New York's Bill Requiring Public Disclosure of Physician Misconduct Charges Will Impact Medical Malpractice Litigation and Physicians' Reputations
by Jason D. Turken and John T. Seybert, Sedgwick, Detert, Moran & Arnold, LLP, New York, NY
On June 23, 2008, the New York State Legislature unanimously passed a Bill to strengthen and enhance the laws regarding the investigation of medical doctors for professional misconduct. The majority of the Bill takes effect on September 23, 2008, absent an unexpected veto by the Governor.
While the Bill is touted as a landmark law to "improve patient safety," it is primarily concerned with correcting deficiencies exposed in the prior laws which came to legislators' attention due to the widely-publicized allegation that New York physician Harvey Finkelstein, M.D. had improperly reused multi-dose medication vials in the administration of pain management injections to numerous patients. One patient of Dr. Finkelstein had concluded that he had contracted Hepatitis-C due to such an injection and, in 2004, notified the Office of Professional Medical Conduct ("OPMC") of the incident. His allegations were not made public and the matter was closed by the OPMC in 2005 without notification to the patient. In November 2007, it was disclosed to the public that Dr. Finkelstein's injection practices may have resulted in the infection of other patients. As a result, the Department Of Health ("DOH") notified thousands of other patients that they may also have contracted blood-borne illnesses due to Dr. Finkelstein's reuse of vials. It was later disclosed that Dr. Finkelstein had settled ten medical malpractice actions in as many years. The proponents of the Bill treated the circumstances involving Dr. Finkelstein as a paradigm to deter similar occurrences in the future.
The Bill is a major step for New York toward public transparency and accessibility with respect to information concerning misconduct allegations against physicians. Other states, however, have taken greater steps toward disclosure. For example, Ohio requires that professional misconduct hearings be public. A spokesperson for the DOH stated it did not propose that the Bill require the OPMC to conduct "open hearings" due to concern that the Bill "would not pass because of one provision."
While the Bill has a number of interesting facets, this article focuses on the new mandate for disclosure to the public of mere charges against a physician, i.e., prior to a hearing, and the new legal requirement that the DOH affirmatively review medical malpractice litigation to determine the potential need for administrative action, as well as the effect that this legislatively-required commingling of issues may be expected to have on the malpractice litigation.
The Bill Requires Public Disclosure of Misconduct Charges Against a Doctor
The Bill requires the OPMC, which is responsible for the investigation of medical providers' alleged professional misconduct, to make misconduct charges against doctors public prior to a hearing, and therefore prior to the resolution of the charges. Previously, the OPMC would not disclose charges publicly unless and until a doctor were found guilty following an OPMC hearing. The new law will require the OPMC to make the charges public within five business days if the Investigation Committee of the State Board of Professional Medical Conduct votes unanimously to proceed with the charges and hold a hearing. If the Committee's decision to proceed is not unanimous, it must then vote as to whether to make the charges public.
An obvious concern is that a physician's reputation might immediately be damaged based upon unproven charges, and the public disclosure of the charges may destroy or significantly impact the physician's business and livelihood. In order to curtail the premature, adverse impact on the doctor's reputation, the law also requires that the publication indicate that the charges are only allegations. Realistically, the disclosure requirement may nonetheless have the effect of discouraging some patients from seeking treatment from doctors against whom publicized misconduct charges are pending, and causing current patients to change doctors. The Medical Society of New York supported the Bill, but the president-elect of the Society advocated that it should be part of a larger legislative movement to lower medical malpractice costs for doctors.
Under the law, the OPMC will also be required to publicize the ultimate findings, conclusions, decisions and orders of the Committee. At that point, the publication of the information can certainly be anticipated to be persuasive to the public.
While it is difficult to accurately predict the future effects of the legislation, its effect on medical malpractice litigation involving physicians against whom OPMC charges have been commenced could be substantial. While the Bill seeks to curtail the prejudicial effect of mere charges upon separate, civil litigation by precluding the admissibility at a malpractice trial of the OPMC charges, and of any testimony by OPMC committee members, publication of the pending charges will likely lead adversaries to new areas of inquiry that would not necessarily have been pursued without the public revelation of the misconduct charges. Therefore, in preparation of their cases, both plaintiffs' and defendants' attorneys in medical malpractice litigation can be expected to begin conducting queries on the DOH website to discover pending charges against physicians and other providers.
