Understanding

New York's Medical Conduct Program Physician Discipline

The following information is provided by the
New York State Department of Health

The vast majority of New York's more than 60,000 licensed physicians are dedicated, caring and capable professionals working to protect and improve the health of their patients. However, physicians who have serious deficiencies in their practices, who are dishonest or impaired, affect the integrity of your profession and potentially impact the quality of patient care.

The New York State Health Department's Office of Professional Conduct (OPMC) and the state Board fro Professional Medical Conduct (board) are responsible for investigating and adjudicating complaints against physicians and physician assistants. Each year, the OPMC investigates thousands of complaints received from the public and from health care professionals and institutions. These investigations result in hundreds of physicians being disciplined by the board.

The board has approximately 200 members, two-thirds of whom are physicians nominated by state, county and specialty medical societies. The OPMC serves as staff to the board.

If a complaint about a physician is filed with OPMC, there is a process in place, which effectively weeds out those issues that lack foundation or are outside the jurisdiction of OPMC and the board. If evidence is found which suggests misconduct, checks and balances built into the medical conduct system assure physicians due process.

Who Files Complaints?

More than half of all complaints about physicians and physician assistants come from the public - patients, friends and family members.

State law requires health facilities, including health maintenance organizations to report disciplinary actions they take against medical professionals and any instances of possible misconduct.

All licensed health professionals, including physicians, physician assistants and specialist assistants, are required by state law to report colleagues whom they suspect may be guilty of misconduct. Failure to report suspected instances of misconduct is, in itself, misconduct. If you believe a colleague's actions may represent misconduct, contact OPMC.

If the colleague is affiliated with a hospital, the report can be made to the facility's professional practices committee, which must then inform OPMC. If the colleague is not affiliated with a hospital, a report can be made to the county medical society which will be responsible for reporting to OPMC. If you are uncertain whether specific actions or behaviors constitute misconduct, you may request advice from OPMC without revealing the name of the practitioner. Once advice is provided, you are required to follow it.

Practitioners suspected of having problems with alcohol, drugs or mental illness, but whose ability to practice is not impaired, may be reported to the Committee of Physicians' Health of the Medical Society of the State of New York (the committee). All calls are confidential. The committee identifies, refers to treatment and monitors impaired physicians. The program is voluntary and participation is confidential. The names of physicians participating in the program are not shared with OPMC without a participant's approval unless there is a failure to comply with treatment recommendations. If you believe, however, that a colleague's medical performance may be impaired, you must contact OPMC. The law does not exempt physicians from their duty to report colleagues practicing with a suspected impairment to OPMC, because they have reported it to the committee.

Many of the complaints reviewed by OPMC staff concern issues for which it has no legal authority to act. In other instances, investigations fail to find sufficient evidence to warrant a change of misconduct.

Here are some examples of the kinds of cases, which have resulted in disciplinary action:

• A physician admitted be failed to treat a patient with an ovarian cyst, failed to adequately treat another patient with an enlarged thyroid gland, did not properly monitor anticoagulation therapy for another patient and inadequately investigated complaints of chest pain by yet another patient. For his admitted incompetence, the physician agreed to surrender his license.
• A physician was found guilty of prescribing drugs to patients without doing even minimally necessary exams or histories. The physician was found t have given one patient drugs which were excessive in number, too high in dosage, dangerous in their combined side effects and, in some instances, contraindicated. In two other cases, the physician gave a patient enormous amounts of addictive drugs that were contraindicated and prescribed drugs for another patient over a three-year period without any indication of the reason or the necessity for the prescriptions. For this negligence, the physician's license was revoked.
• For her failure to adequately perform and interpret ultrasound examination, failure to perform or order necessary laboratory tests, failure to diagnose an ectopic pregnancy and appropriately treat a patient's complaint of lack of fetal movement, a physician's license was revoked due to her negligence and incompetence.
• A physician surrendered his license after pleading guilty to conduct evidencing moral unfitness to practice medicine for inappropriate sexual conduct with two patients.
• After pleading guilty in State Supreme Court to fourth degree criminal facilitation for writing notes for patients falsely stating they were disabled so they could obtain fare discounts on subway and rail lines, a physician's license was suspended for five years The suspension was stayed and she was placed on five years probation and ordered to perform community service.

Physicians may also be charged with misconduct for:

• Being impaired by alcohol, drugs, physical or mental disability;
• Abandoning or neglecting a patient in need of immediate care;
• Promoting the sale of services, goods, appliances, or drugs in a manner that exploits the patient;
• Refusing to provide medical care due to race, color, creed or ethnic origin;
• Guaranteeing a cure;
• Performing professional services not authorized by the patient;
• Willfully harassing, abusing or intimidating a patient;
• Ordering excessive tests or treatments;
• Failing to make patient records and X rays available to a patient or another physician on request;
• Permitting unlicensed persons to perform activities that require a license;
• Practicing the profession with a suspended or inactive license;
• Revealing personally identifiable facts, data or information without consent of the patient, except as authorized or required by law.
• Permitting another to share in the fees for professional services, except as authorized or required by law;
• Failing to maintain a record for each patient which accurately reflects his or her medical evaluation.

What Complaints Are Not Misconduct?

