New York OPMC Investigations and Disciplinary Hearings

The Law Offices of David S. Rich has substantial experience representing physicians, physician assistants, and specialist assistants in misconduct investigations and in disciplinary proceedings brought by the New York State Department of Health’s Office of Professional Medical Conduct (the “Office of Professional Medical Conduct,” the “New York OPMC” or the “NY OPMC“).

Whom We Represent

The licensed health care professionals whom we defend in misconduct investigations and disciplinary proceedings brought by the New York State Department of Health’s Office of Professional Medical Conduct include:

• Physicians
• Physician assistants
• Specialist assistants

Throughout this page, and in the interest of brevity, the term “physician” includes physicians, physician assistants, and specialist assistants.

What We Do

The Law Offices of David S. Rich represents physicians, physician assistants, and specialist assistants in all stages of the professional disciplinary process. We: (1) draft the required, signed statements in response to the allegations; (2) prepare legal defenses and identify mitigating circumstances by researching published determinations and orders of hearing committees of the New York State Board for Professional Medical Conduct (the “State Board for Professional Medical Conduct” or the “Board for Professional Medical Conduct”), published determinations and orders of the New York State Administrative Review Board for Professional Medical Conduct (the “State Administrative Review Board,” the “Administrative Review Board,” or the “NY ARB”), and opinions of New York’s Appellate Division, Third Department, reviewing determinations and orders, imposing professional discipline, issued by the Board for Professional Medical Conduct or by the Administrative Review Board; (3) prepare physicians for on-the-record interviews and participate as the physicians’ counsel; (4) answer statements of charges; (5) negotiate settlements; (6) make pre-hearing motions; and (7) litigate disciplinary hearings.

How Disciplinary Investigations Arise

An investigator for the New York State Department of Health’s Office of Professional Medical Conduct draws up and sends, to the physician, physician’s assistant, or specialist assistant, a letter stating that the New York OPMC is conducting an inquiry into some matter. The NY OPMC’s investigator’s letter asks for a copy of the physician’s patient’s records in the case or matter about which a complaint has been received.

The NY OPMC’s inquiry letter may ask the physician, physician’s assistant, or specialist assistant to provide a signed, written statement about potential violations of laws or rules governing the individual’s practice of health care.

The NY OPMC may offer the physician, physician assistant, or specialist assistant the opportunity to appear and, in an on-the record interview, to testify under oath about potential violations of laws or rules governing the medical profession.

Flouting the NY OPMC’s requests for patient records typically results in a significant penalty.

If you are a physician, a physician assistant, or a specialist assistant in the New York City area and you have received, from the New York OPMC, an inquiry letter, contact the Law Offices of David S. Rich, LLC.

What Are the Most Common Categories Of Professional Misconduct By Physicians, Physician Assistants, And Specialist Assistants?

The New York State Education Law defines the term “professional misconduct.” Under the Education Law, more than 50 categories of conduct are deemed unprofessional or unethical, rendering the physician, physician assistant, or specialist assistant subject to discipline.

The types of misconduct that most frequently result in misconduct investigations and disciplinary hearings against physicians are:

1. Practicing the profession, on more than one occasion, with negligence or incompetence;
2. Practicing the profession with gross negligence on a particular occasion or with gross incompetence;
3. Being convicted, in any jurisdiction, of a crime;
4. Practicing beyond the permitted scope of the medical profession;
5. Committing errors in documentation;
6. Permitting, aiding or abetting an unlicensed person to perform activities requiring a professional license;
7. Violating boundaries or crossing boundaries with a patient, including, but not limited to, engaging in sexual misconduct with a patient;
8. Practicing the medical profession fraudulently;
9. Practicing medicine while impaired by alcohol or drugs;
10. Conduct in the practice of medicine which demonstrates moral unfitness to practice medicine; and
11. Unauthorized release of patients’ personal information.

In addition to the above-mentioned types of misbehavior, there are more specific categories of misconduct that apply to medical professionals regulated by the New York OPMC.

What Is Professional Misconduct Specific to Physicians, Physician Assistants, and Specialist Assistants?

