The Need for OPMC Reform

by Michael J. Schoppmann, Esq.

In its zeal to maximize the number of physician license suspensions and revocations, the Office of Professional Medical Conduct (“OPMC”) has, sub silento, stripped away many of a physician’s basic liberties as the cost for the privilege to practice medicine in this State. By bringing these abuses to the forefront, it is hoped that physician awareness will aid in bringing about the elimination of these practices.

Right to Counsel

The OPMC has taken the position that it need not adhere to State and federal law regarding the right to counsel. It is well settled that once a party has given notice of representation, either personally or through counsel, further direct contact with the represented party is proscribed. However, some OPMC offices have taken the position that, absent a letter signed by the physician, the investigator will continue to directly contact the physician, notwithstanding its receipt of written notice of representation. Obviously, the OPMC’s motivations are not benign; its objective in circumventing a physician’s right to counsel is to elicit unguarded, often incomplete admissions from the physician.

Right to a Speedy Trial

There is currently no statute of limitations in effect regarding OPMC investigations of patient care. For example, a recent physician was brought before a hearing to face charges stemming from events that allegedly took place some thirteen years ago. The well-settled rationale for a statute of limitations, of course, is that there should be some set period of time after which people need not fear being sued for actions they have or have not taken. OPMC investigations involving physicians invariably revolve around specific facts, and with the passage of time, important evidence may be destroyed or disappear, peoples’ memories fade, and key witnesses may move or die. Indeed, there are few matters more dependent upon the acute recollection of minutiae than allegations of medical misconduct, where the mostcogent defense is often the physician’s ability to articulate those facts and circumstances not memorialized in the patient’s medical records.

There is simply no rationale for extending a physician’s exposure to administrative punishment beyond that for medical malpractice. Alternatively, pursuant to Education Law Section 6530 (32), it is “professional misconduct” for a physician to fail to retain medical records for less than six years (tolled until the minor patientreaches the age of nineteen). It is likewise unconscionable for the OPMC to administratively or constructively sanction a physician for conduct contemplated by medical records the physician has no duty to retain.

Right to Review Evidence Before Hearing

There are few more frightening scenarios than being judged without knowledge of the evidence harbored against oneself. Yet physicians often find themselves in such circumstances. Whereas medical records may be retrieved by the OPMC from the office of the physician subjected to an investigation, the medical records may alternatively be obtained by the OPMC from a hospital, or previous medical employer, without the physician’s knowledge or consent. Moreover, where the hospital or former employer refuses to allow the target physician access to the records, the physician has no means to review the records prior to interview other than those records retained by the OPMC.

In a recent case, the OPMC was requested to provide the physician with a complete copy of the relevant records. The OPMC refused the request. Alternatively, it was requested that the physician and counsel be afforded the opportunity to review the relevant medical records at the OPMC office on a date prior to the date of the physician’s interview. The OPMC again refused, taking the position that the physician could only review the medical records during the actual OPMC interview. Such an outrageous position was summarily rejected.

This OPMC investigator took the fallback position that the physician’s access to the relevant medical records would be strictly and inexplicably limited to a single review at the OPMC office, for a maximum of two hours, directly preceding the time scheduled for the interview, and under the scrutiny of an OPMC official. Again, such an arbitrarily limited records review, which denied the physician even the most basic rights to due process, was summarily rejected. It was only after the issue was raised to a supervisory level was the physician and counsel permitted to review the documents at a time prior to the day of the interview, for an unlimited amount of time, albeit at the OPMC office, under close OPMC scrutiny.

No physician can meaningfully participate in the OPMC interview process, nor can the OPMC fulfill its statutory obligations, unless the physician is either provided with copies of the hospital and office records, or given reasonable and appropriate accommodations for a review of the records. The statutorily stated purpose of the interview is to elicit the informed recollections of percipient witnesses, not to coerce poorly considered speculations based upon half forgotten facts. (Public Health Law, Section 230 (10) (a).) The ultimate beneficiary of the disciplinary process, the patients of New York State, will be better served by a process that guarantees meaningful physician input. However, at this juncture, unless forcefully challenged, the OPMC provides the physician merely a supervised records review that has the purpose and effect of severely limiting a physician’s right to carefully review the records prior to the OPMC interview.

The obvious fair solution is for the target physician, upon request, to receive a copy of those documents in the possession of the OPMC. This would promote the proverbial “level playing field” and mitigate against the atmosphere of trial by ambush.

Right to a Local Hearing

There appears to be no pattern to to the locale of the OPMC interview. Physicians practicing on Long Island are regularly ordered to appear at interviews in Troy or Rochester, and upstate physicians are regularly scheduled for interviews in NYC. The physicians who must attend remote interviews are unreasonably inconvenienced. They are forced to take many hours of time from their practice in travel, and are required to reschedule the many patients who have rearranged their personal affairs to attend their appointments for medical treatment. Moreover, those physicians who must review medical records at the remote sites must miss a minimum of two full days’ work. A reasonable alternative is for the OPMC to conduct the interviews at an office more geographically convenient to the physician’s practice. This would minimize the disruption of the physician’s practice, and eliminate the punitive ordeal of avoidable travel.

In conclusion, this is an educational warning. Far too few physicians are aware of the gross inequities that would befall them if targeted by the OPMC. Increased awareness will hopefully result in an increased willingness among physicians to take action to make the OPMC process fair to both the complainants and the physicians. A fair and just disciplinary system should be a goal that no one can, or should argue or work against.

Should physicians have any questions, they can contact Mr. Schoppmann at 1-800-445-0954 or at schoppmann@drlaw.com.