The Anatomy of a Professional Medical Misconduct Hearing

This story illustrates how ignorance of the process can turn a well-intentioned physician into a respondent in a physician misconduct proceeding. Since nothing threatens the foundation of a physician's practice more than the prospect of such a scenario, any contact from a representative of the state must be taken very seriously. Unfortunately, the combined effects of misinformation and misguided actions leave many physicians vulnerable to a procedure that can effectively strip them of their ability to earn a living. Learning the “who,” “what,” “why” and “how” of the process can hopefully keep you, your client or your client's staff members upstream of a problem and help ensure the continued viability of everyone's practice.

We will use New York's physician discipline rules to illustrate what can happen to doctors whose practices are called into question in that State, but the issues faced when an inquiry is being made are similar for physicians practicing in other states.

Who Is Making Inquiries?

As with most problems, the first step is to identify the “who” behind physician discipline. In our illustrative New York case, the entity authorized to investigate, charge, deliberate and decide cases of alleged physician misconduct is the DOH's Bureau of Professional Medical Conduct (BPMC) and its prosecutorial arm, OPMC. In its mission to protect the general public, BPMC investigates, charges, tries and sentences physicians for 49 varieties of misconduct. The most common charges are: 1) practicing medicine fraudulently or beyond authorized scope; 2) practicing with negligence on more than one occasion; 3) practicing with gross negligence; 4) practicing with incompetence on more than one occasion; and 5) practicing with gross incompetence. However, there are also charges for inadequate record keeping; practicing the profession while impaired by alcohol, drugs, physical disability, or mental disability; being convicted of a crime under New York State or federal law; fee sharing; using testimonials in advertising; ordering excessive or unnecessary tests; and willfully harassing, abusing, or intimidating a patient either physically or verbally.

Physicians who have grown accustomed to the standards by which alleged cases of medical malpractice are judged are often surprised that these standards do not necessarily apply to an action for alleged misconduct. In a case for medical malpractice, the patient must establish through a preponderance of credible evidence that the physician departed from the standard of care, and that the departure caused an injury. In an action for alleged physician misconduct it is not necessary for OPMC to demonstrate that any action or inaction on the part of the physician caused an injury. Accordingly, a physician could face the possible revocation of his/her license even if the subject patient suffered absolutely no untoward outcome. In fact, there are many scenarios wherein the subject patient himself not only has expressed no complaint, but also continues to treat with the physician.

Physicians also need to understand and appreciate that when facing the possibility of physician discipline, BPMC acts as investigator, expert, prosecutor, judge, jury and executioner. Accordingly, physicians who find themselves in BPMC's administrative grip need to be informed, prepared and proactive. While only superficially impartial, BPMC does have a well-defined blueprint it is required to follow. This process starts with an investigation. Here, investigators with OPMC (typically former nurses or other health care professionals), begin the process of gathering information regarding any suspected or alleged instance of physician misconduct. Typically, the physician receives a friendly telephone call followed by a request for his/her medical records along with a verbatim translation of any handwritten entries. They are then given an opportunity to be interviewed in order to provide an explanation of the issues under investigation.

The Next Step

The physician should not discuss any details with the investigator. Further, the physician should immediately notify his/her medical malpractice insurance carrier, which may provide an amount of money to be used toward legal costs associated with defending against an OPMC investigation.

The interview, which often determines whether formal charges will be brought, provides the physician with the first and often best opportunity to mount a successful defense. For this reason, physicians are well advised to exercise their right to obtain legal counsel. Any physician who permits him or herself to be interviewed without the assistance of counsel is taking an unnecessary and frequently foolish risk.

The interview itself is typically conducted by a physician practicing in the same or similar specialty. These physicians, generally referred to as medical coordinators, are employees of the DOH. While their stated purpose is to ask questions to better focus and clarify the investigation, many physicians are unprepared for the typically adversarial nature of the interview. For that reason, any physician submitting to an interview must be knowledgeable about the care provided to a specific patient and the pertinent area of medicine or procedure in general. Inadequate preparation will not only reflect badly on a physician's overall competency, but also squander an opportunity to end the investigation at that point.

Following the interview, New York physicians are entitled to receive a written notice of the issues identified, and may submit written comments or expert opinions at any time. Within 90 days of the interview, a decision must be made whether to convene an Investigation Committee. If more than 90 days passes without a decision, BPMC must afford a physician another opportunity for an interview. If, however, a decision is made to convene an Investigation Committee, a majority of the Committee, along with the Executive Secretary of BPMC, must then vote that a hearing is warranted. If a majority does not concur, the physician should be notified that the investigation has concluded. If the Committee votes that a hearing is warranted, OPMC is then directed to prepare charges, which must contain the substance of the alleged misconduct and a clear and concise statement of material facts.

