The Office of Professional Medical Conduct (OPMC) is the New York State Department of Health unit responsible for investigating and prosecuting complaints against physicians. Anyone can complain to OPMC. Dissatisfied patients, patient family members, insurance companies, rancorous current or former employees, resentful rivals, hospitals, and state agencies are the most frequent complainants.
Some physicians worry most about malpractice lawsuits. Others dread most letters from OPMC, which has the power to suspend or revoke physician licenses for unfitness or misconduct as OPMC sees it.
OPMC also may initiate investigations of physicians deemed to have exhibited questionable conduct whether in their professional or personal lives. OPMC charges disciplinary violations against physicians with perceived drug problems from merely occasional, responsible use or for conduct in another state that might constitute misconduct in New York. OPMC suspended a physician’s license because of a final order in the State of Florida on a finding of habitual abuse of alcohol and drugs. OPMC took immediate, summary, reciprocal action suspending the physician’s New York license indefinitely.
Under the law, OPMC must investigate every complaint regardless of obvious frivolity. OPMC investigators are fellow healthcare professionals or former police officers, insurance investigators, and others with investigatory backgrounds.
In cases the OPMC deems minor or merely technical, the final determination may be an unpublished nondisciplinary administrative warning. When the OPMC finds physicians guilty of professional misconduct, it reports the findings to the National Practitioner Databank and posts them on the Department of Health website page. The least severe OPMC penalty for professional misconduct is a published censure and reprimand, which may impose up to 500 hours of community service and require continuing medical education classes. A hearing (fact-finding) committee may decide that probation with certain limitations or restrictions on the respondent’s medical practice is necessary. Probation may be for a set period of time or until the respondent meets certain conditions.
The next penalty level is suspension of a medical license. A suspended respondent may not practice medicine. A suspension may be for a certain term for an indefinite period of time until satisfaction of probationary terms or conditions. The most severe penalty is license revocation, which may be permanent. OPMC also may levy fines of up to $10,000.00 per violation.
Respondents cannot be compelled to appear for interviews with an OPMC investigators and medical coordinators. By law OPMC must allow an interview opportunity before proceeding with a formal investigation; however, prior consultation with an attorney familiar with OPMC practice is highly advisable.
OPMC has a mandate to investigate physicians that have not been targets of complaints made against them. OPMC investigators determine whether credible evidence proves professional misconduct. OPMC does not investigate fee disputes. OPMC investigators are often registered nurses accompanied by OPMC medical coordinators sometimes physicians of the same medical specialties as the responding practitioners. During investigations, OPMC invites the physician respondent to fact-finding interviews. OPMC allows written submissions on behalf of respondent. If the OPMC investigators find misconduct, respondents may accept the findings or request hearings.
In the formal hearing stage, physician respondents appear before a hearing committee of two physicians and one lay member, who decide whether the investigated physician is guilty or unfit and, if so, what they feel are appropriate penalties. The hearing committee then refers the case with its findings and recommendations back to OPMC for final determinations, which may be
Respondent physicians may appeal OPMC final determinations to the Administrative Review Board of three physicians and two lay persons who must decide within 45 days whether the OPMC final determination is correct.
The Administrative Review Board decision ends administrative process. Recourse to the New York State courts is then available from adverse OPMC and Administrative Review Board determinations. The judicial appellate process is long and costly, and many physicians do not undertake it.
OPMC often investigates malpractice actions against physicians found from regular review of the National Practitioner Databank. Letters from OPMC related to malpractice action should not be ignored. As OPMC can deprive physicians of their livelihood, any interest OPMC takes in professional or personal activities is always very serious.
Imagine a physician confidently practicing good medicine when an OPMC investigator calls to announce an investigation of the treatment of several patients. The investigator requests a copy of each of these patient charts and a meeting at a later date to discuss their care and treatments. Should the physician (a) reject the investigator’s requests out of hand, (b) tell the investigator there is nothing to hide, send the charts, and speak freely as requested, or (c) advise the investigator that legal counsel shall respond to the requests?
The physician who goes the (a) way should see a psychiatrist. Physicians who pick the (b) option, unfortunately what too many do, may participate unwittingly in the destruction of their own careers. Option (c) offers the best prospect for successful resolution of the threat. The next thing to do is to call an attorney who knows about OPMC.
Typically, the investigator interviews complainants and requests from physicians copies of the medical charts for any patients involved. The investigator has legal authority examine the charts as patients in effect waive their rights to confidentiality, so physicians cannot contest disclosure for purposes of the investigation.
If the investigator demands access to patient charts as part of a comprehensive review of office records, physicians should know that OPMC is not entitled to random comprehensive review of patient charts unless a judge finds reasonable cause to believe that what OPMC wants truly relates to an ongoing investigation. The obvious concern about comprehensive reviews is that physicians under investigation may present to an unscrupulous OPMC the rope it may use to hang them.
In every investigation, the physician must have an opportunity to express a position on the facts at issue in an interview with the OPMC investigator and sometimes an OPMC medical consultant. This interview is potentially the most hazardous part of the investigation, and physicians never should participate without assistance and representation by legal counsel. Physicians cannot be compelled to attend interviews, and their attorneys in some cases advise them to stay away.
While the ostensible purpose of the interview is to allow physicians an opportunity for explanation and defense, the more likely scenario is an opportunity for OPMC to collect material to twist into damaging admissions and testimonial inconsistencies when misconduct issues are indistinct and inculpatory evidence weak or even nonexistent. The interview in essence gives OPMC a chance to bootstrap meritless charges into final determinations of apparent plausibility. Counsel retained after such interviews expend most of their efforts at damage control.
Examples of investigations in which attorneys advise physician clients not to attend interviews involve charges of patient abuse, sexual harassment, drug or alcohol use, psychic instability, and misconduct outside the practice of medicine. In such cases innocent physicians rarely say anything that affects the outcome of the investigation favorably to them. More often than not, from nervous anxiety, insufficient preparation, or misunderstanding of the charges, physicians say things that OPMC returns to haunt them.
Most physicians who get themselves into trouble with OPMC believe they can handle the situation themselves, explain everything, and, after hearing their explanation, OPMC will have to agree that the complaints against them are unfair if not frivolous. Physicians confident that they can talk their way out of OPMC investigations usually find out too late that they are sadly mistaken. OPMC investigators encourage physicians to talk without counsel, to save their money because they have nothing to worry about. Only rarely do they remind physicians that they may seek counsel if so inclined.
Physicians should be no more inclined to talk voluntarily to someone looking for professional misconduct than to police detectives investigating them for criminal acts. How the case gets handled in its early stages often decides its outcome, which is why a consultation with an attorney is of supreme importance.
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