YI v. N.Y. Bd. for Prof'l Med. Conduct

210 N.Y.3d 790

226 A.D.3d 1167

In the Matter of Won YI, Petitioner,

v.NEW YORK STATE BOARD FOR PROFESSIONAL MEDICAL CONDUCT, Respondent.

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

Calendar Date: January 10, 2024

Decided and Entered: April 11, 2024

Law Office of Anthony Z. Scher, Rye Brook (Anthony Z. Scher of counsel), for petitioner.

Letitia James, Attorney General, New York City (Jessica Preis of counsel), for respondent.

Before: Clark, J.P., Lynch, Reynolds Fitzgerald, McShan and Powers, JJ.

MEMORANDUM AND JUDGMENT

Lynch, J.

Proceeding pursuant to CPLR article 78 (initiated in this Court pursuant to Public Health Law § 230–c [5]) to review a determination of a Hearing Committee of respondent revoking petitioner’s license to practice medicine in New York.

Petitioner received a license to practice medicine in New York in 2006 and became board certified in the field of radiation oncology. He served most of his medical career as the director of a private radiation oncology practice in Erie County. In 2018, the Bureau of Professional Medical Conduct charged petitioner with 17 specifications of practicing medicine with gross negligence, gross incompetence, negligence on more than one occasion, incompetence on more than one occasion and failure to maintain accurate records, all relating to his care of seven patients between 2009 and 2013. Petitioner answered the charges and denied the specifications. Following an extensive hearing, respondent’s Hearing Committee sustained all but the record-keeping charge against petitioner and revoked his license. Petitioner commenced this CPLR article 78 proceeding in this Court challenging the Committee’s determination. For the reasons that follow, we confirm.

[1, 2] Our review in this proceeding is limited to determining whether the Hearing Committee’s determination is supported by substantial evidence (see Matter of Roberts v. New York State Bd. for Professional Med. Conduct, 215 A.D.3d 1093, 1094, 187 N.Y.S.3d 370 [3d Dept. 2023], lv denied 40 N.Y.3d 907, 2023 WL 8011440 [2023]) – a "minimal standard" that requires "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Haug v. State University of New York at Potsdam, 32 N.Y.3d 1044, 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [2018] [internal quotation marks and citations omitted]). "So long as the evidence meets that standard, we will defer to the credibility determinations made by the Committee" (Matter of Tsirelman v. Daines, 61 A.D.3d 1128, 1129, 876 N.Y.S.2d 237 [3d Dept. 2009] [citations omitted], lv denied 13 N.Y.3d 709, 2009 WL 3379009 [2009]).

[3–8] As a threshold matter, petitioner argues that respondent’s expert – Isamett-in Aral – did not provide competent expert opinion evidence necessary to sustain the charges, claiming that he improperly relied solely on practice guidelines published by professional medical societies to support his opinion that petitioner deviated from the standard of care in his treatment of each of the seven patients at issue. We disagree. In a medical disciplinary proceeding, a finding of negligence is warranted where "a physician failed to exercise the care that a reasonably prudent physician would exercise under the circumstances" (Matter of Bogdan v. New York State Bd. for Professional Med. Conduct, 195 A.D.2d 86, 88, 606 N.Y.S.2d 381 [3d Dept. 1993], appeal dismissed & lv. denied 83 N.Y.2d 901, 614 N.Y.S.2d 381, 637 N.E.2d 272 [1994]; cf. PJI 2:150). Incompetence, which constitutes a separate act of misconduct under the Education Law (compare Education Law § 6530[3], [4], with Education Law § 6530[5], [6]), speaks to the lack of the requisite skill or knowledge to practice medicine, rising to the level of gross incompetence when the deficiency is significant and implicates potentially grave consequences (see Matter of Post v. State of N.Y, Dept. of Health, 245 A.D.2d 985, 986, 667 N.Y.S.2d 94 [3d Dept. 1997]; Matter of Dhabuwala v. Stale Bd. for Professional Med Conduct, 225 A.D.2d 209, 213, 651 N.Y.S.2d 249 [3d Dept. 1996]). Expert medical opinion evidence is required to establish that there was a deviation from accepted practice that caused injury to the patient (see Mazella v. Beals, 27 N.Y.3d 694, 705, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016]). "Generally, the standard of care for a physician is one established by the profession itself" (Spensieri v. Lasky, 94 N.Y.2d 231, 238, 701 N.Y.S.2d 689, 723 N.E.2d 544 [1999]; see Toth v. Community Hosp., 22 N.Y.2d 255, 262, 292 N.Y.S.2d 440, 239 N.E.2d 368 [1968]). As a general premise, clinical practice guidelines do not define a standard of care as to medical negligence, but are utilized to inform a physician’s decision-making process (see Hinlicky v. Dreyfuss, 6 N.Y.3d 636, 645–646 n 4, 5, 815 N.Y.S.2d 908, 848 N.E.2d 1285 [2006]; Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 545, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]).

