
    Judith Zucker, Petitioner, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
   Determination unanimously confirmed and petition dismissed without costs. Memorandum: Petitioner, a licensed physical therapist, was charged with patient neglect for refusing to allow an 82-year-old nursing home patient to go to the bathroom before starting his therapy treatment session. At a hearing conducted pursuant to 10 NYCRR part 81, the undisputed evidence showed that petitioner refused to allow the patient to be excused for toileting; that she insisted he had to stand at the parallel bars before he could be excused; and that the patient urinated while being assisted to stand at the parallel bars. Petitioner claimed, however, that her refusal was a mere error in judgment because she assumed that the patient had been toileted before going to therapy and because he was undergoing a bladder training program.

The Administrative Law Judge’s decision to discount the opinion of petitioner’s expert to the effect that the refusal to allow toileting was a mere error of professional judgment was supported by the record. The expert stated unequivocally that her opinion was predicated upon an assumption that the patient was under a bowel and bladder training program. She testified that such a program would be initiated by a physician or the nursing staff, but conceded that the patient’s records and charts contained no evidence that such a program had been instituted. She merely assumed that the patient was under such a program because certain facts in his medical records were consistent with such a program. Moreover, petitioner made no mention at the time she was interviewed following the incident or during her hearing testimony that she considered bladder training as a basis for refusing to allow the patient to go to the bathroom.

It is uncontroverted that the nursing home had a policy of permitting patients to go to the bathroom whenever they expressed a need. One of the therapy aides testified that she was trained to follow this procedure, and the petitioner had followed this procedure on prior occasions. Under the circumstances, the report of the Administrative Law Judge, which was adopted by the Commissioner, finding that petitioner’s refusal to excuse the patient in a timely fashion constituted patient neglect (see, 10 NYCRR 81.1 [c]), was supported by substantial evidence and should be confirmed (Matter of Alexander v Axelrod, 125 AD2d 665; Matter of Jones v Axelrod, 118 AD2d 1011). (Article 78 proceeding transferred by order of Supreme Court, Erie County, Fudeman, J.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.  