                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    517220
________________________________

In the Matter of ROBERT V.
   CATTANI,
                    Petitioner,
      v                                      MEMORANDUM AND JUDGMENT

NIRAV R. SHAH, as Commissioner
   of Health, et al.,
                    Respondents.
________________________________


Calendar Date:    October 14, 2014

Before:    Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                              __________


      Costello, Shea & Gaffney, LLP, New York City (Michael J.
Morris of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, New York City (Todd
A. Spiegelman of counsel), for respondents.

                              __________


Rose, J.

      Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to Public Health Law § 230-c [5]) to review a
determination of respondent Administrative Review Board for
Professional Medical Conduct which revoked petitioner's license
to practice medicine in New York.

      Respondent Hearing Committee of the State Board for
Professional Medical Conduct sustained 10 charges of professional
misconduct against petitioner, a physician specializing in
cosmetic surgery. The charges include gross negligence,
incompetence and failing to maintain proper records, all largely
stemming from petitioner's postoperative treatment of four
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patients. Upon petitioner's application for review of the
Hearing Committee's determination, respondent Administrative
Review Board for Professional Medical Conduct (hereinafter ARB)
sustained the charges and revoked his license to practice
medicine. Petitioner then commenced this CPLR article 78
proceeding to annul the ARB's determination.

      Where, as here, the Hearing Committee's determination is
reviewed by the ARB, our own review "is limited to whether the
[ARB's determination was] arbitrary and capricious, affected by
an error of law or an abuse of discretion" (Matter of D’Souza v
New York State Dept. of Health, 68 AD3d 1562, 1563 [2009]
[internal quotation marks and citations omitted]; accord Matter
of Poulose v Shah, 96 AD3d 1205, 1206 [2012], appeal dismissed 19
NY3d 1015 [2012]; see Matter of Roumi v State Bd. for
Professional Med. Conduct, 89 AD3d 1170, 1171-1172 [2011]). "We
will not disturb the ARB's determination if it has a rational
basis and factual support in the record" (Matter of Poulose v
Shah, 96 AD3d at 1206 [citations omitted]). Resolution of issues
of credibility and the weighing of testimony, expert or
otherwise, is solely within the province of the ARB (see Matter
of Sarro v State of N.Y. Dept. of Health Admin. Review Bd. for
Professional Med. Conduct, 113 AD3d 968, 970 [2014]; Matter of
Mehulic v State Bd. for Professional Med. Conduct, 107 AD3d 1066,
1068 [2013], appeal dismissed 22 NY3d 911 [2013]; Matter of Rigle
v Daines, 78 AD3d 1249, 1252 [2010], appeal dismissed 16 NY3d 825
[2011]).

      Guided by those precepts, we cannot agree with petitioner's
contentions that the ARB misread the record and that the charges
against him are not sustained by the evidence. The Bureau of
Professional Medical Conduct (hereinafter BPMC) presented
evidence that petitioner made egregious errors in judgment by
failing to properly screen patient A to determine if he was an
appropriate candidate for surgery and failing to properly address
the serious complications of bleeding and hypovolemic shock that
occurred after the procedure. The direct result was that patient
A experienced renal failure, nearly died and had to endure a
lengthy hospital stay. BPMC also presented evidence that
petitioner caused and then failed to properly address an
abdominal fistula in patient B, again endangering the patient's
                              -3-                517220

life and resulting in both a lengthy hospital stay and continuing
painful complications. With respect to patient C, the credited
factual and expert testimony established that petitioner failed
to determine whether the patient's vision was intact prior to
releasing her following surgery on her eyelids. As a direct
result, the patient lost vision in her right eye. Petitioner's
claim, that he checked the patient's vision and that she never
experienced a retrobular hematoma, was rejected as false. As for
patient D, the credited evidence established that petitioner
failed to take appropriate steps to address a serious infection
when confronted with the patient's complaints of excruciating
pain following breast augmentation surgery.

      In sustaining the charges, the ARB relied, in part, on the
Hearing Committee's conclusion that petitioner had fabricated his
medical records and testified falsely in the interest of self-
preservation. Our review of this record reveals no basis for
disturbing these credibility determinations. Accordingly, we
find that the ARB's conclusions have factual support in the
record and we will not disturb its determination sustaining the
charges against petitioner (see Matter of Mehulic v State Bd. for
Professional Med. Conduct, 107 AD3d at 1068; Matter of Poulose v
Shah, 96 AD3d at 1206; Matter of Sidoti v State Bd. for
Professional Med. Conduct, 55 AD3d 1162, 1164-1166 [2008]).

      Our review of the ARB's penalty determination "is generally
limited to whether it is so disproportionate to the offense that
it shocks one's sense of fairness" (Matter of Huang v
Administrative Review Bd. for Professional Med. Conduct, 114 AD3d
1103, 1105 [2014] [internal quotation marks and citation
omitted]; see Matter of Mehulic v State Bd. for Professional Med.
Conduct, 107 AD3d at 1068; Matter of Singh v New York State Dept.
of Health Bd. of Professional Med. Conduct, 74 AD3d 1391, 1393
[2010]). Here, the ARB considered lesser penalties, but
determined that revocation was appropriate in view of the
evidence of petitioner's inability to appropriately respond to
emergencies and postoperative complications. Given the ARB's
determination that petitioner's gross negligence and incompetence
seriously endangered his patients, and that he had fabricated his
records and testified falsely, we do not view the penalty of
revocation as shocking to one's sense of fairness. We have
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considered petitioner's remaining contentions and determined them
to be without merit.

     Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
