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THE REVOCATION OF PETITIONER’S MEDICAL LICENSE WAS CONFIRMED; TWO DISSENTERS ARGUED THERE WAS INSUFFICIENT EVIDENCE OF THE REQUIRED STANDARD OF CARE, ESPECIALLY AS THE STANDARD APPLIES TO TERMINALLY ILL PATIENTS WHO CONSENT TO AGGRESSIVE TREATMENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, confirmed the revocation of petitioner’s medical license by the New York State Board for Professional Medical Conduct. The dissenters argued the publications used by respondent’s expert to assess the quality of care provided by petitioner were advisory in nature and did not apply to the aggressive care petitioner offered to terminally ill patients:

From the dissent:

… [T]he findings of the Committee were premised entirely on the erroneous understanding of respondent’s expert, Isamettin Aral, that professional societies establish the accepted standard of care. The record reflects that, on cross-examination, petitioner’s counsel asked Aral the question, “what do you mean when you say standard of care?” In response, Aral testified, “[w]e have accepted guidelines that are published by multiple societies, they include our board, [the] American College of Radiology or [the] American Board of Radiology, [and] national comprehensive cancer networks and these are fairly descriptive, prescriptive guidelines for what a physician should do in the management of cases in very specific areas. When you deviate from those, it is considered to fall short of a standard.”

Although we acknowledge that petitioner pursued what appears to have been aggressive care with the goal of prolonging the lives of patients A-G and was in accordance with their wishes, the record lacks any reference to pervasive standards outlining physician obligations relative to the extraordinary circumstances of terminally ill patients with advanced, late-stage disease. As Aral’s testimony is unsupported by an evidentiary foundation and the Bureau of Professional Medical Conduct offered no other proof, we would find the Committee’s determination to be fatally flawed, fundamentally unfair and affected by an error of law. Matter of Yi v New York State Bd. for Professional Med. Conduct, 2024 NY Slip Op 01955, Third Dept 4-11-24

Practice Point: In an administrative proceeding which resulted in the revocation of petitioner’s medical license, two dissenter’s argued the evidence used by respondent’s expert to determine the required standard of care was only advisory in nature and therefore insufficient, especially as that standard was applied to the consensual aggressive treatment of terminally ill patients.

 

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