For example, and in addition to the categories of misbehavior set forth above, the following, more specific types of actions, when committed by physicians, physician assistants, and specialist assistants, constitute professional misconduct:

1. Abandoning or neglecting a patient under and in need of immediate medical care, without making reasonable arrangements for the continuation of such care;
2. Intentionally harassing, abusing or intimidating a patient either physically or verbally;
3. In the practice of psychiatry, any physical contact of a sexual nature between the psychiatrist and the patient;
4. Performing, or supervising the performance of, a pelvic examination on an anesthetized or unconscious patient, unless the patient or the patient’s authorized representative gives prior oral or written informed consent or the patient is in immediate need of medical attention and an attempt to secure consent would result in a delay of treatment which would increase the risk to the patient’s life or health;
5. Refusing to provide medical care to an individual because of that individual’s race, creed, color or national origin;
6. Permitting any person to share in the fees for professional services, except as authorized or required by law;
7. Failing to keep a record for each patient which accurately reflects the evaluation and treatment of the patient;
8. Failing to properly supervise persons who are authorized to practice only under the supervision of the physician;
9. Guaranteeing that satisfaction or a cure will result from the performance of professional services;
10. Ordering of excessive tests, treatment, or use of treatment facilities not warranted by the patient’s condition;
11. Claiming or using any secret or special method of treatment which the physician refuses to divulge to the New York State Department of Health;
12. While practicing in certain professional facilities, failing to wear an identifying badge which is conspicuously displayed and legible;
13. Entering into an agreement or arrangement with a pharmacy for the compounding and/or dispensing of coded or specially marked prescriptions;
14. As to all professional practices conducted under an assumed name, failing to post prominently at the site of such practice the names and the licensure field of all of the principal, licensed professionals practicing at that site;
15. Issuing prescriptions, for drugs and devices, which do not include the date written, the prescriber’s name, address, telephone number, profession and registration number, the patient’s name, address and age, the name, strength and quantity of the prescribed drug or device, and the directions for use by the patient;
16.  Failing to use scientifically accepted barrier precautions and infection control practices; and
17. Failing to comply with a signed agreement to practice medicine in New York State in an area designated by the New York State

Department of Education as having a shortage of physicians or refusing to repay medical education costs in lieu of such required service.

Circumstances In Which the New York OPMC Initiates Investigations

The New York OPMC initiates investigations against physicians, physician assistants, and specialist assistants in various circumstances. Four frequent scenarios are:

• Grievance. An individual patient of the physician, physician assistant, or specialist assistant, who thinks he or she has been subjected to professional misconduct, submits, to the NY OPMC, a written complaint against the physician.
• Colleague. A professional colleague, who suspects that a physician may have committed misconduct, reports the professional to the NY OPMC.

In New York State, all licensed health care professionals, including physicians, physician assistants, specialist assistants, must report colleagues whom it reasonably appears are guilty of professional misconduct. A licensed health care professional’s willful violation of his or her duty to report colleagues’ wrongdoing is itself misconduct.

• Referrals from Hospitals. If the physician is affiliated with a hospital, then a professional colleague, who suspects that the physician may have engaged in misconduct, may report the physician to the hospital’s professional practices committee. The facility’s professional practices committee, in turn, must inform the NY OPMC.
• Referrals from County Medical Societies. If the doctor is not affiliated with a hospital, then a professional colleague, who thinks that the doctor may have committed misconduct, may report the doctor to the county medical society. The county medical society, in turn, must inform the NY OPMC.

The Law Offices of David S. Rich, LLC skillfully defends physicians against allegations, which the NY OPMC is investigating, of professional misconduct. Even if the physician has committed the charged violations of laws or rules governing the practice of medicine, the Law Offices of David S. Rich, LLC may be able to bring out mitigating circumstances and to negotiate a favorable settlement.

On-the-Record Interviews

As stated above, the NY OPMC may offer the physician, physician assistant, or specialist assistant the opportunity to appear and, in an on-the record interview, to testify under oath about potential violations of laws or rules governing the medical profession.

At least 20 days before the on-the-record interview, the NY OPMC must give the physician written notice of: (1) a description of the conduct is the subject of the investigation; (2) the issues relating to the conduct that have been identified at the time of the notice; (3) the time frame of the conduct under investigation; (4) the identity of each patient whose contact with or care by the physician is believed to be relevant to the investigation; and (5) the fact that the physician may be represented by counsel and may be accompanied by stenographer to transcribe the proceeding.

Within 30 days following the NY OPMC’s on-the-record interview or, in a case where a stenographer was present at the interview, within 15 days after the NY OPMC receives the transcript of the interview, whichever is later, the NY OPMC must provide the physician with a copy of the report of the interviewer.

The physician, through his or her counsel, may submit written comments or expert opinion or medical or scientific literature that is directly relevant to the issues that have been identified by the OPMC.

If an investigation finds enough evidence to suggest misconduct, the case is presented to an investigation committee consisting of two physicians and one lay person drawn from the State Board for Professional Medical Conduct. The investigation committee can recommend to the Director any of these courses of action: a hearing, additional investigation, a dismissal of the matter, or non-disciplinary warnings or consultations.

If sufficient evidence suggesting misconduct is not found, then the NY OPMC terminates the investigation and closes the case. The NY OPMC notifies the respondent physician, by letter, of the OPMC’s closure of the case against him or her.

