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D'Ambrosio v. Department of Health of the State of New York2/10/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
Appellant-doctor challenges the discipline imposed on him by the Board For Professional Medical Conduct, based on his voluntary surrender of his license in Nevada, after malpractice charges there. We conclude that the Appellate Division correctly upheld the administrative determination.
Facts
In 1987, appellant obtained his medical license in New York. He has not been registered as a physician in this State since December 1992, and has never practiced here. From 1993 until 2000, he was an orthopedic surgeon in Las Vegas, Nevada. In 2000, he relocated his practice to California and allowed his Nevada license to lapse. Appellant alleges that at the time he relocated to California, he had no intention of returning to Nevada.
On March 22, 2002, the Nevada Investigative Committee of the Board of Medical Examiners issued a ten-count complaint alleging professional malpractice in appellant's treatment of seven patients between 1995 and 2000. Appellant was charged both with "continual failure to exercise the skill or diligence or use the methods ordinarily exercised under the same circumstances by physicians in good standing practicing in the same specialty or field" (Nev Rev Stat § 630.306 ), and with malpractice as "evidenced by claims settled against a practitioner" (Nev Rev Stat § 630.301 ). Nevada law required that a complaint contain a "short and plain statement of the matters asserted"; if requested, "a more definite and detailed statement must be furnished" (Nev Rev Stat § 233B.121 ).
The complaint identified appellant's seven former patients as "A" through "G." The complaint alleged that following surgery, patient A suffered complications including cauda equina syndrome; that following surgery, patient B suffered extensive edema with ischemia resulting in post-operative quadriparesis and bone graft impingement; and that following surgery and placement of an interior plate in patient E, appellant recommended further surgery for post-operative complications and patient E was later diagnosed as an asymmetrical quadriplegic. For these patients, the complaint set forth the date of surgery, that each patient had filed a medical malpractice action with the Nevada Medical Dental Legal Screening Panel and the case number of each action, that each of these actions had been settled and the settlement amount (Patient A: $675,000; Patient B: $1,927,000; Patient E: $3,500,000).
For patients C, D and G, the complaint identified the dates of surgery and pre-operative diagnosis. For patient F, the complaint identified the date of surgery, pre-operative diagnosis, type of surgery performed and resulting complications.
In addition to the opportunity to request a more definite and detailed statement, Nevada law provided that the " pportunity must be afforded all parties to respond and present evidence and argument on all issues involved" (Nev Stat Rev § 233B.121 ). Appellant made no request for more details and no response to the allegations of the complaint. Instead, on April 17, 2002under oath in his attorney's office in Californiaappellant signed a Voluntary Surrender Of License To Practice Medicine In The State Of Nevada While Under Investigation (see Nev Admin Code § 630.240). In the document, he acknowledged that he was aware that he was under investigation for violations of the Medical Practice Act, that he "voluntarily, absolutely, and irrevocably surrender his license to practice medicine in the state of Nevada," and that his surrender was subject to section 630.240 of the Nevada Administrative Code. Section 630.240 states that "if the Board acc
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