The Anatomy of a Professional Medical Misconduct Hearing

By: David S Klausner, Esq.

Dr. Gold, a well respected physician specializing in family practice, received a telephone call from Mr. Tarnish, an “investigator” with the New York State Department of Health (“DOH”) Office of Professional Medical Conduct(“OPMC”). Mr. Tarnish wanted to ask Dr. Gold just a few questions regarding three of his patients. Wanting to help, Dr. Gold answers these questions without giving them much thought. A few months later, Dr. Gold receives a letter from Mr. Tarnish requesting copies of medical records for the three (3) patients they previously discussed. Again, he complies. One month later, she receives another letter requesting that he make herself available for an interview. Still under the belief that she did nothing wrong, Dr. Gold arranges to go to OPMC’s offices and answers questions for about one hour. A few days later, Dr. Gold submits her application for re-credentialing at Good Care Medical Center. One question on the application asks her if she is or has been under investigation for physician misconduct. Dr. Gold checks “no.” Almost three (3) months later, Dr. Gold is notified by OPMC that it is charging her with negligence on more than one occasion and fraudulent practice and will be seeking to revoke his license to practice medicine. Dr. Gold finally contacts an attorney and hastily prepares her defense. Sadly, although Dr. Gold is exonerated on the negligence charges, her statement on the re-credential application is found to constitute an intent to defraud. As such, her license is suspended for three (3) years.

This story illustrates how ignorance of the process can turn a good intentioned physician into a respondent in a physician misconduct proceeding. Since nothing threatens the foundation of a physician’s practice more than the prospect of such a scenario, any contact from a representative of the state must be taken very seriously. Unfortunately, the combined effects of misinformation and misguided actions leave many physicians vulnerable to a procedure which can effectively strip them of their ability to earn a living. Learning the who, what, why and how of the process can hopefully keep you upstream of a problem and help ensure the continued viability of your practice.

As with most problems, the first step is to identify the who behind physician discipline. In this case, the entity authorized to investigate, charge, deliberate and decide cases of alleged physician misconduct is the DOH’s Bureau of Professional Medical Conduct(“BPMC”) and its Prosecutorial arm, OPMC. Under the guise of protecting the general public, BPMC investigates, charges, tries and sentences physicians for forty-nine(49) varieties of misconduct. The most common charges are (l) practicing medicine fraudulently or beyond authorized scope, (2) practicing with negligence on more than one occasion, (3) practicing with gross negligence,(4) practicing with incompetence on more than one occasion, and(5) practicing with gross incompetence. Physicians need to understand that when facing the possibility of physician discipline, BPMC acts as investigator, prosecutor, judge, jury and executioner. Accordingly, physicians who find themselves in BPMC’s administrative grip need to be informed, prepared and proactive.

While only superficially impartial, BPMC does have a well defined blueprint it is required to follow. This process starts with an investigation. Here, investigators with OPMC, begin the process of gathering information regarding any suspected or alleged instance of physician misconduct. Typically, the physician receives a friendly telephone call followed by a request for medical records and a verbatim translation of any handwritten entries. They are then given an opportunity to be interviewed in order to provide an explanation of the issues under investigation. This interview, which often determines whether formal charges will be brought, provides the physician with the first and often best opportunity to mount a successful defense. For this reason, physicians are well advised to exercise their right to obtain legal counsel. Any physician who permits him or herself to be interviewed without the assistance of counsel is taking an unnecessary and frequently foolish risk

Following the interview, physicians are entitled to receive a written notice of the issues identified and may submit written comments or expert opinions at any time. Within ninety (90) days of the interview, a decision must be made whether to convene an Investigation Committee. If a majority of this Investigation Committee along with the Executive Secretary of BPMC vote that a hearing is warranted, OPMC is directed to prepare charges, which must contain the substance of the alleged misconduct and a clear and concise statement of material facts. The next step is the preparation of a notice of hearing which specifies the time and place of the hearing, along with the physician’s right to be represented by counsel, present and cross-examine witnesses at trial and the right to file an answer up to ten (10) days prior to the scheduled hearing. The notice of hearing and statement of charges must be served on the physician within twenty (20) days of the scheduled hearing. The timing of this sequence will often leave physicians with less than three (3) weeks to prepare their defense. Again, this underscores the importance of engaging counsel at the first indication of an investigation.

The next stage in the process is the administrative hearing. Here, a Committee comprised of two physicians and one lay person, along with the assistance of an Administrative Law Judge (an attorney licensed to practice in the State of New York who is-of course-retained by BPMC), determine whether the charges have been established by a preponderance of the evidence. While conducted like a trial in a court of law, the parties are not required to adhere to the rules of evidence and a decision, referred to as a Determination and Order, must be issued within 60 days of the last hearing date.

The unfortunate reality is that once an investigation begins, it usually does not end well. As such, the best defenses are prophylactic rather than reactive. The first thing to keep in mind is that BPMC places a significant emphasis on medical documentation and record keeping. If it is not written, BPMC presumes it did not happen. Accordingly, rather than spending your time and money defending against BPMC charges, devote some additional effort towards improving the quality of your progress notes. The second thing to remember is that as soon as you receive any contact from BPMC, you must assume that you are currently under investigation. Therefore, you should consult with legal counsel experienced and familiar with medical misconduct investigations before saying or sending anything. You should also contact your medical malpractice insurance carrier who frequently provides a portion of defense costs. In addition, careful attention needs to be paid to any and all disclosures (such as answers to questions on applications) that a physician makes after BPMC makes initial contact. Again, these questions on possible answers should be reviewed by an attorney before putting pen to paper.

Physicians must understand that by the time a decision is made to bring charges, BPMC has very little interest in stopping the process. Accordingly, knowing how the process works and mounting an early and effective defense represents the best opportunity for surviving a discipline investigation and hearing with license intact.