PHYSICIANS’ RIGHTS ISSUES
UNDER THE
OFFICE OF PROFESSIONAL MEDICAL CONDUCT
STATE OF NEW YORK

A White Paper Issued by Kern Augustine Conroy & Schoppmann, P.C.

January 18, 2008

Author:
Michael J. Schoppmann, Esq., Kern Augustine Conroy & Schoppmann, P.C.
©Kern Augustine Conroy & Schoppmann, P.C.

OPMC ABUSES OF PHYSICIANS’ RIGHTS

INTRODUCTION

The Constitution of the United States mandates that basic due process protections be afforded to all U.S. citizens. This White Paper describes the various means by which the Office of Professional Medical Conduct of the State of New York (“OPMC”) has systematically disenfranchised New York physicians of their most basic constitutional rights. According to OPMC, the justification for treating their licensees in this manner is that, as license holders, physicians are held to a higher standard than the general citizenry because the safety of the populace demands expedited and comprehensive review. However, once any governmental system is formulated and/or implemented without full checks and balances, there can be a drive to rationalize the need for and importance of their existence and, in its zeal to maximize the number of physician license suspensions and revocations, the OPMC, though its investigative/prosecutorial techniques and tactics has, sub silentio, stripped away from physicians many of their most basic liberties as the cost for holding the privilege to practice medicine in New York. It is our hope that by bringing these abuses to the forefront, we can, collaboratively, work toward compelling OPMC and/or the State of New York to reconsider and revise its investigatory and disciplinary procedures to accomplish their mandate of protection of the public without imposing unfair and inappropriate results through a flawed system. Failure to pursue such goals will result in the ongoing, and increasing, violation of New York physicians’ due process rights and a de facto obviation of the United States Constitution as it applies to the practice of medicine.

DENIAL OF PHYSICIANS’ RIGHT TO COUNSEL

The OPMC has taken the position that it need not adhere to state and federal law regarding the right to counsel. See Exhibit A (letter from Ansel Marks, M.D., J.D., OPMC Executive Secretary). As but one example, throughout the spate of unannounced inspections of facilities due to recent publicity concerning infections, OPMC routinely fails to advise the targeted physicians that they can invoke the right to contact an attorney. OPMC investigators, empowered through the DOH with the weapon of entering a practice upon receipt of a complaint, threaten the physicians into the mistaken belief that the investigator also has the right to immediately speak with and/or interview staff. In fact, while it is unclear as to whether or not the DOH has the power of immediate entry onto a physician’s premises, there is certainly no broad power to interview and question everyone in sight.

At this juncture, the involvement of experienced healthcare counsel is critical to not only secure the procedural and practical aspects of such as inspection (i.e. scheduling the OPMC inspection at a time when there would be no patients in the office and removing uninformed and uninvolved employees from the process, etc.) but toward also protecting the physicians’ right against self-incrimination. Yet, through the use of these tactics, the OPMC purposefully denies physicians under investigation access to such counsel, and thereby, their constitutional rights.

Another well-settled legal right that is afforded to all but New York physicians is that once a party has been given notice of representation, either personally or through counsel, further direct contact with the represented party is proscribed. As a matter of course, written notice is provided to OPMC once legal representation is initiated; however, some OPMC offices have taken the position that, absent some form of correspondence signed by the physician, the investigator will continue to directly contact the physician, notwithstanding its receipt of written notice of representation. Not only have there been incidences of direct contact, but there has also been concomitant further questioning of the physician on the exact facts or treatment at issue in the investigation. See Exhibit B (letter to Ansel Marks from Michael J. Schoppmann). If the outcome of the investigation is averred to be the truth, then one must question the reason for such circumvention of the most basic of fundamental legal principles. Moreover, if OPMC’s goal is to determine true facts, why does it continue to circumvent a physician’s right to counsel by eliciting unguarded, often incomplete and misinterpreted, statements from the physician?

