Negotiations have concluded in a three-way agreement on legislation A.11136 (Gottfried)/S.8298 (Hannon) addressing infection control practices and the procedures and operations of the office of professional medical conduct.

The bill balances additional due process protections for physicians with modest changes to the procedures and operations of the office of professional medical conduct (OPMC).

The following is a brief description of the important provisions of the initial proposal along with a summary of the final terms within the approved legislation. Unlike what you often read in the newspaper this information is accurate.

Making charges public

The several facets of the bill which have enjoyed much press attention include provisions which would make public the charges served against a physician. It is important to note first that charges are served only after an investigation committee within OPMC, comprised of two physicians and one lay person, has reviewed the evidence collected through the investigation and determines by a majority vote that a hearing is warranted. The vast majority of complaints never reach this stage. (Of the over 8000 complaints filed with OPMC last year, less then four hundred resulted in a hearing). Importantly, MSSNY secured changes in the legislation which now permit publication of the charges only when there is a unanimous vote of the investigation committee that a hearing is warranted. Further, the bill states, that if the investigation committee is not unanimous in its vote for a hearing, the members of the committee must vote a second time on whether to make the charges public. If that second vote is not unanimous, then the charges cannot be made public.

HMO Duty to Report

Provisions had been included in the original bill which would have required HMOs to report termination of a physician's contract premised on "alleged incompetence or malpractice". These provisions were removed at MSSNY's urging from the bill.

Random and Unannounced Surveillance Visits

Provisions in one of the physician discipline bills actively considered by the legislature would have allowed the DOH to conduct random and unannounced surveillance visits to the offices of private and public health care providers. These provisions were not incorporated in the agreed to bill.

Professional Misconduct for Failure to Display a Poster About OPMC

Provisions in the original discipline bill would have required physicians to post in their offices an official OPMC notice containing information on how to access physician profiles and OPMC disciplinary actions and would have made non-compliance an act of professional misconduct. The approved bill removes the poster requirement. Instead the physicians will only be required to display a pamphlet which the Commissioner will develop which describes a variety of department programs including the DOH smoking cessation program, public health insurance program, health and quality improvement information, the patient safety center and physician profiles. Physicians must make the pamphlet available in their reception area.

Access to Licensee Medical Records

The original bill would have allowed OPMC to more easily obtain a physician's own personal medical records if there is reason to believe that he or she may be impaired by alcohol, drugs, physical disability or mental disability. A line of court cases already permit such access when such records are subpoenaed by the BPMC. The agreed to bill limits access to such records only to instances where the record may be relevant to the alleged impairment or relevant to an inquiry into a report of a communicable disease. No order seeking to obtain access to such records can be served until the licensee is notified and provided an opportunity to be heard.

Enhanced Infection Control and Improved Investigation Practices

The approved bill continues the current requirement that physicians complete infection control training every four years but adds an additional course component on Hepatitis C transmission, requires that the course be updated on a proactive basis and extends the requirement for completing the course to medical school students, residents, and physician assistant students.

The approved bill would require licensees to report any suspected 'health care disease transmission' originating in their practices to the patient safety center within one day of becoming aware of such suspected transmission. Health care disease transmission is specifically defined under the bill to mean "the transmission of a reportable communicable disease that is blood borne from a health care professional to a patient or between patients as a result of improper infection control practices by the health care professional".

The approved bill authorizes DOH to disclose information to the public as needed regarding public health threats that come to light in the course of an OMPC investigation, notwithstanding otherwise applicable confidentiality provisions.

The approved bill states that the failure to respond to record requests by the State or local health department in conjunction with an inquiry into a report of a communicable disease constitutes professional medical misconduct. This is designed to facilitate communicable disease investigations.

The approved bill requires DOH to conduct a study and issue a report by January 1, 2009 as to whether restricting the use of multi-dose vials for the packaging of medications and requiring the use of disposable medical equipment engineered for single use is viable.

The Newsday Article Fails To Set Forth The Additional Physician Due Process Protections Described Below Which Have Been Incorporated in The Agreed To Bill.

1) Additional language was added to enhance due process for physicians. Specifically, the language would require that:

• 20 days prior to the interview, a licensee must have written notice of:
• a description of the conduct that is the subject of the investigation
• the timeframe of the conduct under investigation
• the identity of each patient whose contact with or care by licensee is believed to be relevant to the investigation
• the fact that a licensee may be represented by counsel and may be accompanied by a stenographer. (Transcription costs are borne by the licensee and the state must be provided a copy of the transcript within 30 days of the interview). (Statutory authorization of use of stenographer is NEW although by letter dated in 2005, OPMC effectuate this practice.)
• the licensee may submit medical or scientific literature that is materially relevant to the issues that have been identified by OPMC at any time

• Within 30 days after the interview, or in a case where a stenographer was present at the interview, within fifteen days after OPMC receives a copy of the transcript, a licensee must be provided with a copy of the interviewer's report.

