Physicians and Physician Assistants
New York Attorneys for Physicians and Physician Assistants
As a leading healthcare law firm in New York, Joseph Potashnik & Associates has been representing physicians and registered physician assistants for more than a decade. We have the experience and knowledge to launch an effective defense for clients facing the New York State Office of Professional Medical Conduct (OPMC) at all levels of professional misconduct prosecutions and investigations.
And there have been many. Professional misconduct is in a way the catch-all term for the myriad offenses listed in the state Education Law. The list covers at least 40 types of conduct deemed as unprofessional. Physicians found to be in violation of any one of them are subject to professional discipline.
In our years representing New York physicians, we’ve encountered all types of professional misconduct. While this list is not all-inclusive, some of the most common OPMC cases we’ve seen include:
- Incompetence or negligence on one or more occasions
- Fraudulent practice, including billing issues with insurance carriers
- Poor record keeping
- Conviction of a crime, in any jurisdiction
- Disciplinary actions in states other than New York
- Breaching boundaries with patients
- Providing false statements on license renewal applications
- Practicing out of the scope of profession
- Violations of HIPAA
- Failure to supervise staff
- Permitting unlicensed staff to perform duties that demand a medical license
- Being morally or mentally unfit
- Practicing under the influence of alcohol or drugs
Understanding the OPMC Investigative Process
Professional misconduct investigations in New York are rather complicated, so we’ll outline how they work on the most basic level so you know how to act if you find yourself a target of one.
Once a misconduct complaint is filed, the OPMC begins to investigate the allegations. The case is forwarded to the regional OPMC office where the physician is registered or practices, and the office typically notifies the physician by phone or mail that an investigation has been opened. They may also request an interview or ask the physician to provide patient records for their review.
While physicians are obliged to provide documents when asked, they are not obliged to agree to an interview. For your own protection, it’s recommended not to speak with any investigators before seeking legal advice. Even if you feel you have nothing to hide, taking an interview without legal counsel is dangerous.
The scope of the interview may be wider than you initially think. Any information physicians provide may be later used against them, or be used to develop new evidence for new charges.
The lawyers here at Joseph Potashnik & Associates insist on meeting with the client, and then speaking with the OPMC to determine if it’s advisable for the client to meet with investigators. In cases where a physician does agree to an interview, the OPMC office creates a report of interview made available to the physician.
OPMC Investigation Committee
If the initial investigation finds sufficient evidence of misconduct, the case is referred to the Investigation Committee. The committee is made up of two physicians and a layperson, and they’ll further review the case to determine if a disciplinary hearing is needed.
Formal disciplinary charges are drafted at this time, with the possibility of the charges becoming public if the committee’s decision to move forward was unanimous. If the physician is determined to pose an immediate and serious risk to the public health, the committee may recommend their license be summarily suspended prior to a hearing.
When cases move forward to a hearing, it goes before a hearing committee, again made up of two physicians and a layperson. Even though an administrative law judge is present at the hearing, the hearing committee members are the ones who decide on innocence or guilt. If they find misconduct has been committed, the committee will then make a decision on the penalties.
OPMC Investigation Penalties
A number of penalties are available for medical disciplinary cases in New York. Some of the most severe include license revocation, annulment or limitation. Others include probation, suspension and reprimand. Community service, heavy monetary fines and retraining are additional penalty possibilities.
The majority of OPMC cases are resolved prior to reaching the hearing stage. The most common way to resolve disciplinary matters is with an application for consent order, which is the equivalent of a plea bargain in criminal proceedings. With an application for a consent order, the physician must admit wrongdoing but may face less severe penalties for doing so.
Appealing a Hearing Committee Decision
A physician or the OPMC may file an appeal of the hearing committee’s determination, which then undergoes a review by the Administrative Review Board. Three physicians and two laypersons make up the ARB. If required, the next step is challenging ARB or the hearing committee decision in state court under CPLR Article 78. To win these cases, the physician must prove that the agency’s decision was capricious and arbitrary.
Legal counsel can greatly assist New York physicians under investigation by the OPMC. Call the offices of Joseph Potashnik & Associates today.