the log books which may have indicated whether the procedure was canceled.   Moreover, the preoperative findings indicated by petitioner's resident in the operative report confirm petitioner's testimony that it was believed that the lesion was palpable.   Forlenza agreed that not doing a needle localization procedure upon finding that a previously nonpalpable lesion was now palpable, would constitute a “judgment call”.   Hence, we cannot conclude that substantial evidence exists to support a charge of negligence for the failure to perform the procedure.

Following the January 1994 excision, the pathology report did not show evidence of cancer, notwithstanding the finding of cancer in the lesion after the performance of a biopsy nine days earlier.   To petitioner, this meant that either the prior biopsy removed the entire tumor instead of a piece of it, that the tissue sample sent up for frozen section during the operation was too small or that petitioner missed it.   While petitioner was charged with the failure to order diagnostic tests to confirm that he had removed the tumor, the record reflects that not only was a mammogram ordered within the three-month period previously testified to by Forlenza as falling within the appropriate time frame, but such mammogram confirmed the absence of the tumor.

 In finding no evidence to support the Hearing Committee's finding alleging a failure to order appropriate diagnostic tests to confirm that the tumor had been removed, we next determine whether petitioner inappropriately ordered chemotherapy and radiation treatment upon the finding that the axillary dissection performed at the time of the January 1994 excision revealed that the cancer had metastasized.   As the predominant concern, petitioner contended that he ordered chemotherapy-a course of treatment confirmed to be appropriate by Forlenza.   Although Forlenza concluded that radiotherapy would not be appropriate thereafter due to the later finding that the cancerous tumor actually remained in the patient's breast, the record indicates that after chemotherapy was completed and before radiotherapy was commenced, the follow-up mammogram was ordered.   It was only when the mammogram did not reveal the presence of the tumor that radiotherapy commenced.   Upon this basis and the lack of evidence by any expert that this course of treatment, upon the findings available at that time, was inappropriate, we find insufficient evidence to support the findings of negligence pertaining to petitioner's care of patient B.

Patient C

 As to patient C, we find that the charges of negligence predicated upon petitioner's failure to order a timely mammogram to confirm whether he had successfully removed a left breast nodule which had shown up on a mammogram, as well as his failure to properly follow up, monitor, or manage patient C's condition, are supported by substantial evidence by the testimony of the patient, Forlenza and the pathology findings.   Forlenza testified that if the lesion observed on the mammogram was suspicious and if the pathology report found only benign tissue, appropriate management would have included a mammogram approximately six months subsequent to the surgery.   Although petitioner contends that he advised this patient to return for a mammogram in one year, the failure to maintain follow-up procedures for patients in this risk group, resulting in a mammogram 16 months thereafter, supports the finding of negligence.

Patient D

 In March 1989, patient D underwent surgery to remove a right breast mass and bilateral microcalcifications seen on a mammogram of March 1, 1989.   Petitioner incorrectly believed that he removed the mass and the microcalcifications through one incision due to their close proximity.   Petitioner was charged with failing to inform the patient that he had not removed such mass and of the consequent need for additional surgery.   The Hearing Committee sustained the charge based on the pathology report which should have, in its opinion, indicated to petitioner that the surgery was not successful.   Upon our review, we find substantial evidence to support the Hearing Committee's findings that petitioner did not have a tenable reason to conclude that the mass had been removed and had, accordingly, failed to inform the patient of this possibility.

 As to petitioner's alleged failure to follow up postoperatively or manage patient D's condition, it appears that relevant records concerning such follow-up care were not provided until the time of the hearing.   Based thereon, as well as upon Forlenza's admission that upon petitioner's belief that the operation was successful, the care followed by him was appropriate, we cannot conclude that substantial evidence supported a finding of negligence on this charge.   The Hearing Committee's reliance upon the failure of the patient's record to reflect the treatment of watchful observation cannot be supported in light of the Center's inadequate recordkeeping which permeated this proceeding.   Accordingly, other than the finding of negligence based upon a failure to inform, we must vacate the remaining charge with respect to patient D.

Patient E

 Although numerous allegations were made with respect to petitioner's care of patient E, only two findings were sustained.   As to the charge that petitioner had made fraudulent alterations to patient E's hospital record, upon our review of the relevant portions of such record, fully acknowledging the practice of maintaining portions of outpatient records separate from the main records, we find that the cumulative testimony of Murray Brennan (Chairman of the Department of Surgery), Forlenza, Denise Oswald (a patient representative), Cynthia McCollum (hospital administrator) and patient E, provides the requisite substantial evidence to support the charges.   The finding premised upon petitioner's insensitive remark to this patient appears undisputed.

Patient F

 Patient F was treated by petitioner from March 1994 to November 1994.   Although there were allegations concerning the treatment plan devised by petitioner, the only allegation sustained concerned the failure to maintain proper records which primarily focused on a discharge summary that inaccurately described patient F's condition.   It was undisputed that the discharge summary contained significant inaccuracies and that it was petitioner's ultimate responsibility for insuring the accuracy of the record.   Upon that basis, sufficient evidence was presented to sustain the charge.