We would note that physicians have faced this identical issue previously in the State of New Jersey. See Exhibit C (key pleadings in New Jersey litigation). In spite of bringing such similar conduct to the attention of the New Jersey State Board of Medical Examiners (“SBME”), the SBME refused to restrain itself. The involved physicians were ultimately forced to take the SBME to court, where the violative actions were summarily enjoined. While there is certainly ample opportunity to have the courts of the State of New York proscribe these practices, initial efforts should first be undertaken to resolve this issue with OPMC in a more direct and global fashion, addressing the resolution of other transgressions as well. However, if OPMC remains unwilling to honor a physician’s right to counsel, we would strongly recommend the full coordination of all involved parties to address this matter through the courts.

RIGHT TO A SPEEDY TRIAL

There is currently no statute of limitations in effect regarding OPMC investigations of alleged violations of patient care. As a result, physicians face the threat of investigation and/or legal action for matters that may well have occurred in decades long since past.

For example, OPMC has recently pursued a New York physician who 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 is that fundamental fairness dictates a set period of time after which people need not fear being sued for actions they have, or have not, taken in the past but are hampered in proving at such a late date. OPMC investigations involving physicians invariably revolve around specific facts and/or records, and with the passage of time, important evidence may be destroyed or disappear, witnesses memories fade, and key witnesses may move or even die – rendering the involved physicians without the ability to remember the patient care and contact, no less defend themselves. Indeed, there are few matters more dependent upon the acute recollection of minutiae than allegations involving medical care and treatment, where the most cogent defense is often the physician’s ability to articulate those facts and circumstances not memorialized in the patient’s medical records.

In fact, 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 a minor patient reaches the age of nineteen). It is, therefore, unconscionable for the OPMC to administratively sanction a physician for conduct memorialized in medical records the physician has no duty to retain, and most often, has not retained. By what means can physicians defend themselves if the foundational documents (the medical records) no longer exist? Simply stated, they cannot. As a result, an OPMC investigation predicated upon care and treatment for which there is no record is a per se denial of a physician’s constitutional right to defend themselves.

Moreover, as a matter of public policy, there is simply no rationale for extending a physician’s exposure to administrative punishment beyond that being employed for medical malpractice. See Exhibit D (State of New York Medical Malpractice Statute of Limitations). If a patient’s right to seek legal redress can be, and is, limited to a specific amount of time, there is certainly no greater or differing need to extend that limitation when weighing the interests of the State of New York. If it is simply the slow speed of a lumbering bureaucracy, then this is an even more unjustifiable infringement on the rights of physicians – without a corollary enhancement of the public’s interests or safety.

RIGHT TO REVIEW EVIDENCE BEFORE HEARING

There are a few more frightening scenarios than being judged without knowledge of the evidence gathered against you. Yet, physicians often find themselves in exactly that circumstance. 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 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 by reviewing those records obtained by OPMC.

In a recent case involving a member physician, it was requested that OPMC provide the physician with a complete copy of the relevant records upon which the physician would be questioned. See Exhibit E (redacted correspondence regarding patient right to review evidence). Alternatively, we requested that the physician and his attorney be afforded the opportunity to review the relevant medical records at an OPMC office on a date prior to the date of the physicians’ interview. The OPMC investigator initially took the position that the physician could only review the medical records during the actual OPMC interview. That proposed method was rejected immediately as it denies the physician his or her right to a proper and adequate defense. No witness can even begin to prepare their defense if the first opportunity they have to review the evidence is while they are testifying upon that very evidence. Even the suggestion runs afoul of every bedrock principle of constitutional rights. To offer such a method in the context of complex medical records serves to only reinforce the need to aggressively defend those principles.

