Professional Misconduct Investigations: What to Do if OPMC Comes A-callin’

One of the most frightening professional occurrences that a physician may experience is investigation by the licensing authority.

In New York, although a physician’s license is issued by the state Education Department, discipline is imposed through the Department of Health’s State Board for Professional Medical Conduct (BPMC). BPMC’s administrative arm, which takes on day-to-day administration, investigates physicians and monitors physicians who are on probation, is the Office of Professional Medical Conduct (OPMC).

OPMC is required by law to investigate every complaint that it receives within its jurisdiction. Its jurisdiction is broad and is not limited to patient care issues. For example, it is professional misconduct to plead guilty to or be convicted of any crime, even those unrelated to patient care, such as reckless driving. Similarly, it is professional misconduct to be a habitual abuser of alcohol, even if this has never affected the physician’s ability to practice medicine.

Complaints to OPMC can come from myriad sources, including patients, hospitals and government. For example, an adverse event within a hospital that triggers a report to the Department of Health under the New York Patient Occurrence and Tracking System (NYPORTS) will often result in a separate OPMC investigation of the involved physician. OPMC also reviews malpractice awards and settlements filed with the National Practitioner Data Bank. Certain monetary thresholds, which are confidential, will trigger a review.

A physician’s awareness of an OPMC investigation typically begins with the letter. This usually comes in one of two forms. For physicians with an outpatient practice and where the issue is a specific patient or patient’s care, the letter is typically a request for certified copies of the relevant medical records. For all other cases, the letter is usually an offer to be interviewed by an investigator from OPMC. Sometimes, the physician may have knowledge of the investigation before receiving the letter, because it is not uncommon for OPMC to request a physician’s hospital credentialing file and hospitals will often notify its medical staff members of the inquiry.

It is professional misconduct to fail to respond within 30 days to a written request from the Department of Health, so the physician should react promptly. The physician should first contact an attorney knowledgeable and experienced in licensing defense. The physician should also consult his or her malpractice insurance carrier to ascertain whether he or she is insured for legal defense coverage, which the attorney may do on the physician’s behalf. (As a side note, some policies include this automatically and others, such as those underwritten by Medical Liability Mutual Insurance Company, require the physician to purchase a rider. License defense is potentially very expensive, and the last thing an investigated physician should have to worry about is paying the legal bills, so strong recommendation is made to purchase this coverage.)

If OPMC requests patient charts, these charts should be segregated (if paper) in the same manner as is done for a malpractice case. Absolutely, under no circumstances, should any change whatsoever be made to the medical record. The quickest way to convert a readily defensible investigation into a license revocation case is to alter the medical record. OPMC will accept records in an electronic format. As a lawyer, my preference is for the physician to certify the copy (OPMC provides the form) and send it to me; I then send the copy to OPMC and notify them that the physician is represented by counsel. From then on, OPMC will contact the lawyer, rather than the physician.

If OPMC offers an interview, a similar process is followed. The physician’s lawyer contacts OPMC and advises them that he or she has been retained. Once OPMC has been so advised, the dates in the letter are no longer hard deadlines, and a mutually convenient interview date will be scheduled. With regard to complex cases, this may be many weeks later. The important thing is for the lawyer to contact OPMC quickly and “stop the clock,” after which they tend to be flexible regarding scheduling.

A fundamental question is whether to take the interview. I jokingly say that physicians have two opportunities to talk to OPMC: the first is at the interview before they make up their mind, and the second is at the hearing after they have. So in almost all cases, it is better to interview and explain the situation early in the investigatory process. This decision, however, should only be made after discussing with experienced counsel, and the interview itself should only be undertaken after being prepared by the same counsel.

Statistically, OPMC annually receives about 8,500 complaints and only disciplines about 330 physicians and physician assistants. Being under investigation by OPMC does not mean your career is over. However, the targeted physician should take the process seriously, consult knowledgeable counsel quickly and work within the process in order to obtain the best results.

Article originally appeared at: MD News January/February 2015, Central New York Edition

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