Many of the complaints received by OPMC arise from failed communication. Typically, these do not constitute misconduct, but they do point out basic problems in the doctor/patient relationship which, if left uncorrected, ultimately could lead to serious problems. Misunderstandings about diagnoses, treatments, referrals, and billing, as well as concerns about rudeness and a perceived lack of caring, often produce complaints to OPMC. Taking the time to communicate with patients and making sure you and your staff treat patients with respect can help avoid a myriad of misunderstandings and problems.

Complaints regarding fees generally are not under the jurisdiction of the board unless they represent fraud. For example, it would be considered fraud if a physician charged for tests or services not provided. A patient may feel a physician charged too much for the services received, but that does not form the basis of a misconduct action.

Complaints about a physician's communication skills, attitude or "bedside manner" are also not generally under the jurisdiction of the board. Neither does the board have any authority over such office practice issues as long waiting times or rude staff. However, the willful harassment, abuse or intimidation of a patient, either physically or verbally, does constitute misconduct.

How Does the Process Work?

• Written complaints are reviewed by OPMC investigative and medical staff.
• Complaints that raise possible misconduct issues are assigned to an investigator. An OPMC medical coordinator provides technical guidance Typically the complainant, the doctor and others involved in the case are interviewed. Licenses who are under investigation are expected to cooperate in the investigative process, to participate fully and openly in the interview process and to make available records relevant to an inquiry upon request. The failure to respond to written communications from the state Health Department and to make available any relevant records with respect to an inquiry about the license's professional misconduct is itself misconduct under the state Education Law. A physician may have legal counsel present during the interview or at any time during the investigatory process.
• Complaints that raise issues outside OPMC's jurisdiction are referred to the appropriate office. Complainants are notified by letter. If the physician was contacted, he or she is also notified by letter.
• If, after investigation, evidence suggesting misconduct is found, the case is presented to an investigation committee, consisting of two physicians and one lay person, drawn from the board, which can order a haring, dismiss the matter or order non-disciplinary warnings or consultations. The investigation committee may also recommend that additional investigation be conducted. Investigation committees may also recommend to the state health commissioner that a physician's license be summarily suspended because he or she poses an imminent danger to the public health. If the committee finds evidence of misconduct, or if the commissioner orders a summary suspension, charges are field against the physician and a hearing is scheduled.
• If sufficient evidence is not found, the investigation is terminated and the case is closed. A record of the investigation remains in OPMC files for possible future reference. Complainants and physicians are notified by letter.
• Cases ordered to hearing go before another committee of the board - also consisting of two physicians and a lay member - which hears and reviews evidence from both sides. The physician and the state are usually represented by counsel who introduce evidence and calls and examine witnesses. Typically, the physician testifies at the hearing and an adverse inference may be drawn against a physician who does not testify. The committee rules on the case and determines if a penalty is warranted.
• The hearing committee decision may be appealed to the Administrative Review Board which is composed of three physicians and two lay members of the board.

What are the Penalties for Misconduct?

The board has the authority to take actions against a physician's license. Those actions include:

• Revocation.
• Suspension. There are a variety of suspension options, including an actual or partial suspension for a fixed period of time or an actual or partial suspension until a physician completes retraining, education of rehabilitation.
• License limitation to a specified are or type of practice.
• A requirement that a physician pursue a course of education or training.
• License or registration annulment.
• Censure and reprimand.
• A fine not to exceed $10,000 for each finding of guilt.
• Community service of up to 500 hours.

In addition, state Pubic Health Law 230(18), gives OPMC the authority to monitor physicians who have been placed on probation pursuant to a determination of the board For a fixed period of time, the physician's license may be placed on probation and the physician may be required to adhere to the terms and conditions of probation. Those terms and conditions may include, among other things, review of randomly selected patient records, periodic visits with OPMC, employment of a practice monitor or chaperone and other requirements necessary to insure protection of the public.

Some Things You Should Know...

• All final disciplinary actions and summary suspensions are public information. Information on previous closed complaints, dismissed actions and ongoing investigations is confidential, along with the names and identities of complainants. Investigative files are confidential as well, and are disclosed neither to complainants nor physicians.
• Final decisions, the charges on which they are based and penalties are public record. Revocations, actual suspensions and license annulments are immediately releasable. This action is crucial to protect patients and allow them to choose other caregivers. Other hearing committee actions are releasable once an appeal is completed or the appeal period lapses. Summary suspensions of physicians found to be imminent dangers to the public health by the state health commissioner are quickly communicated to the public and press.
• Because medical conduct investigations are complex, it can take several months to resolve complaints. Issues that go to hearing typically take longer. However, OPMC has bade it a priority to close cases as quickly as possible Timely investigation and resolution of misconduct complaints are essential to protect patients and preserve public confidence in the physician discipline process.

How to Reach Us

New York State Department of Health
Office of Professional Medical Conduct
433 River Street, Suite 303
Troy, New York 12180-2299

Phone:
1-800-663-6114 (complaints/inquires)
518-402-0836 (main number)

Web site address:www.health.state.ny.us

Select: Information for Providers, then click on Professional Misconduct & Physician Discipline

e-mail address:opmc@health.state.ny.us

To reach the Medical Society of the State of New York's Committee for Physicians' Health:

1-800-338-1833 or 1-518-436-4723