Addei v. State Board for Professional Medical Conduct

Crew III, J.

(concurring in part and dissenting in part). As to the majority’s conclusion that “this case is one of those rare instances where revocation is ‘so incommensurate with the offense as to shock one’s sense of fairness,’ ” we respectfully dissent. The Hearing Committee of respondent State Board for Professional Medical Conduct (hereinafter Committee) sustained the specification of moral unfitness based upon petitioner’s “totally inappropriate” behavior with respect to employees C, D, E and H and, further, sustained the specifications of fraudulent practice and filing false reports/applications for privileges based upon the false information provided by petitioner on two separate applications for hospital privileges. With respect to such applications, the Committee expressly *554found that petitioner’s conduct was “knowing! ], willful[] and [undertaken with] an intent to deceive.” Given these specific findings which, as. the majority observes and we agree, are amply supported by the record, we simply cannot conclude that the penalty imposed is shocking to one’s sense of fairness.

Although each case indeed must be judged upon its own facts, this Court previously has held that the willful making of false statements on applications for hospital privileges or employment is, standing alone, sufficient to justify the penalty of revocation (see, Matter of Sung Ho Kim v Board of Regents, 172 AD2d 880, 882, lv denied 78 NY2d 856; see also, Matter of Moon Ho Huh v New York State Dept, of Health, Bd. for Professional Med. Conduct, 256 AD2d 933, 934 [revocation found to be an appropriate penalty for physician’s fraudulent conduct]; Matter of Glassman v Commissioner of Dept, of Health of State of N. Y., 208 AD2d 1060, 1061, lv denied 85 NY2d 801 [pattern of false statements on hospital applications sufficient to uphold penalty of revocation]). Such conduct plainly demonstrates petitioner’s willingness to place his own interests above those of his patients or prospective employers (see, Matter ofJadoo v DeBuono, 235 AD2d 644, 645).

Moreover, even accepting the majority’s finding that “there is no direct evidence that patient care was impacted,” the case law makes clear that “there is no legal requirement that injury be established before disciplinary sanctions can be imposed” (Matter of Corines v State Bd. for Professional Med. Conduct, 267 AD2d 796, 800, lv denied 95 NY2d 756; see, Matter of Dolin v State Bd. for Professional Med. Conduct, 274 AD2d 862, 864; Matter of Schoenbach v DeBuono, 262 AD2d 820, 823, lv denied 94 NY2d 756). Stated another way, “[t]he fact that petitioner’s acts and omissions did not cause any actual harm to his patients does not render the penalty excessive” (Matter of Moon Ho Huh v New York State Dept, of Health, Bd. for Professional Med. Conduct, supra, at 934). Based upon the totality of the specifications sustained against petitioner, and taking into consideration the pattern of inappropriate conduct established by the record, we are of the view that revocation of petitioner’s license was in all respects proper (see, e.g., Matter of Saldanha v DeBuono, 256 AD2d 935, 936).

Accordingly, we would confirm the Committee’s determination and dismiss the petition.