We represent physicians in investigations brought by the Office of Professional Medical Conduct ("OPMC") of the New York State Department of Health. A disciplinary sanction by the OPMC after an investigation and trial can have serious consequences for the physician, including loss of license, probation, censure, or letter of reprimand. We also represent physicians facing contract termination proceedings before HMOs, and other health care professionals in proceedings before the Department of Education.
The OPMC-related issues we are currently dealing with in the office are diverse, comprehensive and include:
Healthcare provider with a substance abuse issue. Healthcare provider with a psychiatric issue. Two physicians attempting to have their licenses restored. Issues regarding licensure of non-medical personnel in a physician's office. Assisting a physician to obtain reasonably priced liability coverage. If you would like any additional information, please contact an attorney who is familiar with this type of situation and who may address any frequently-asked questions.
We represented a physician in a Department of Health, OPMC, matter. The physician had a momentary sexual encounter (less than 10 seconds) with a patient. The patient reported this incident to the physician's superior and the physician admitted the incident over the phone and then wrote a rather lenghty letter to his superior which clearly outlined exactly what occured and stated that the physician was indeed at fault and that he could not believe how he had done such a thing.
OPMC asked the doctor to come in for an interview and that was when we became involved in the matter.
Before and after the interview we tried to negotiate some type of settlement with OPMC which would permit the physician to continue to practice medicine to earn a living. (The doctor was employed by a health care institution, he was not in private practice.) We tried to reach an agreement that would have the physician placed on probation, be monitored by another physician, pay a fine, perform public service, etc. In other words, since we could not defend against the incident we were willing to agree to almost anything as long as the doctor would keep his license and be able to continue to work. OPMC's position was that they would accept nothing less than the surrender of the doctor's license, end of story.
Since we could not negotiate any settlement with the Department, they promptly brought charges
against the doctor.
At the Hearing our client testied, as per our advice, concerning his remorse regarding the incident and how such a thing had never happened before in his life and that he understood how wrong this event was and that such a thing would never happen again.
Also, we called the physician for whom he was working both before and after this event. That doctor stated that he had known our client for about four years and that he was an excellent part of the medical team. He also stated that he talked to our client every two weeks concerning patient/physician boundaries just to reinforce the idea that doctors can never put themselves in compromising positions with their patients.
In our summation to the Hearing Committee, two physicians and one layman, we emphasized that this incident was a solitary lapse of judgment in an otherwise blameless life. Therefore to revoke a doctor's license is too harsh of a penalty.
The Hearing Committee found our client was guilty of the offense, but they did not revoke his license. They placed him on probation for two years allowing him to continue to practice in his institutional setting.
However, OPMC was not satisfied with this result and accordingly they appealed the matter to the Administrative Review Board, ARB. The ARB has the power to decrease or increase a penalty and OPMC asked the ARB to revoke our client's license, despite the Hearing Committee's findings, something the ARB has no difficulty in doing.
Thankfully, in this case, the ARB decided to affirm the Hearing Committee's decision and our client continues to practice medicine today.
This case demonstrates that there are ways to bring even a hopeless appearing situation to a satisfactory conclusion. Obviously, a result such as this does not always happen, but one can give oneself at least the opportunity to obtain the best possible result if careful planning goes into the presentation of the facts.
We recently represented an anesthesologist who was investigated by OPMC due to a failure to document a patient's chart. There were two different procedures performed and in neither case was the name or the the amount of the medication charted. The charting was done by a CRNA, not the anesthesologist and therefore it was tempting to simply say that the charting omissions were the fault of the CRNA and not the responsibility of the anesthesologist. However, we know from experience that OPMC will not accept that type of defense. The patient is the patient of the anesthesologist and he/she has the ultimate responsibility to ensure that the charting is correct and complete. Therefore, during the interview our client stated that the charting was deficient but that it was his responsibility to correct the omissions. He also said that since this case he has changed his practice to ensure that all anesthesology reports are complete and accurate.
By taking this position, our client did not try to defend the indefensible and he said he had learned from the experience and improved his patient care. Because of this, OPMC was satisfied with the responses and closed the case without further action.
We at Peltz and Walker feel that it is important to approach these OPMC issues in a way that is looked at as being honest and forthright. By and large, you will not fool an experienced doctor who is conducting the interview for OPMC and if you try to do so you will simply antagonize him/her. This is not helpful to your client. Also, it is important to show how the matter has been a learning experience for the doctor and that he/she has changed his practice to give better care to the patients. This is something that appears to go a long way toward helping the client's position in the OPMC setting.
Each case is different, but this approach has been used successfully by us on numerous occasions.
Some rules of the road to have your New York State Medical License restored: We recently represented a physician in a License Revocation Hearing ("LRH") and following is a roadmap as to how one may try to successfully have one's license restored.
