Defense for Physicians and Physician Assistants Against the OPMC
One of our priorities is representing New York physicians . For more than ten years, attorneys at Spodek Law Group have represented a multitude of physicians and registered physician assistants before the Office of Professional Medical Conduct (OPMC) in the State of New York at every level of professional misconduct investigations and prosecutions.
Let’s begin by discussing the meaning of professional misconduct. In a sense, it is a catch all term for an extensive list of offenses listed in the state Education Law. The list is voluminous, including roughly forty types of conduct considered unprofessional. If a physician is discovered to be in violation of any one of these, he or she is subject to professional discipline. The most frequent types of professional misconduct we have come across in our many years of representing physicians in New York are the following:
The list above is by no means exhaustive but it touches on most issues that are encountered by physicians investigated by the OPMC.
What type of the mechanics exist in an OPMC investigation
The process of professional misconduct investigation in New York is somewhat complicated. We have done our here to share with you the basic details of what to expect during this time and how you should and should not behave if you find yourself a target of an OPMC investigation.
From the time a complaint of professional misconduct is filed against a physician in New York, the OPMC commences the process of investigating the allegations. Depending on where the physician practices or is registered, the case gets forwarded to the appropriate OPMC regional offices either in downstate (the 5 boroughs and Long Island) or upstate New York.
The OPMC customarily notifies the physician by mail or by telephone, that there is an investigation has opened involving them. Frequently, they ask the physician for an interview or request that they provide patient records for their review. The majority of physicians are aware that they have to cooperate with the investigators, especially with such a document request. Licensees have an affirmative duty to cooperate with disciplinary authorities and are obligated to furnish any requested documentation. Nonetheless, there is no obligation to agree to an interview. As a matter of fact, it is better to refrain from speaking with any investigators before consulting with legal counsel. In some cases, an OPMC interview might be positive, but in too many other cases, they turn out to be badly damaging for the physician’s own cause.
This is because whatever you say to the investigator in the interview will highly likely be used against you in your own case. There are those physicians who insist on agreeing to the interview because they are adamant that they are innocent and have nothing to hide. However, it is unwise in general to subject oneself to any questioning by authorities in this environment, and in large part, the scope of the interview will be a lot broader than what the physician initially perceives. Additionally, in the process of responding to the questions, the physician may and is likely to give statements which the investigators will use to create new evidence for more, separate charges.
We customarily insist on meeting with our client first and then speaking with the OPMC about the matter before we advise our client whether this will be beneficial to attend the interview with the investigators.
In the event that our client has already submitted to an OPMC interview, the agency subsequently prepares a Report of Interview and furnishes a copy to the physician.
If the first OPMC investigation reveals that there is enough evidence of professional misconduct, then the case gets referred to anInvestigation Committee. Members of this Investigation Committee include two physicians and a layperson. The committee will review the case further and make a recommendation on whether a disciplinary hearing is advisable. In the next phase, formal disciplinary charges are drafted. Depending on whether or not the committee’s decision is unanimous, the charges could become public. In selected cases, if they determine that the physician in question presents serious and immediate risk to public health, they could go so far as to recommend that the physician’s license be summarily suspended prior to a hearing.
If the case proceeds to a hearing, another committee, the hearing committee of two doctors and a layperson, is appointed. The hearing committee serves in the capacity of a judge, a trier of fact. Even though an administrative law judge is present at the hearing, the committee members are the ones to decide on guilt or innocence. Should the committee discovers that misconduct has indeed been committed, it will then decide on the penalties.
In the State of New York, potential penalties in medical disciplinary cases are: reprimand, probation, suspension, license annulment, license limitation, and license revocation. Steep monetary fines, community services, and retraining are also possible sanctions.
The majority of OPMC cases are resolved before they ever reach the hearing stage. An application for consent order, akin to a plea deal in criminal cases, is the most common way of resolution of disciplinary matters. The application for consent order obligates the physician to admit wrongdoing but allows him or her to reduce the severity of the sanctions.
Do I Have the Right to Appeal a Hearing Committee Decision?
New York law provides for an administrative review of a determination made by the Hearing Committee. Either side, the physician or the OPMC, can file an appeal with the Administrative Review Board. The ARB is made up of three doctors and two laypersons.
The following step in the appellate process to challenge the hearing committee or the ARB decision in state court under CPLR Article 78. Such cases are difficult to win because the burden of proof is, at this stage, on the licensee that the agency’s decision was arbitrary and capricious.
If you are a New York physician who is under investigation by the OPMC, give us a call at our office right away to speak with an experienced OPMC defense attorney!