Jerold E. Levine, Attorney At Law

O.P.M.C. & O.P.D. ATTORNEY

PROFESSIONAL CONDUCT ATTORNEY REPRESENTATION

An allegation of misconduct against a medical or other professional is a serious legal concern, and should be taken seriously from the start. Such complaints often escalate into detailed investigations of office files, government interviews, questioning of patients and employees, and other disruptive action against a licensed professional. Disciplinary proceedings can be instituted, with results that can devastate a professional’s reputation, even where no wrongdoing has been proven. When official misconduct charges are filed they are made public, and in many cases a formal hearing—an administrative trial—can lead to financial penalties, license revocation, and in some cases criminal charges.

Fortunately, affected professionals have legal resources available to them for protection, and should immediately seek guidance from counsel experienced in administrative agency investigations, prosecutions and appeals. The enormous power of the government in this area of law commonly is not understood. Agency investigators are not limited by the Constitutional restrictions that apply under many other laws, and the type of evidence which can be used against a professional may seem astonishing. Unfortunately, many doctors and other professionals realize all of this far too late—long after they have done significant damage to their legal position. Thus, in law as in medicine, preventing harm is better than treating harm.

MISCONDUCT COMPLAINTS & INVESTIGATIONS

Investigations into alleged professional misconduct are commenced upon the filing of a complaint with either the New York State Office of Professional Medical Conduct (O.P.M.C.), or the Office of Professional Discipline (O.P.D.), depending on the profession involved. Physicians, physician’s assistants, dentists, pharmacists, psychiatrists, psychologists, veterinarians and numerous other professionals routinely are investigated for misconduct. O.P.M.C. and O.P.D. employ very experienced investigators—including retired law enforcement personnel—who are mandated to thoroughly review any misconduct allegations.

O.P.M.C. and O.P.D. investigators have broad authority, and can pursue any course which might reasonably relate to the accusations. Among other powers, they can demand copies of a professional’s office records, they can obtain information from employees, and they can interview patients. Failure by a professional to cooperate with any part of the investigation can become a separate basis for disciplinary action, and there is a fine line between cooperating as much as required, but not so much that the professional’s legal position is jeopardized unnecessarily.

Nonetheless, sometimes misconduct complaints relate to matters not within the purview of O.P.M.C. and O.P.D. Where such cases occur, it is important that the government be limited from exercising improper authority, for it is in the nature of investigators to investigate regardless of legal jurisdiction. Further, where jurisdiction exists but the investigation has revealed no professional misconduct, investigators wrongly may attempt to continue searching. If they uncover any separate matter which seems incriminating, that matter can prompt an entirely new investigation. So it is important that a professional be advised about when and how to stop an arbitrary investigation.

MISCONDUCT DEFINITIONS & PENALTIES

New York law contains many definitions of professional misconduct which can lead to official discipline. They include, among others: negligence and gross negligence; fraud; incompetence; overtesting; unauthorized practice or procedures; standard of care violations; guarantees of favorable results; improper issuance of medication prescriptions; unauthorized release of patient information; abuse of a patient; sexual misconduct; substance abuse or addiction; practicing while impaired by alcohol, drugs or other condition; improper record-keeping; criminal conviction or engaging in criminal activity.

Depending on the particular case involved, the penalties for professional misconduct can be: license revocation; full or partial license suspension; fines up to $10,000 per violation; community service up to 500 hours; censure and reprimand; administrative warning; education and training. Additionally, where a license is not revoked, certain restrictions may be imposed, such as mandated compliance with specified practice guidelines, participation in alcohol or drug treatment programs, and various other directives.

O.P.M.C. & O.P.D. HEARINGS

While the particulars of procedure will vary slightly between a misconduct hearing held by the Office of Professional Medical Conduct or the Office of Professional Discipline, with either case the charges and evidence will be heard by a committee. Also present will be, first, an administrative officer (an attorney appointed by the government) who will rule upon motions, evidentiary issues, procedural issues, and objections by the parties; second, an agency attorney who will prosecute the case for the State; and third, the accused licensed professional, presumably represented by legal counsel. Witnesses may be called by both sides, and it is near certain that the government will have an ample supply of available witnesses to support its case. As a result, it is absolutely essential that the professional be correctly prepared for the hearing, and that any defense witnesses be selected carefully.

As noted above, the misconduct charges will have been made public by the time of the hearing, so some damage to a professional reputation may have occurred already. However, the matter can get much worse, because the findings of the committee also will be made public, and can be used against the professional not only in court cases (such as lawsuits) but in other government, hospital or similar institutional disciplinary proceedings. A professional must be aware of how evidence introduced at an O.P.M.C. or O.P.D. hearing may be used later, and take steps to limit future damage to reputation, employment and other interests.

In the case of an O.P.M.C. hearing, should the committee find the professional guilty of misconduct, a penalty or penalties will be imposed. Either party may appeal the committee’s determination to the Administrative Review Board for Professional Medical Conduct, and the Board’s determination may be challenged in court.

With O.P.D. hearing cases, the committee findings and recommendations are sent to the Regents Review Committee, and then to the Board of Regents for final disposition. Thereafter, the determination of the Board of Regents may be challenged in court.

In addition, O.P.M.C. or O.P.D. can use summary authority in certain special cases to bar a professional from engaging in practice pending final resolution of misconduct proceedings.

SEPARATE DISCIPLINARY ACTIONS

Licensed professionals must consider that, in addition to the immediate problem created by an O.P.M.C. or O.P.D. misconduct proceeding, there are ancillary legal and other consequences which can result. Sometimes these problems will occur simultaneously with the ongoing professional misconduct case.

Medical professionals are subject to disciplinary action by hospitals, which can result in the termination of residency, patient admissions, treatment privileges, and use of facilities generally. Other professionals can see similar results in their associations with institutions of all kinds. Conversely, where no O.P.M.C. or O.P.D. misconduct case has begun, a hospital or other institutional disciplinary action can be the precipitating event which leads ultimately to an O.P.M.C. or O.P.D. proceeding.

Further, even areas beyond the field of professional practice can be affected. As example, a mere allegation of misconduct by O.P.M.C. or O.P.D. can lead to the revocation of completely unrelated licenses (ie: firearm license). Since many government licenses require the holder to be a person of “good character,” where a professional misconduct proceeding raises an issue of character—and any alleged wrongdoing may suffice for this purpose—the unrelated licenses can be revoked.

PROFESSIONAL LICENSE RESTORATION

Where a professional’s license to practice has been revoked, there are processes which may be used to have the license reinstated. But the first step is to assess the accuracy of the information which formed the basis for revocation, together with any new information since that time. This is because, while the prior evidence may have been sufficient to cause revocation, new evidence and other information may mitigate the strength of the State’s earlier case, and may provide a meaningful basis for license reinstatement.

License restoration may be total, or the State may require various limitations and conditions upon reinstatement, such as: pre-reinstatement and/or ongoing psychological assessment; limiting the scope of the professional’s practice; supervision by another professional; adherence to specific guidelines or orders; ongoing successful treatment for substance abuse.

Finally, where a professional has been convicted of a criminal offense, the conviction may act as an automatic legal bar to regaining a professional license. In such a case, it would be necessary to obtain a Certificate of Relief from Disabilities before starting license reinstatement procedures.