When a physician has had his/her New York State Medical License revoked, there is a procedure to attempt to have the license reinstated. The reasons for revocation can be many, drug/alcohol issues, incompetence, sexual issues, fraud, conviction of a felony, etc. If you desire to have your license reinstated, you should understand the procedures and legal elements that come to play during the restoration procedure.
There are basically three overriding issues that you have to address in this proceeding. They are the three R's - remorse, rehabilitation and reeducation. You have to address these three areas from the very beginning starting with the preparation of your Application for Restoration of a Professional License. This multifaceted document requires a great deal of detailed information including Part G - Professional Rehabilitation Activities. This is an area where the form requires you to list rehabilitation activities which you have taken to address the event which caused you to lose your license in the first place. You should really think about what you are going to write in this area as it can come back to haunt you when you go to your Restoration Hearing. For example, if you have a substance abuse reason for losing your license, do not write that the
substance abuse was caused by somebody else other than yourself. This dodging of responsibility will truly not be looked upon kindly. Also, it is in this space where you should list drug abuse programs that you have attended, programs with Alcoholics Anonymous and any other organized efforts that pertain to your particular problem. When you list these items be sure you have documentation from the organization running the program which prove that you attended and gives the dates of attendance. Also, I would suggest that you attend such program rather close in time to the Restoration Hearing so the panel can see that you are up to date with your efforts to rectify the underlying problem.If your problem was a criminal conviction involving fraud arising out of your billing practices, do not suggest that this was the result of an "error in judgment", "mistake" or other things of which you were "not aware". You have to own up to your own deficiencies which were really the reason that the problem arose. Attempting to deflect guilt by the use of words like I used
above, will not go down well at the Restoration Hearing. In the criminal conviction situation, it would be good to show that you have attended and completed counseling sessions regarding the fundamental reasons that the criminal activity occurred. Again, the panel at your Hearing will want to see that you have taken steps and measures to change yourself into someone who will not commit this type of criminal behavior in the future.Another area that you must address early and often is Continued Medical Education ("CME"). You must be able to show that you have kept abreast of medical innovations and to do that you must be able to give documentary proof that you have attended CME courses in your area of competence and you should attend these courses right up until the time of your Hearing. Be sure to include a large dose of Ethics courses. The panel will look to see that you have been attempting to address the problems of your past whether those problems be substance abuse, sexual issues or criminal activity.
Community service is another area where the panel will look to see if you are serious about yourremorse and your desire to be a meaningful member of society. They will want to see volunteer work at a hospital, a doctor's office, a not-for-profit organization, a church group or any other organization that does work for the community. To prove this community service work, be sure you have documentation on the letterhead of the entity, certifying that you have done the work. Just testifying to this is not enough.
At your Hearing you can bring witnesses to testify on your behalf. These can be professionals who can attest to your medical competence and you can also bring character witnesses. These character witnesses should be able to testify as to how your character has changed for the better since you lost your license. Obviously, this has to be a person who knew you before and continued to be an acquaintance of yours after you lost your license. These character witnesses can be difficult to find and they have to be instructed on how they should testify before they go to the Hearing. In other words, they have to know their role, and what the cross-examination might be like. These witnesses have to be truthful and must show that they are in a position to give competent and intelligent testimony on your behalf.
There are two questions which are fundamental to this reinstatement process which you should be prepared to answer in full.
a) The first is - Why should you be reinstated?
The answer may seem obvious but it is not. Clearly, you cannot say I just want to make more money. Instead, you have to talk about what it means to be a physician and why you have corrected the problems of your past which will allow you to be a valuable member of the medical community.
b) The second question is - What will you do if you are reinstated?
Again, this is a question that might seem easy to answer but it is not. If you are a convicted felon you simply cannot say that you are going to go into private practice and back on the staff of the local hospital. What makes you think they will take you back? How much do you think your liability insurance premium will be as a convicted felon? As you can see, you have to
really think this out and have a coherent answer to this question. Perhaps another physician will testify that he/she is willing to take you into his/her medical office or you can prove that you have a job offer from sort of institution should your license be restored.The Hearing itself is much like an abbreviated trial. There is a court reporter who takes down all of the testimony and a three member panel has an attorney to assist with any legal issues. The department has a prosecutor who will cross-examine any of your witnesses and who can produce witnesses of his own. The burden of proof is on you, the Petitioner. That means your lawyer gives an opening statement first, and the prosecutor then gives his opening statement. A witness is then called on your behalf which will be you or any of your expert or character witnesses. Your lawyer will ask questions and the prosecutor will cross-examine the witnesses. Also, the panel members have the opportunity to ask their own questions. Evidence consists of any documents you would like to offer along with the testimony of all of the witnesses. After the hearing is over, the Board will make a recommendation and that recommendation will be sent to you and your attorney. The Board's recommendation will also go to the Committee on the Professions and it is there where your Application for Restoration will be formally considered.
The above is a thumbnail sketch of the process. If you would like any additional information, please contact an attorney who is familiar with this type of situation.