The next step is the preparation of a notice of hearing, which must specify the time and place of the hearing, along with the physician's right to be represented by counsel, present and cross-examine witnesses at trial and the right to file an answer up to 10 days prior to the scheduled hearing. The notice of hearing and statement of charges must be served on the physician within 20 days of the scheduled hearing. (Note that the timing of this sequence is patently unfair since a physician will often learn that charges are being brought before being told of the specific charges he or she faces. As such, physicians will frequently have less than 3 weeks to prepare their defense; which may include contacting witnesses and retaining experts to testify at the hearing. Again, this underscores the importance of engaging counsel at the first indication of an investigation.)

Once the notice of hearing is served, an attorney working for OPMC acts as the prosecutor. After the hearing is noticed and charges are filed, there may be an opportunity to reach a settlement. However, physicians are advised that any settlement (called a consent decree) becomes a matter of public record. As such, it is vital that the physician consult with experienced counsel before signing any such agreements.

The Administrative Hearing

If a settlement is not reached, the next stage in the process is the administrative hearing. Here, a Committee comprised of two physicians and one lay person, along with the assistance of an Administrative Law Judge (an attorney licensed to practice in the State of New York who is — of course — retained by BPMC), determines whether the charges have been established by a preponderance of the evidence. While the hearing is conducted like a trial in a court of law, the parties are not required to adhere to the rules of evidence. However, the proceedings are clearly adversarial. After each side is afforded an opportunity to present its case, question and cross-examine witnesses and prepare proposed findings of fact and conclusions of law, a decision will be issued within 60 days of the last hearing date.

If the hearing committee determines that OPMC has sustained its charges, it will issue a penalty ranging from censure and reprimand to permanent license revocation. The physician may also be required to pay an administrative fine and/or retain the services of an independent physician to serve as a “practice monitor.” In almost all circumstances, the penalty becomes a matter of public record and can be accessed by anyone through the DOH's Web site. If either the physician or the OPMC is not satisfied with the findings of fact and conclusions of law, or the penalty imposed, they can appeal to what is known as the Administrative Review Board (ARB), which is also part of the DOH. The ARB can sustain the findings of the hearing committee or modify (in any way) those findings. Unlike a traditional appellate process, a physician seeking a reversal or lesser penalty from the ARB might actually face an increased penalty after going through the ARB appeal process. After ARB issues its decision, the only remaining option for either the physician or the OPMC is to seek a judicial review of the decision.

Under New York State Law, any judicial appeal of a physician discipline determination must be brought before the Appellate Division Fourth Department of the New York State Court system. The standard used by this court in considering any such appeal is whether the decision “shocks the conscience.” In other words, the determination of the ARB is more than likely going to be final.

What All Health Care Providers (and Their Lawyers) Should Know

The unfortunate reality is that once an investigation begins, it usually does not end well. This being the case, the best defenses are prophylactic rather than reactive. The first thing to keep in mind is that professional medical disciplinary boards place a significant emphasis on medical documentation and record keeping. If it is not written down, many such boards will presume it did not happen. Accordingly, rather than spending time and money defending against charges, the health care provider or facility should devote some additional effort toward improving the quality of progress notes.

The second thing to remember is that as soon as the physician receives contact from a disciplinary board, that physician must assume that he/she is currently under investigation. Therefore, consultation with legal counsel experienced and familiar with medical misconduct investigations should be had before anything is said or sent in response. The medical malpractice insurance carrier, which frequently provides a portion of defense costs, should also be contacted. In addition, careful attention needs to be paid to any and all disclosures (such as answers to questions on applications) that a physician makes after the disciplinary board makes initial contact. Again, these questions should be reviewed and the answers prepared by an attorney before the provider puts pen to paper.

Physicians must understand that by the time a decision is made to bring charges, the disciplinary board has very little interest in stopping the process. Accordingly, knowing how the process works and mounting an early and effective defense represents the best opportunity for surviving a discipline investigation and hearing with license intact.

Dr. Gold, a well-respected physician specializing in family practice, receives a telephone call from Mr. Tarnish, an “investigator” with the New York State Department of Health (DOH) Office of Professional Medical Conduct (OPMC). Mr. Tarnish wants to ask Dr. Gold a few questions regarding three of his patients. Wanting to help, Dr. Gold answers all his questions without giving them much thought.

A few months later, Dr. Gold receives a letter from Mr. Tarnish requesting copies of medical records for the three patients they previously discussed. Again, he complies. One month later, he receives another letter requesting that he make himself available for an interview. Still believing that he has done nothing wrong, Dr. Gold arranges to go to OPMC's offices and answers questions for about 1 hour.

