Physician Discipline in New York

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Overview

- Office of Professional Medical Conduct (OPMC): The Office of Professional Medical Conduct (OPMC) is the arm of the New York State Department of Health responsible for investigating all complaints of professional misconduct brought against a physician or physician's assistant and when warranted, prosecuting those cases. Its employees are made up of investigators and medical coordinators, who investigate and evaluate the complaints, attorneys who oversee and prosecute the cases, administrative law judges who preside over hearings and support staff. In recent years, OPMC received an increased budget of 67% in conjunction with the Physician Discipline Reform Legislation which was used to hire approximately 100 new staff employees including investigators, attorneys, administrative law judges and medical coordinators.

Since 1993 to the present there has been a large increase (approximately 77%) in the number of disciplinary actions taken which has been attributed to the 1992 revision in the law which significantly streamlined the process. Complaints made to OPMC come from a variety of sources including patients and family members, state agencies, hospitals, other physicians, the news media, etc. OPMC receives more than 6,000 complaints annually. In 2000 OPMC received a total of 6106 complaints. Over 61% of the complaints received in 2000 (3,724) came from the public. Approximately 3,000 or 60% of these complaints were closed after an initial review by OPMC revealed either a lack of jurisdiction (i.e., the complaint even if true, would not prove professional misconduct such as a billing dispute, miscommunication, or personality conflict) or a technical violation (i.e., failure to forward medical records to a patient or physician) which can be easily remedied by telephone intervention.

The Public Health Law 230

In the case of Foong v Empire the Appellate Court has ruled favorably concerning our firm's contention that a cause of action exists seeking monetary damages for a party filing a bad faith report to the state licensing board (OPMC). The lower court and appellate court in Foong v Empire ruled that a physician has a private civil action against an individual or in this case an entity (HMO) for reporting a physician in bad faith to the state licensing board (OPMC).

The remaining complaints are then forwarded to one of six regional office in New York (Buffalo, Rochester, Syracuse, Troy, New York City, and New Rochelle) for further investigation. Most of the remaining complaints were administratively closed after an investigation by OPMC found no evidence or insufficient evidence to support a charge of misconduct.

- Board For Professional Medical Conduct (BPMC): After the investigation of the complaint is completed by OPMC, the remaining cases that have not been dismissed will then be submitted by OPMC investigators to board members of a separate entity, the State Board for Professional Medical Conduct (BPMC). BPMC consists of physicians and lay members who sit on panels of two physicians and one lay person and serve as objective reviewers of fact in cases of alleged professional misconduct.

The physician members are appointed by the Commissioner of Health and the Board of Regents based on recommendations made by medical and professional societies and are representative of New York State in terms of medical specialty, race/ethnicity, and geography. The lay members are appointed by the Commissioner of Health with the approval of the Governor and the Board of Regents.

BPMC members primarily sit on two panels: investigation committees to determine whether the case should be dismissed, whether charges should be brought against the physician, or whether further investigation is needed and hearing committees which adjudicate cases when charges are brought to determine whether the charges have been sustained and to issue penalties where warranted.

The Investigation

OPMC investigators are primarily persons with health care (i.e., nurses) or investigatory background (i.e., former police officers or insurance investigators). In investigating complaints involving issues of clinical practice, they consult with medical coordinators (N.Y.S. licensed physicians) who assist in determining whether the complaint warrants further investigation and ultimately whether the case merits submission to BPMC's investigation committee.

Investigators have a number of tools at their disposal to obtain information after a complaint is received. These include obtaining medical records, obtaining other documents pursuant to subpoena issued by the Board (such as Hospital quality assurance or personnel files of the physician under investigation), interviewing witnesses, colleagues, and the physician under investigation (if he/she consents), reviewing a database of the malpractice history of the physician under investigation, and surveillance in limited instances.

When clinical issues are the basis of the complaint, the physician's office records and hospital records will be reviewed to determine whether there is any basis to conclude that professional misconduct has occurred. Investigators will routinely review a physician's Hospital quality assurance files to determine whether the physician under investigation has other cases that might create a pattern of deficient conduct.