Patient G 

In June 1988, patient G had a surgical biopsy performed by another physician which demonstrated extensive intraductal carcinoma and lobular carcinoma in the right breast.   In July 1988, petitioner reexcised the site of the biopsy and performed an axillary lymph node dissection and found no additional cancer.   Allegations sustained by the Hearing Committee pertained to the failure by petitioner to appropriately monitor the patient after the July 1988 procedure as well as his conduct following the discovery of a lump in May 1992, wherein petitioner unsuccessfully attempted to perform a needle aspiration biopsy of a lump and delayed proper treatment until August 1992.

 As to petitioner's failure to appropriately monitor patient G for tumor reoccurrence after the July 1988 procedure, we find a lack of substantial evidence to support the charge since the chart from which such allegations derived was proved, at the hearing, to be incomplete.   When a second and substantially different certified chart was accepted into evidence, appropriate follow-up care was demonstrated.   Moreover, the record revealed that the patient was also being seen by oncologists in New Jersey whose records indicated that mammograms were, in fact, performed during the relevant period.

 As to the charge alleging an unsuccessful needle aspiration biopsy of a lump and the inappropriate delay of treatment until August 1992, we find that notwithstanding a degree of fault attributable to the patient, the nondefinitive cystology report, the patient's history, the testimony of Forlenza, as well as that of the patient, provided the requisite substantial evidence to support the finding that a “high degree of suspicion of malignancy” should have been acknowledged by petitioner and that he should have accordingly altered his course of treatment.

Patient H

 The allegation ultimately sustained with respect to patient H pertained to a pathology report received after an excisional biopsy of a mass in August 1994.   Petitioner contended that he telephoned the patient about one week thereafter and told her that the report indicated the presence of a combination of cancerous and precancerous cells.   The Hearing Committee credited the opinion of petitioner's expert, David Kinne, that such statement was inaccurate and constituted a departure from accepted standards of practice since the report made no reference to precancerous cells.   However, it did not find that petitioner intentionally sought to mislead patient H, but was instead attempting to soften the impact of a significant positive finding of disease.   While petitioner's motivation was deemed reasonable in light of the patient's profile, it did not excuse the provision of false information to a patient.   As the pathology report made no reference to the presence of precancerous cells, we must conclude that substantial evidence was presented to support the finding that petitioner deliberately misled the patient.

 With no contention by petitioner that the Center's maintenance of medical records for patient H was inadequate or incomplete, we find sufficient evidence to support the finding that petitioner failed to maintain adequate records.   There were no notes pertaining to treatment of the patient subsequent to the August 1994 surgery or a note to reflect the fact that he had referred this patient for radiation.   Hence, upon the testimony of the patient, as well as experts Kinne and Forlenza, buttressed by the record itself, we decline to disturb those findings.

Patient J

 The sustained charges allege that after an operation in December 1995 to remove a breast mass, petitioner falsely informed patient J that he had removed the mass and that it was benign.   Moreover, it was alleged that notwithstanding a mammogram in April 1996 which revealed that the mass remained in patient J's breast, petitioner improperly delayed informing the patient of these results.   Upon our review of patient J's testimony, as well as that of Forlenza and relevant medical reports and records, we find that not only was sufficient evidence presented to support the charges sustained but also that the Hearing Committee properly rejected the testimony of petitioner's nurse and petitioner regarding their efforts to communicate these findings to the patient.

 As those issues raised for the first time on appeal cannot be subject to appellate review (see, Matter of Abraham v. Board of Regents of State of N.Y., 216 A.D.2d 812, 629 N.Y.S.2d 299;  Matter of Puff v. Jorling, 188 A.D.2d 977, 981, 592 N.Y.S.2d 107), we next address whether the presence of attorneys for the Center and patient B at the hearing violated petitioner's right to a confidential proceeding.   Noting that “ ‘ * * * an administrative determination may only be annulled where prejudice so permeates the underlying hearing as to render it unfair’ ” (Matter of Singh v. New York State Bd. for Professional Med. Conduct, 235 A.D.2d 958, 960, 652 N.Y.S.2d 672, quoting Matter of Jean-Baptiste v. Sobol, 209 A.D.2d 823, 824, 619 N.Y.S.2d 355), we do not find that the requisite proffer was made to demonstrate that the presence of these attorneys had any prejudicial impact so as to permeate or affect the determination rendered (see, Matter of Nehorayoff v. Fernandez, 191 A.D.2d 833, 835, 594 N.Y.S.2d 863).

Having reviewed and rejected the remaining contentions, we hereby modify the determination rendered by annulling so much thereof as found petitioner guilty of paragraphs A.1, A.2, A.3, B.1, B.3, B.5, B.6, D.3 and G.2 of the nineteenth specification and remit this matter to respondent for reconsideration of the penalty to be imposed.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of paragraphs A.1, A.2, A.3, B.1, B.3, B.5, B.6, D.3 and G.2 of the nineteenth specification;  petition granted to that extent, and matter remitted to respondent for redetermination of the penalty imposed on the remaining specifications;  and, as so modified, confirmed.

FOOTNOTES

1.   Allegations of misconduct with respect to patient I were withdrawn and are not at issue in this proceeding.

PETERS, J.

CARDONA, P.J., MERCURE, SPAIN and CARPINELLO, JJ., concur.

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