1. What is the Office of Professional Medical Conduct ("OPMC")?
OPMC is the arm of the New York State Department of Health which is responsible for investigating/prosecuting complaints brought against physicians.
2. Who can make a complaint to OPMC?
Anyone. Disgruntled patients, family members of patients, insurance companies, disgruntled current or former employees, jealous competitors, hospitals, and state agencies are the most frequent sources of OPMC complaints.
3. How many complaints must be made about a physician before OPMC begins an investigation?
One. A single complaint will trigger a surface level analysis of the situation in question. Under the law, the OPMC is required to look into each and every complaint that is filed.
4. Who are the people at OPMC who investigate complaints?
OPMC investigators are generally healthcare professionals such as registered nurses or individuals with investigatory backgrounds such as former police officers and insurance investigators.
5. What penalties may be imposed against a physician if OPMC determines that he is guilty of professional misconduct?
In the least severe cases (where the violation is deemed to be "minor" or "technical" in nature), the penalty may be as small as an Administrative Warning (i.e., a written notice which outlines the problems that have been found and recommendations for a remedial course of action). An administrative warning is non-disciplinary in nature and is not published anywhere online.
If things evolve to the point where a Hearing Committee finds the physician guilty of professional misconduct, the penalties become more severe and will be reported to the National Practitioner Data Bank and reflected on the individual's Physician Profile on the Department of Health's website. The least severe penalty when one is found guilty of professional misconduct is a Censure and Reprimand (i.e., a severe warning that is published for the world to see). A censure and Reprimand may also include the imposition of required community service (up to 500 hours) and continuing medical education (CME) classes. A Hearing Committee may also decide that probation is necessary. Probation includes certain limitations/restrictions being placed on a practitioner's ability to practice medicine. Probation may be imposed for a set period of time, or it may last until certain conditions have been met by the practitioner. The next level of penalty for more serious professional misconduct is a suspension of a practitioner's medical license. When a practitioner's license is suspended, he or she is not allowed to practice medicine for the duration of the suspension. A suspension may be for a certain length of time, or it may be for an indefinite period of time lasting up until criterion laid out by the Hearing Committee are satisfied. For the most serious misconduct, OPMC has the power to permanently revoke the physician's medical license. In very serious instances of professional misconduct, fines up to $10,000.00 per violation may also be imposed.
6. If I am found guilty of professional misconduct by a Hearing Committee, am I out of options at that point?
No. After a Hearing Committee determination is handed down, a practitioner may appeal to the Administrative Review Board. An unsatisfied practitioner may thereafter appeal that determination to the New York State Courts. However, a practitioner may only appeal to the NYS Courts after all of his administrative remedies have been exhausted.
7. I have been asked by OPMC to send them a patient chart, but they did not provide a signed consent from the patient. Must I do so?
The short answer to this question is YES. OPMC is exempt from HIPAA regulations. You must provide OPMC with a specifically-identified patient chart when requested. In fact, it is professional misconduct to refuse to provide a requested chart to OPMC. However, when OPMC requests a comprehensive review of your patient records, they must provide justification to demonstrate that the comprehensive review is reasonably related to a pending investigation.
8. I have been asked by OPMC to come in for an interview with their investigator and their medical coordinator. Am I obligated to do so?
NO, you are not required to go for an interview with an OPMC investigator and a medical coordinator. OPMC is required under the law to allow you the opportunity to be interviewed prior to moving forward with an investigation. In a majority of circumstances, going to the interview is recommended. However, prior to making this very important decision, consulting with an attorney knowledgeable in the OPMC process is highly recommended.
9. Does my malpractice insurance cover the legal fees I may incur during an OPMC investigation?
Your malpractice insurance carrier may cover some or all of your legal fees you may incur during an OPMC investigation. Coverage will depend on your individual policy and the nature of the allegations under investigation.
10. If I am found guilty of committing professional misconduct, will this be publicized?
YES. If you are found guilty of any professional misconduct, information will appear in the National Practitioner Data Bank, on your New York State Physician Profile, and will be posted on the OPMC website. The information may also be reported to other licensing and accrediting agencies. You are required to report findings of misconduct on your NYS Physician Profile, and on your biennial license registration renewal.
For further information about Professional Discipline for Physicians/OPMC/OPD, please contact Michael S. Kelton or Jordan S. Fensterman or call our firm in Long Island at 516-328-2300, New York City at 212-279-9200, Brooklyn at 718-272-6040 or Rochester, New York, at 585-218-9999, to schedule an initial consultation.