By: Jennifer Kirschenbaum
For most physicians, their biggest professional worry (other than making ends meet) is finding themselves in that worst-case scenario where a terrible error is made resulting in a whopping malpractice action. As a healthcare attorney, the worst-case scenario that I see for practitioners is receiving a letter from the Office of Professional Medical Conduct, otherwise known as OPMC.
OPMC is the department in the NYS Department of Health responsible for investigating professional misconduct of any kind; OPMC has the power to suspend or revoke a physician’s license for unfitness or reprehensible conduct. For a physician who has spent countless years receiving their degree, the biggest threat I see to their livelihood is the risk of losing their right to practice medicine. It is for this reason that I am compelled to stress in the beginning of this article the importance of retaining a healthcare attorney should you be contacted for any reason by OPMC.
OPMC’s investigations, oftentimes, are initiated due to complaints received by OPMC from patients, competitors, disgruntled employees or even angry ex-spouses. Anyone can make a complaint to OPMC for any reason; complaints are received reporting substandard medical treatment, improper behavior on behalf of the practitioner or employer, maintaining a dirty office, failure to adhere to marketing regulations, illegal kickbacks, etc. OPMC’s mandate enables OPMC to investigate physician’s that have no complaints made against them. For instance, if a physician is mentioned in a news article or has a National Practitioner Data Bank report filed about them, OPMC may initiate an investigation on their own accord.
Each year more than 6,000 complaints are brought to OPMC’s attention, typically coming from a multitude of sources such as patients or their family members, anonymous individuals, other physicians, and hospital administrators who are required to report any suspected physician misconduct. Usually around 60% or 3,000 of cases are closed in the initial stage of investigation due to lack of jurisdiction where the case does not prove professional misconduct even if true or a technical violation where there is a failure to forward medical records to a patient or physician.
If OPMC finds a physician guilty of committing acts of misconduct, OPMC decides the penalty appropriate in that situation.
OPMC investigators are responsible for determining whether credible evidence exists of professional misconduct. Examples of professional misconduct include, but are not limited to: (a) practicing fraudulently, practicing with gross incompetence or gross negligence; (b) practicing while impaired by alcohol, drugs, physical or mental disability; being convicted of a crime; filing a false report; (c) guaranteeing that treatment will result in a cure; (d) refusing to provide services because of race, creed, color or national origin; (e) performing services not authorized by the patient; (f) harassing, abusing or intimidating a patient; (g) ordering excessive tests; and (h) abandoning or neglecting a patient in need of immediate care. (OPMC does not investigate fee disputes.)
OPMC investigators are frequently registered nurses, who are accompanied by an OPMC Medical Coordinator (usually a physician of the same specialty as the physician under review) in making the determination of whether there was misconduct. During the investigation process, OPMC will undergo a fact-finding process that includes reaching out to the physician under investigation and, oftentimes, inviting that physician to OPMC for an interview. OPMC will allow a written submission on behalf of the physician under investigation to be determined with the facts that OPMC uncovers. Whether attending an interview or submitting additional documentation on behalf of the physician being investigated is a decision to be made on a case by case basis.
If after its review, OPMC finds misconduct the physician may accept the final determination of OPMC or continue on to a hearing.
During the hearing process which is comparable to a court proceeding, the physician under investigation will appear before a panel consisting of two physicians and one lay member who serve as objective reviewers of facts. The hearing committee will decide whether the physician under investigation is guilty, and, if so, what penalties are appropriate. Upon a determination of misconduct, the hearing committee will refer the case back to OPMC to prepare formal charges against the physician as a final determination. Formal charges may include any of the following penalties:
1. Censure and Reprimant (a public warning);
2. Suspension of License
3. Probation according to specified terms;
4. Revocation of License;
5. Fine of up to $10,000 per violation;
6. Community Service for up to 500 hours; and/or
7. Education or Training.
(3) Appeal Rights:
If the physician chooses to appeal a final determination, the physician has a right to file an appeal to the Administrative Review Board. The Administrative Review Board consists of five members, three physicians and two lay persons who are charged with the responsibility to decide whether the final determination by OPMC is correct within 45 days of the filing of an appeal.
(4) Appealing to State Court:
Upon the Administrative Review Board’s decision, the physician under investigation has reached the end of the administrative process and is now allowed to appeal to the New York State Courts should the physician disagree with OPMC’s and the Administrative Review Board’s decisions. Oftentimes the appeal process is overly burdensome and expensive, which is why many practitioners do not follow the process along to the appeal process.
Navigating the currents of an OPMC investigation is riddled with obstacles and should not be attempted without the assistance of a trained healthcare attorney. In its broad mandate, once OPMC has entered your medical practice, like the relative who visits for too long and is too nosey, it is oftentimes difficult to rid yourself of OPMC. Finding the right team to take you through the OPMC process is of the utmost importance.
For additional information about OPMC or to speak with a healthcare attorney to represent you in an OPMC matter, please contact Jennifer Kirschenbaum of Kirschenbaum & Kirschenbaum, P.C. at (516) 747-6700 x. 302 or Jennifer@KirschenbaumEsq.com or Rachel Weinrib at (516) 747-6700 x. 317 or RWeinrib@Kirschenbaumesq.com.