Matter of Tsirelman v. Danes
(3rd Dept., decided 4/9/2009)
In December 2007, the Hearing Committee of the NYS Health Department's Office of Professional Medical Conduct revoked the medical license of Gary Tsirelman and fined him $100,000, having sustained 51 of 69 charges of professional misconduct, including ones alleging that he conducted a fraudulent medical practice, willfully made or filed false reports, ordered treatment not warranted by the patient's condition and moral unfitness. Gary Tsirelman is also a New York attorney who maintains a "no-fault collection law" practice in metropolitan New York and whose website borrows liberally from a May 2004 article published in The American Lawyer. Gary Tsirelman, P.C., was the firm that represented the plaintiff medical provider in East Acupuncture PC v. Allstate Ins. Co., decided by the Second Department on February 17, 2009 (tolling provision of 11 NYCRR § 65-3.9[c] applies to both assignors and assignees).
The professional medical misconduct charges were based primarily upon Mr. Tsirelman's submission of numerous no-fault bills to Allstate Insurance Company for invasive nerve destruction procedures (NDPs) that were neither medically necessary nor actually performed. Tsirelman admitted that he had never performed NDPs, but blamed the charges on the billing service that had prepared the bills for his medical clinic. He claimed that the billing service had misread his notes concerning the noninvasive "synaptic" procedure he had regularly performed, assigned an additional billing code for the much more expensive NDPs and then, without his knowledge or authorization, used a stamp bearing his signature to certify those bills. The Hearing Committee found Tsirelman's explanation to be unbelievable, held him responsible for the content of his bills and concluded that he knew that all of the identical billings were false and that he had submitted them to Allstate with the intent to deceive.
Mr. Tsirelman commenced an Article 78 proceeding to challenge his MD license revocation. The Third Department, Appellate Division, has original jurisdiction of such proceedings, and reviews administrative findings such as the one the OPMC's Hearing Committee made in this matter to determine whether they are supported by substantial evidence. In doing so in this matter, the Third Department confirmed the Hearing Committee's findings of Tsirelman's guilt on 41 of the 69 charges, sustaining both his MD license revocation and the $100,000 fine.
With respect to Tsirelman's claims that he did not know others were using his signature stamp and that double billings to Allstate were just a mistake, the Third Department held:
The Third Department also rejected Tsirelman's contention that he was denied his rights to a fair hearing and due process by the Committee's admission and consideration of patient records that were uncertified and allegedly incomplete:The record confirms that petitioner, who has owned a number of clinics over the years, denied ever having or using a signature stamp, yet other evidence showed that his stamp was regularly used to bill for his services. He also testified that, had he ever seen any of the bills for NDPs, he "would certainly not have authorized them." Yet, after he graduated from law school and was admitted to the practice of law in New York, he transferred ownership of his clinic to another physician and, acting as the attorney representing his former clinic in no-fault arbitration proceedings, he sought to collect bills, similar to those at issue here, charging for NDPs and bearing his signature stamp. Further, petitioner initially denied any association with the clinic prior to purchasing it, yet he later conceded that he had previously worked for it for several years. Citing this and other evasive, fabricated and inconsistent testimony, the Committee found that petitioner's claims, including that the double billing amounted to no more than a mistake, completely lacked credibility.
Applying the standard that physicians are ultimately responsible for the accuracy of their bills, and given the findings of petitioner's long-term relationship with the clinic and his complete lack of credibility, the Committee could infer his knowledge that the bills were false, rather than merely inaccurate, and that he had willfully intended to mislead and deceive the insurer (see Matter of Ross v State Bd. for Professional Med. Conduct, 45 AD3d 927, 929 , lv denied 10 NY3d 701 ; Matter of Ostad v New York State Dept. of Health, 40 AD3d at 1253; Matter of Corines v State Bd. for Professional Med. Conduct, 267 AD2d 796, 799-800 , lv denied 95 NY2d 756 ; Matter of Post v State of N.Y. Dept. of Health, 245 AD2d 985, 987 ). Thus, the evidence presented and the inferences reasonably flowing therefrom amply support the sustained charges of fraudulent medical practice, filing false reports and moral unfitness.
Finally, the Third Department did annul 10 of the originally sustained 51 of 69 charges against Tsirelman, finding that, with respect to the billed NDPs, "the evidence does not support the Committee's conclusion that petitioner ordered treatment not warranted by the patients' condition." Even without those 10 charges, however, the Third Department noted that "because the Committee stated that petitioner's fraudulent practice of medicine standing alone warranted the revocation of his license and the fine imposed, the exclusion of those charges does not require reconsideration of the discipline administered here[.] * * * Viewing only the remaining sustained charges, we are not able to say that the penalty imposed is so disproportionate to petitioner's fraudulent behavior that it shocks our sense of fairness[.]"Inasmuch as "the strict rules of evidence do not apply in administrative proceedings" (Matter of Sundaram v Novello, 53 AD3d 804, 806 , lv denied 11 NY3d 708  [internal quotation marks and citation omitted]), petitioner was required to show that the lack of certification infected the entire proceeding with unfairness in order to establish a deprivation of due process (see id. at 806-807). This he did not do. As for the assertion that the records were incomplete, petitioner argues that the complete treatment records for his patients would have reflected that he never ordered NDPs or listed them as having been performed. We note, however, that the only documents in the record which listed the NDPs were the bills. Thus, additional treatment records showing their absence would have been redundant and irrelevant to the issues of his knowledge and intent. The record also shows that, with one exception discussed below, the Committee did not sustain any charge where additional patient records could have been exculpatory. The Committee fully explored the discrepancies in the records that were provided and gave petitioner every opportunity to submit additional records (see Matter of Sundaram v Novello, 53 AD3d at 807).
With the Third Department's finding that the "sustained charges of fraudulent medical practice, filing false reports and moral unfitness" against Mr. Tsirelman were "amply supported" by evidence before the OPMC's Hearing Committee, it remains to be seen whether such findings can or will form the basis of discipline against him under Rule 8.4 and other provisions of New York's new Rules of Professional Conduct applicable to lawyers that went into effect on April 1, 2009. Most of the provisions of the "new" Rule 8.4 existed under Disciplinary Rule 1-102 of the now replaced New York Code of Professional Responsibility.