There are approximately 48 definitions of professional misconduct in New York which are found in Statute (Public Health law) and regulations. The primary categories of misconduct that result in prosecution and sanctions against a physician are:

• Being convicted of a crime under New York State Law, Federal Law, or the law of another jurisdiction which would constitute a crime in New York State.
• Practicing fraudulently, beyond authorized scope, with gross incompetence, with gross negligence on a particular occasion, or negligence and incompetence on more than one occasion.
• Practicing while impaired by drugs, alcohol, physical disability, or mental disability.

Practicing while impaired by substance abuse or mental impairment can be dealt with in a non-disciplinary fashion in the event that an affected physician seeks treatment and no patient harm has occurred. According to the law in New York, under the above circumstances, a physician can temporarily surrender his/her license (which is confidential and not considered a disciplinary action) while treatment is sought, placing the license in an inactive status. Thereafter, a physician can petition to have his license restored upon a showing that he or she is no longer incapacitated to practice medicine.

The Committee for Physician's Health (CPH) is an organization established by The Medical Society of the State of New York (MSSNY) to help the impaired professional seek treatment and rehabilitation as an alternative to the disciplinary process. The organization helps physicians affected by substance abuse, addictions, mental health problems, and cognitive disorder. It relies on a variety of in-patient and out-patient detoxification, rehabilitation, and psychiatric care in addition to attendance at self-help or peer support groups.

Physicians who seek assistance from CPH will not be reported to OPMC by CPH as long as they agree to participate, stay with the program, are helped by the treatment and do not present an immediate danger to the public.

Investigation Committees

If after the investigation is completed, the OPMC investigator and medical coordinator believe that misconduct has occurred, the case will be presented to an investigation committee made up of BPMC board members (two physicians and one lay person) who will determine whether a case should be dismissed, go to hearing, or be dealt with through an administrative warning or consultation (non-disciplinary actions). If for example, it is determined by the investigation committee that there is substantial evidence of a professional misconduct of a minor or technical nature, the committee can recommend:

• Administrative warning: A written notice sent to the physician outlining the problems identified and recommending appropriate remedial procedures.
• Educational consultations: An expert consultation requiring that the physician meet with a medical expert or panel of experts to review problems and receive direction on how to correct them.

In limited instances, the investigation committee may decide that a physician poses an imminent risk to the public health and recommend that the State Health Commissioner summarily suspend him or her from practice prior to a formal hearing. Cases are presented to these panels every two to three weeks.

Hearing Committee

More frequently the investigation committee will recommend that a case be referred for a hearing when they believe that the physician committed professional misconduct. In those cases, an OPMC attorney (prosecutor) will draft specific charges describing the substance of the alleged misconduct, and setting forth the material facts but not the evidence by which the charges are to be proved. Thereafter, the majority of cases are settled by consent order (similar to a plea bargain). The remaining cases result in a hearing required to occur within 60 days fro the time the physician is served with the charges.

A hearing panel consists of two physicians and a lay person drawn from the Board for Professional Medical Conduct. An Administrative law judge rules on evidentiary issues and the case is prosecuted by an OPMC attorney. Testimony and evidence are presented by attorneys for the state and the physician, and the hearing panel issues a final decision based on a preponderance of the evidence.

The hearing panel may dismiss all or some of the charges or issue a penalty. Penalties which may be imposed by the Hearing Committee for a physician found guilty of professional misconduct include:

• Censure and Reprimand (a severe warning)
• Suspension of License - wholly, for a fixed period of time or until the individual completes therapy or a course of treatment, or partially, until the individual completes retraining in the area to which the suspension applies.
• Probation according to specified terms
• Revocation of License
• Fine of up to $10,000 per violation
• Community Service up to 500 hours
• Education or Training

In 2000, 357 disciplinary actions (penalties) was imposed against physicians, with 47 resulting in license revocation against the physician licensee.

Either side, OPMC or the physician, is permitted to appeal the decision of the hearing committee to an Administrative Review Board (ARB). The ARB is made up of five members (three physicians and two lay persons) of the Board for Professional Medical Conduct who are appointed by the Governor for three-year terms. The ARB hears appeals from the Department of Health or the physicians and issues a final order. If there is an appeal, the penalty imposed by the hearing committee is no longer stayed based on a recent change in the law. The ARB must render a decision within 45 days. A physician then has the ability to appeal the final decision to the New York State Courts after his or her administrative remedies have been exhausted.