• Licensee must be promptly given written notice of issues identified subsequent to the interview. (Currently a licensee must be given written notice of issues identified subsequent to the interview )

• Requires that if the Director determines that the matter shall be submitted to an IC, the IC must be convened within 90 days of the interview.

• If an investigation committee (IC) is convened, the Director of OPMC must provide the IC with relevant documentation including but not limited to: the original complaint; the report of the interviewer and the stenographic record if one was taken; the report of any medical or scientific expert; copies of relevant patient records and a report of any record review; the licensee's submissions; and any relevant medical or scientific literature.

• If the Director determines to close an investigation following an interview, the OPMC must notify the licensee in writing.

2) Language was also added to incorporate a specific statutory requirement that would require OPMC to provide the licensee with any information or documentation in the possession of the OPMC which tends to prove the licensee's innocence. This obligation becomes effective after service of the charges upon the licensee and is expressly stated to be a continuing obligation on OPMC. Although there is no current requirement, there is a letter opinion which had been issued by DOH counsel several years ago which requires such disclosure to be made.

3) Additionally, language was added to provide a licensee with an avenue to re-open consideration of a closed disciplinary proceeding. The licensee may file a petition with the Director of OPMC who must review the matter and after consulting with counsel determine whether there is new and material evidence that was not previously available which, had it been available, would likely have led to a different result or whether circumstances have occurred subsequent to the original determination that warrant a reconsideration of the measure of discipline. If the Director agrees to join the licensee in the application, the Chair of the BPMC must decide to grant or deny the application.

This application process is not available to a licensee against whom a penalty of revocation of license or annulment of license or registration is imposed.

In summary this bill is a fair and intelligent reconciliation of the objectives of public protection and physician due process. Moreover, it will be monitored closely as its provisions become operational to make certain that these objectives are realized. 

June 21, 2008

Doctor discipline bill may hinge on malpractice changes

BY MICHAEL AMON | michael.amon@newsday.com

Passage of a landmark physician discipline bill may hinge on whether state lawmakers and Gov. David A. Paterson also can agree on a package of proposals long desired by doctors to reduce the risk of lawsuits and their malpractice insurance costs.

Defying Paterson on a bill he proposed, state Republican lawmakers said they want to address not only disciplinary matters but also rising malpractice insurance premiums that have driven doctors out of business.

"There is an urgent need to address malpractice costs as they are affecting the consumer on Long Island and New York City," said Sen. Kemp Hannon (R-Garden City), chairman of the Senate Health Committee. Malpractice insurance premiums increased 14 percent last year and then 15 percent this year.

A Paterson administration official who spoke on condition of anonymity said the governor opposed linking physician discipline and malpractice costs. Supporters of Paterson 's bill said the compromise efforts were an attempt to defeat the legislation, as another powerful lobby, trial lawyers, opposes many efforts at tort reform, that is, changes in malpractice law more favorable to doctors.

"It's the kind of horse trading that should be rejected," said Blair Horner, legislative director for the New York Public Interest Research Group. "It's a strategy to either kill or change the proposal."

Lawmakers met administration officials Friday afternoon but reached no agreement, Hannon said. The meeting comes as time runs out for the discipline measure this regular legislative session, which is due to adjourn Monday. The legislature may reconvene next month but would be busy addressing the budget, Hannon said.

Paterson 's bill would give the state Department of Health more power in conducting probes of physicians, make public the charges of professional misconduct filed against doctors, and require the state to investigate doctors with long malpractice histories. It came after criticism of the state's handling of the Dr. Harvey Finkelstein case on Long Island .

Physicians oppose parts of the bill. They would be "100 percent behind" a patient safety bill that includes insurance premium relief and changes in malpractice law, said Dr. Michael Rosenberg, president of the Medical Society of the State of New York, which advocates for the state's 65,000 doctors. The Medical Society has begun a radio advertising campaign on the issue in Albany .

One compromise discussed Friday was having the Assembly pass a measure making it cheaper for physicians to qualify for state-funded excess liability coverage, said Sen. John Flanagan (R-East Northport), who sponsored a similar measure that passed the Senate in April.

Complicating matters is that a medical malpractice liability task force convened by former Gov. Eliot Spitzer has yet to make recommendations on insurance premiums or tort reform. "That's left everybody hanging," Hannon said.