In his 2018 testimony, Aral referred to guidelines published by Bahman Emani, the National Comprehensive Cancer Network (hereinafter NCCN) and the American College of Radiology (hereinafter ACR) as defining the "standard of care." In particular, he referred to the Emani standards – published 25 or 30 years ago – as being "considered gospel for decades," and explained that the NCCN and ACR guidelines "are fairly descriptive, prescriptive guidelines for what a physician should do in the management of cases in very specific areas," averring that "[w]hen [a doctor] deviate[s] from those, it is considered to fall short of the standard" of care. He also cited the Quantitative Analysis of Normal Tissue Effects in the Clinic (hereinafter QUANTEC) data from 10 years ago as a standard of care in the field of radiation oncology. For his part, petitioner’s expert, Michael Kos, testified that he also considered the Emani guidelines and the QUANTEC analysis in making decisions as to radiation doses.

[9] None of the referenced guidelines are in the record. Even so, we can take judicial notice of the practice guidelines included on the websites of both the NCCN and the ACR. The ACR preamble describes the guidelines as "an educational tool," explaining that "[p]ractice [p]arameters and [t]echnical [s]tandards are not inflexible rules or requirements of practice and are not intended, nor should they be used, to establish a legal standard of care" (ACR–ARS Practice Parameter for Radiation Oncology, Preamble, available at https://www.acr.org/Clinical-Resources/Practice-Parameters-and-Technical-Standards [last accessed Mar. 20, 2024]; see Iowa Med. Soc’y v. Iowa Bd. of Nurs- ing, 831 N.W.2d 826, 836 [Iowa S.Ct. 2013]; Stanley v. McCarver, 204 Ariz. 339, 344 n 4, 63 P.3d 1076, 1081 n 4 [Ariz.Ct. App. 2003], mod 208 Ariz. 219, 92 P.3d 849 [2004]). The NCCN guidelines are described as "the recognized standard for clinical direction and policy in cancer care and are the most thorough and frequently updated clinical practice guidelines available in any area of medicine" (National Comprehensive Cancer Network, https://www.nccn.org/guidelines/guidelines-process/about-nccn-clinical-practice-guidelines [last accessed Mar. 20, 2024]). The guidelines "provide recommendations based on the best evidence available at the time they are derived. Because new data are published continuously, it is essential that the NCCN Guidelines also be continuously updated and revised to reflect new data and clinical information that may add to or alter current practice standards" (National Comprehensive Cancer Network, https:/www.nccn.org/guidelines/guidelines-process/about-nccn-clinical-practice-guidelines [last accessed Mar. 20, 2024]).

By the qualifying language set forth in each document, the ACR and NCCN guidelines provide contemporary informed treatment recommendations that are flexible and subject to adjustment – but do not purport to define an authoritative standard of care (see Diaz v. New York Downtown Hosp., 99 N.Y.2d at 644–545, 754 N.Y.S.2d 195, 784 N.E.2d 68). Even so, and notwithstanding Aral’s express identification of these guidelines as the standard of care, it is evident from his detailed testimony as to each patient that he utilized the guidelines as "one link in the chain" of his evaluation process (Hinlicky v. Dreyfuss, 6 N.Y.3d at 647, 815 N.Y.S.2d 908, 848 N.E.2d 1285 [internal quotation marks omitted]; see Leberman v. Glick, 207 A.D.3d 1203, 1205, 171 N.Y.S.3d 677 [4th Dept. 2022]).

Aral is board certified in radiation oncology and licensed to practice medicine in New York, with over 30 years of experience. At the time of his testimony, he was the chief of the radiation oncology unit at a multi-specialty medical practice in Nassau County. Utilizing this experience, and after reviewing the medical records of each of the seven patients at issue, he provided a factual basis for his opinions as to both negligence and incompetence going far beyond a mere recitation of the guidelines (see Spensieri v. Lasky, 94 N.Y.2d at 239, 701 N.Y.S.2d 689, 723 N.E.2d 544). Thus, we conclude that he provided competent expert testimony that the Hearing Committee could rely on in its determinations. Although petitioner’s testimony contradicted Aral’s and petitioner criticized Aral for his "very rigid opinion[s]" and "oversimplification of [the] practice of medicine," the Hearing Committee was free to credit Aral’s opinions over those of petitioner. A more specific review of the pertinent testimony as to each patient follows.

[10] The Hearing Committee determined that petitioner’s treatment of patient A was both grossly negligent and grossly incompetent. Patient A, who had been diagnosed with metastatic breast cancer, was treated by petitioner from September 13, 2012 until late December 2012, when she passed away. She had previously completed a course of whole brain radiotherapy in January 2012 totaling 5,000 centigray (hereinafter cGy).¹ Aral explained that the objective of an initial patient...