In response, the OPMC investigator took the fall-back position that the physician’s access to the relevant medical records would be strictly and inexplicable 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, that tactic was summarily rejected as it denied the physician even the most basic right to review the incidents upon which he or she would be questioned and judged with counsel and prepare a defense accordingly. After several further discussions with OPMC, the physician and counsel were 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 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 well in advance of any proceeding. The statutorily stated purpose of the interview is to elicit the informed recollections of percipient witnesses, not to coerce poorly considered speculations, under duress, and based upon half forgotten facts. See Exhibit F (Public Health Law, Section 230 (10) (a) (iii)). The ultimate beneficiaries of the disciplinary process, the patients of New York State, will be better served by a process that guarantees meaningful and accurate 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 events in question prior to the OPMC interview and thereafter consult with counsel to prepare his or her defense. Some investigations involve many days, if not months, of care and treatment, often involving a chart of hundreds of pages, with many diagnostic test results over a period of time - none of which cannot be fully reviewed and comprehended in one short sitting. OPMC must be compelled to provide every physician under scrutiny with a complete copy of any and all records in question to which the physician does not have access.

RIGHT TO A COPY OF THE MEDICAL RECORDS

The current position of all OPMC offices is that they will not provide the physician a copy of the medical records, although the records form the basis for the allegation of misconduct. There is little further consensus between OPMC offices regarding physician access to medical records. Whereas several offices allow unlimited, albeit supervised, access to the records, other offices take the position that access should be allowed only during the actual interview. All of these positions have the effect of limiting the opportunities of the physician, the physician’s legal counsel, and any consulting expert witnesses, to thoroughly review and analyze the medical records. Of course, the OPMC investigators and interviewers are able to scrutinize the medical records on many occasions, for as long as is required, with no such restrictions, and with unlimited legal and expert support. The obvious, and only fair, solution is for the target physician, upon request, to receive a complete copy of those medical documents in the possession of the OPMC. This would promote the proverbial “level playing field” and mitigate against the prevailing atmosphere of discipline by ambush.

RIGHT TO A LOCAL HEARING

There appears to be no pattern 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 Manhattan. The physicians, and often the patients of that physician, who must attend such remote interviews are unreasonably inconvenienced. They are forced to take many hours of time from their practices 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. While there may be internal reasons why OPMC has utilized one office or another to initiate an investigation, there is no reason why the investigator cannot meet with the physician, on the day of the interview, at the closest OPMC office. This has been done to date by very few investigators who have demonstrated understanding of the realities of the difficulties of physician scheduling. A reasonable general 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.

RIGHT TO KNOW THE BASIC SUBSTANCE OF THE ALLEGATIONS:

To further exacerbate the inherent unfairness of conducting interviews in inconvenient locales, there is a great deal of difference between OPMC offices as far as notifying the physician of exactly what issues are being raised prior to his or her interview. It is often found that, in Manhattan, a physician may be given a general idea of the issues raised in the complaint, whereas in Upstate New York, he or she may actually be apprised of the OPMC’s specific concerns. At times, it is not the care that was received by the patient that is under investigation but the demeanor of the physician and/or the physician’s staff. At other times, there are extremely serious allegations, for example, inappropriate touching of the patient that would constitute boundary violations or, at worst, assault of the patient. It does not further the interests of patient protection to purposefully hide these issues until the time of the interview. Rather, it could be argued that, by not advising the attorney or the physician of the true nature of the allegations, OPMC actually discourages a culpable physician from seeking immediate intervention through the Committee for Physicians’ Health or a private mental health facility. In actuality, one could maintain that, for these instances, the secrecy that OPMC maintains as to the nature of the allegations could harm other patients by delaying the physician from recognizing the problem.

While no one questions the worthwhile intent of the law in New York which protects divulging the name of a complainant, neither that law, or its intentions, mandate that the elements of the accusation be kept confidential. By contrast, in other states, it is recognized that advising the physician of the allegations may very well prompt an enhanced review of the issues and, as noted above, initiate improvements or treatment well prior to the date of the actual interview.

The difference between these two approaches can significantly impact everyone involved: OPMC may not receive a full and informed response by the physician and the physician may find his or her livelihood and future needlessly impacted, as the former approach can adversely affect the ability of the physician to understand the issues and properly prepare for the interview. Under either set of circumstances, the system produces an inappropriate and/or unjust result.