A few days later, Dr. Gold submits his application for re-credentialing at Good Care Medical Center. One question on the application asks if he is or has been under investigation for physician misconduct. Dr. Gold checks “no.” Almost 3 months later, Dr. Gold is notified by OPMC that it is charging him with negligence on more than one occasion and fraudulent practice and will be seeking to revoke his license to practice medicine. Dr. Gold finally contacts an attorney and hastily prepares his defense. Sadly, although Dr. Gold is exonerated on the negligence charges, his statement on the re-credential application is found to constitute an “intent to defraud.” As such, his license is suspended for 3 years.

This story illustrates how ignorance of the process can turn a well-intentioned physician into a respondent in a physician misconduct proceeding. Since nothing threatens the foundation of a physician's practice more than the prospect of such a scenario, any contact from a representative of the state must be taken very seriously. Unfortunately, the combined effects of misinformation and misguided actions leave many physicians vulnerable to a procedure that can effectively strip them of their ability to earn a living. Learning the “who,” “what,” “why” and “how” of the process can hopefully keep you, your client or your client's staff members upstream of a problem and help ensure the continued viability of everyone's practice.

We will use New York's physician discipline rules to illustrate what can happen to doctors whose practices are called into question in that State, but the issues faced when an inquiry is being made are similar for physicians practicing in other states.

Who Is Making Inquiries?

As with most problems, the first step is to identify the “who” behind physician discipline. In our illustrative New York case, the entity authorized to investigate, charge, deliberate and decide cases of alleged physician misconduct is the DOH's Bureau of Professional Medical Conduct (BPMC) and its prosecutorial arm, OPMC. In its mission to protect the general public, BPMC investigates, charges, tries and sentences physicians for 49 varieties of misconduct. The most common charges are: 1) practicing medicine fraudulently or beyond authorized scope; 2) practicing with negligence on more than one occasion; 3) practicing with gross negligence; 4) practicing with incompetence on more than one occasion; and 5) practicing with gross incompetence. However, there are also charges for inadequate record keeping; practicing the profession while impaired by alcohol, drugs, physical disability, or mental disability; being convicted of a crime under New York State or federal law; fee sharing; using testimonials in advertising; ordering excessive or unnecessary tests; and willfully harassing, abusing, or intimidating a patient either physically or verbally.

Physicians who have grown accustomed to the standards by which alleged cases of medical malpractice are judged are often surprised that these standards do not necessarily apply to an action for alleged misconduct. In a case for medical malpractice, the patient must establish through a preponderance of credible evidence that the physician departed from the standard of care, and that the departure caused an injury. In an action for alleged physician misconduct it is not necessary for OPMC to demonstrate that any action or inaction on the part of the physician caused an injury. Accordingly, a physician could face the possible revocation of his/her license even if the subject patient suffered absolutely no untoward outcome. In fact, there are many scenarios wherein the subject patient himself not only has expressed no complaint, but also continues to treat with the physician.

Physicians also need to understand and appreciate that when facing the possibility of physician discipline, BPMC acts as investigator, expert, prosecutor, judge, jury and executioner. Accordingly, physicians who find themselves in BPMC's administrative grip need to be informed, prepared and proactive. While only superficially impartial, BPMC does have a well-defined blueprint it is required to follow. This process starts with an investigation. Here, investigators with OPMC (typically former nurses or other health care professionals), begin the process of gathering information regarding any suspected or alleged instance of physician misconduct. Typically, the physician receives a friendly telephone call followed by a request for his/her medical records along with a verbatim translation of any handwritten entries. They are then given an opportunity to be interviewed in order to provide an explanation of the issues under investigation.

The Next Step

The physician should not discuss any details with the investigator. Further, the physician should immediately notify his/her medical malpractice insurance carrier, which may provide an amount of money to be used toward legal costs associated with defending against an OPMC investigation.

The interview, which often determines whether formal charges will be brought, provides the physician with the first and often best opportunity to mount a successful defense. For this reason, physicians are well advised to exercise their right to obtain legal counsel. Any physician who permits him or herself to be interviewed without the assistance of counsel is taking an unnecessary and frequently foolish risk.

The interview itself is typically conducted by a physician practicing in the same or similar specialty. These physicians, generally referred to as medical coordinators, are employees of the DOH. While their stated purpose is to ask questions to better focus and clarify the investigation, many physicians are unprepared for the typically adversarial nature of the interview. For that reason, any physician submitting to an interview must be knowledgeable about the care provided to a specific patient and the pertinent area of medicine or procedure in general. Inadequate preparation will not only reflect badly on a physician's overall competency, but also squander an opportunity to end the investigation at that point.