If you are a physician, a physician’s assistant, or a specialist assistant and the New York OPMC has invited you to testify under oath in an on-the-record interview, contact the Law Offices of David S. Rich, LLC.

Administrative Warnings

In less serious cases, the matter may be resolved with the issuance by the New York OPMC of an Administrative Warning.
An Administrative Warning is called for where, for example, there is professional misconduct of a minor or technical nature or of substandard medical practice which does not constitute professional misconduct.

An Administrative Warning is not publicly reported and is non-disciplinary. Instead, an Administrative Warning is a private admonishment that the NY OPMC believes either that the physician has violated laws or rules governing the medical profession or that the physician has deviated from best practices for the medical profession.

Formal Disciplinary Proceedings

In more serious cases, and upon recommendation of an investigation committee, the New York OPMC initiates, against the physician, physician’s assistant, or specialist assistant, formal disciplinary proceedings.

What Are The Penalties That Can Be Imposed In NY OPMC Disciplinary Proceedings? In formal disciplinary proceedings, the penalties which the State Board for Professional Medical Conduct may impose on physicians found guilty of professional misconduct include, among other penalties: revocation, suspension or annulment of the physician’s license; a monetary fine not to exceed $10,000; a censure; a reprimand; a requirement that the doctor pursue a course of education or training; or a requirement that the physician perform up to 500 hours of public service, in a manner and at a time and place as directed by the Board for Professional Medical Conduct.

How Can Physicians, Physician Assistants, and Specialist Assistants Settle New York OPMC Disciplinary Proceedings? Most formal disciplinary actions settle before litigation through the issuance of a consent order. A consent order is a document which states the NY OPMC’s findings of fact and the sanctions imposed. Consent orders, as well as determinations and orders, imposing professional discipline upon physicians and issued either by the Board for Professional Medical Conduct or by the Administrative Review Board, are available to the public online.

If the physician, physician assistant, or specialist assistant is not able to settle, with the NY OPMC, the formal disciplinary action, then the OPMC’s counsel serves the physician with a notice of hearing and with a statement of the charges that allege professional misconduct. The charges must concisely state the material facts but do not include the evidence by which the charges are to be proved.

The physician is entitled to file a written answer to the statement of charges.

Further, after the NY OPMC’s counsel’s service, on the physician, of the statement of charges, the OPMC’s counsel has a continuing duty to timely provide, to the physician, any exculpatory evidence. That is, the NY OPMC’s attorney bears a Brady-like duty to provide to the physician, as soon as practicable and on a continuing basis, any information or documents in the OPMC’s possession which tends to prove the doctor’s innocence.

What Happens In An NY OPMC Disciplinary Hearing? The physician and the NY OPMC try the case, before a hearing panel (also called a hearing committee) composed of three individual members, at a disciplinary hearing. Two of the individuals serving as hearing panel members must be doctors. The third hearing panel member must be a lay person.

The State Department of Education designates an Administrative Officer, who must be an attorney admitted to practice in New York. The Administrative Officer possesses the authority to rule on motions, procedures, and legal objections. Further, it is the Administrative Officer who drafts the conclusions of the hearing committee. However, the Administrative Officer is not entitled to vote.

An attorney for the NY OPMC serves as prosecutor.

The disciplinary hearing is not as a formal as a trial in court, but it takes place in a similar manner. The physician, physician assistant, or specialist assistant has the rights to appear and testify at the hearing; to be represented by a lawyer at the hearing; to call and examine witnesses; to cross-examine the prosecutor’s witnesses; to ask the hearing officer to issue subpoenas, on the physician’s behalf, requiring witnesses to appear, to testify, and/or to produce documents; and to present evidence on the physician’s behalf.

After the disciplinary hearing, the hearing panel issues a written order stating (1) its findings of fact, (2) conclusions concerning the charges sustained or dismissed, (3) a determination of guilty or not guilty on each charge, and (4) if there is a determination of guilty, a determination of the penalty to be imposed or the appropriate action to be taken and the reasons for determination. For the hearing panel to reach a determination of guilty, at least two of the voting members of the hearing panel must vote for that determination. The respondent physician is entitled to a copy of the hearing panel’s written order.

Further, the respondent physician, physician assistant, or specialist assistant has certain rights to appeal from any adverse order of the hearing panel.

* * * * * * * * * 

On behalf of physicians, physician assistants, and specialist assistants, the Law Offices of David S. Rich, LLC adeptly negotiates, with the New York OPMC, settlements of formal disciplinary proceedings. When a settlement can’t be reached, the Law Offices of David S. Rich, LLC vigorously defends the professionals in disciplinary hearings before hearing panels.

Return to Practice Areas page.