RIGHT TO PRIVACY

By statue, OPMC may request records “relevant” to the ongoing investigation. All others require a subpoena. However, New York physicians at times receive demand letters for records and information that may very well far exceed that which OPMC has a right to compel upon demand. Nonetheless, the letters warn, that failure to provide the information, as and when requested, is misconduct. While, as matter of law, this assertion would be true only if the basis of the request is valid, namely, that the records requested be “relevant”, many times, only an attorney can make this determination on behalf of a physician and these demand letters imply that there is absolutely no issue to review. As a result, the targeted physician is, as intended, intimidated from contacting an attorney and thereby unable to question the authority of the letter.

Furthermore, physicians are routinely “short noticed” and OPMC orders are posted to the Department of Health website before the physicians are even served. In addition, the entire Statement of Charges is posted when a physician is disciplined, including those charges which have not yet been proven by the preponderance standard.

RIGHT TO A FAIR HEARING

The need for, and benefit of, the separation between OPMC and the Administrative Law Judges (“ALJ’s”) who preside over disciplinary cases could not be more paramount (particularly in certain upstate cities such as Troy where the ALJ’s and OPMC actually share space and work in an environment that facilitates ex parte communication, intended or not). States throughout the country have long since employed such a separation in order to provide the accused with the clearest confirmation of an independent and objective judiciary. Additional reform measures as to the administrative process should also include, but not be limited to:

• Production of policies directing how ALJ’s and hearing panels are to be chosen for a particular hearing.
• ALJ’s should have the power to order pre-hearing and intra-hearing discovery.
• The fundamental requirement for the State of New York to turn over exculpatory information should be codified.
• The burden of proof should be clear and convincing, not preponderance of the evidence.
• “Moral Unfitness” should be more narrowly defined or removed from the statute.

CONCLUSIONS

There are several potential, and differing, approaches to address these problems. We have prepared this White Paper with the hope that we can coordinate a collective approach that garners the maximum amount of physician support and substantive impact in order to enhance the protection of their rights during an OPMC investigation.

It has been our experience that far too few physicians are aware of the gross inequities that would befall them if targeted, or simply investigated, by the OPMC. Through the issuance of this White Paper, we would hope to increase physician awareness of these issues and we firmly believe that increased awareness will result in increased involvement.

Combining that involvement with the support of organized medicine, we believe that physicians can take action toward making the OPMC process fairer to both the complainants and the physician community. To those who share such goals, we would hope that this White Paper will serve as a starting point toward developing a collective strategy and a unified attack against arbitrary and unfair OPMC processes and positions.

ABOUT THE PAPER

This White Paper is published by Kern Augustine Conroy & Schoppmann, P.C., a law firm that has been representing physicians and other healthcare professionals for more than a quarter of a century. Kern Augustine, in association with its affiliates, Augustine Kern & Levens, Ltd., and Physicians’ Counsel, LLC, forms one of the nation’s largest Healthcare Law Firms devoted predominantly to the needs of physicians and other healthcare professionals. Together they have represented physicians throughout the United States.

The author, Michael J. Schoppmann, Esq., has spent his career focusing on the defense of healthcare professionals in actions before state licensing authorities (OPMC), the Office of Inspector General (Medicare), hospital disciplinary actions and other state and federal authorities. Mr. Schoppmann has also served as a faculty member of the Cornell University, Johnson Graduate School of Management, Executive Program in Health Care Delivery Management. He is a past two-term Chairman of the State Bar Association’s Administrative Law Section. For more information, please contact Mr. Schoppmann at (516) 294-5432 or schoppmann@drlaw.com.

Contributing writer Ralph A. Erbaio, Jr., Esq. is a former Administrative Law Judge, having served with the Department of Health and the Office of Professional Medical Conduct before joining Kern Augustine Conroy & Schoppmann. As an Administrative Law Judge, Mr. Erbaio dealt with issues of physician discipline, reimbursement and fraud and abuse. For more information, please contact Mr. Erbaio at (516) 294-5432 or erbaio@drlaw.com.