Following the interview, New York physicians are entitled to receive a written notice of the issues identified, and may submit written comments or expert opinions at any time. Within 90 days of the interview, a decision must be made whether to convene an Investigation Committee. If more than 90 days passes without a decision, BPMC must afford a physician another opportunity for an interview. If, however, a decision is made to convene an Investigation Committee, a majority of the Committee, along with the Executive Secretary of BPMC, must then vote that a hearing is warranted. If a majority does not concur, the physician should be notified that the investigation has concluded. If the Committee votes that a hearing is warranted, OPMC is then directed to prepare charges, which must contain the substance of the alleged misconduct and a clear and concise statement of material facts.

The next step is the preparation of a notice of hearing, which must specify the time and place of the hearing, along with the physician's right to be represented by counsel, present and cross-examine witnesses at trial and the right to file an answer up to 10 days prior to the scheduled hearing. The notice of hearing and statement of charges must be served on the physician within 20 days of the scheduled hearing. (Note that the timing of this sequence is patently unfair since a physician will often learn that charges are being brought before being told of the specific charges he or she faces. As such, physicians will frequently have less than 3 weeks to prepare their defense; which may include contacting witnesses and retaining experts to testify at the hearing. Again, this underscores the importance of engaging counsel at the first indication of an investigation.)

Once the notice of hearing is served, an attorney working for OPMC acts as the prosecutor. After the hearing is noticed and charges are filed, there may be an opportunity to reach a settlement. However, physicians are advised that any settlement (called a consent decree) becomes a matter of public record. As such, it is vital that the physician consult with experienced counsel before signing any such agreements.

The Administrative Hearing

If a settlement is not reached, the next stage in the process is the administrative hearing. Here, a Committee comprised of two physicians and one lay person, along with the assistance of an Administrative Law Judge (an attorney licensed to practice in the State of New York who is — of course — retained by BPMC), determines whether the charges have been established by a preponderance of the evidence. While the hearing is conducted like a trial in a court of law, the parties are not required to adhere to the rules of evidence. However, the proceedings are clearly adversarial. After each side is afforded an opportunity to present its case, question and cross-examine witnesses and prepare proposed findings of fact and conclusions of law, a decision will be issued within 60 days of the last hearing date.

If the hearing committee determines that OPMC has sustained its charges, it will issue a penalty ranging from censure and reprimand to permanent license revocation. The physician may also be required to pay an administrative fine and/or retain the services of an independent physician to serve as a “practice monitor.” In almost all circumstances, the penalty becomes a matter of public record and can be accessed by anyone through the DOH's Web site. If either the physician or the OPMC is not satisfied with the findings of fact and conclusions of law, or the penalty imposed, they can appeal to what is known as the Administrative Review Board (ARB), which is also part of the DOH. The ARB can sustain the findings of the hearing committee or modify (in any way) those findings. Unlike a traditional appellate process, a physician seeking a reversal or lesser penalty from the ARB might actually face an increased penalty after going through the ARB appeal process. After ARB issues its decision, the only remaining option for either the physician or the OPMC is to seek a judicial review of the decision.

Under New York State Law, any judicial appeal of a physician discipline determination must be brought before the Appellate Division Fourth Department of the New York State Court system. The standard used by this court in considering any such appeal is whether the decision “shocks the conscience.” In other words, the determination of the ARB is more than likely going to be final.

What All Health Care Providers (and Their Lawyers) Should Know

The unfortunate reality is that once an investigation begins, it usually does not end well. This being the case, the best defenses are prophylactic rather than reactive. The first thing to keep in mind is that professional medical disciplinary boards place a significant emphasis on medical documentation and record keeping. If it is not written down, many such boards will presume it did not happen. Accordingly, rather than spending time and money defending against charges, the health care provider or facility should devote some additional effort toward improving the quality of progress notes.

The second thing to remember is that as soon as the physician receives contact from a disciplinary board, that physician must assume that he/she is currently under investigation. Therefore, consultation with legal counsel experienced and familiar with medical misconduct investigations should be had before anything is said or sent in response. The medical malpractice insurance carrier, which frequently provides a portion of defense costs, should also be contacted. In addition, careful attention needs to be paid to any and all disclosures (such as answers to questions on applications) that a physician makes after the disciplinary board makes initial contact. Again, these questions should be reviewed and the answers prepared by an attorney before the provider puts pen to paper.

Physicians must understand that by the time a decision is made to bring charges, the disciplinary board has very little interest in stopping the process. Accordingly, knowing how the process works and mounting an early and effective defense represents the best opportunity for surviving a discipline investigation and hearing with license intact.