The Bill Requires The Patient Safety Center To Review Pending Medical Malpractice Claims.
An important aspect of the new Bill that has received little attention is its mandate that the Patient Safety Center of the DOH continuously review medical malpractice claims, including reviews of pending actions, settlements, judgments and other resolutions. The DOH will be responsible to identify any potential misconduct by physicians possibly evidenced by the facts or circumstances of extant malpractice claims or potentially troubling patterns of involvement in malpractice litigation. The Bill provides that the OPMC "shall commence a misconduct investigation if potential misconduct is identified as a result of such review, which shall be based on criteria such as disposition frequency, disposition type including judgment and settlement, disposition award amount, geographic region, specialty, or other factors as appropriate in identifying misconduct." The Bill itself, however, does not charge any specific entity with the obligation to notify the Patient Safety Center of the malpractice claim.
It is conceivable that, while plaintiffs' attorneys may endeavor to utilize information about pending misconduct charges to, essentially, turn up the heat at the pre-trial phase of a malpractice litigation in the expectation of forcing a quicker and higher settlement, the potentially career-altering effect of the DOH's new duty to monitor medical malpractice claims and outcomes – and to refer physicians for potential administrative action by OPMC as a result – could increase physicians' motivation to dispute malpractice claims "tooth and nail," and discourage them from settling claims.
When the National Practitioner Data Bank was initially created to record medical malpractice judgments and settlements, and to make the compiled information available to a limited, commercial audience, including hospitals and other healthcare entities that employ staff physicians and extend credentials to private physicians authorizing them to admit and treat patients at the facilities, many physicians feared settling claims because they would be branded with the taint of settlement, even in cases in which they felt they were without fault, thus threatening their future ability to get hired or credentialed. Similar fears among physicians concerning the perceived unfairness in publicizing allegations may emerge when this law takes effect.
The advent of ready public access even to mere charges of professional misconduct does raise the bar for New York physicians. Pending charges may become an area of inquiry in seemingly separate and unrelated malpractice cases brought against a physician (or possibly in other litigation involving physicians, such as suits between physicians and health insurance carriers or managed care companies concerning fee reimbursements), forcing the physician to explain away or prove the lack of relevance of the administrative charges to the facts of the litigation. In addition, plaintiffs' lawyers may be able to divert defense attorneys' focus and resources from the precise facts and circumstances of a given malpractice litigation by simultaneously framing plaintiffs' claims as professional misconduct, alerting the DOH, and opening a new battlefront for the physician. If a plaintiff's complaint in a malpractice action causes the DOH to embark upon a wider investigation of the physician pursuant to the new law (particularly if a DOH investigation results in misconduct charges by OPMC), it may significantly complicate efforts to defend the original malpractice claim, potentially necessitating a broader and more costly defense and possibly adding layers of counsel to protect the physician's and his insurer's various legal interests.
The Bill serves the laudable purpose of informing patients about the quality of doctors so that the patients can make better decisions about their medical care providers. The Legislature recognized that "[t]he selection of a physician is one of the most important decisions that a patient makes about medical care and treatment." A potential, secondary effect, however, may be that the publication of physician misconduct allegations will further complicate some medical malpractice and other litigation involving physicians, possibly hardening the respective parties' positions and resulting in more protracted discovery and less swift settlement.
With the passage of the legislation, more information will be publicly available concerning the conduct record of medical providers, including new, unproven allegations of professional misconduct. Prior to the law taking effect, the disclosure of charges against a physician remained confidential and were not disclosed to the public unless the physician were convicted of them. While it is not certain whether the increased scope of publicly-accessible information will adversely affect the practices of physicians facing unsubstantiated misconduct charges, some negative impact upon the doctor's reputation and business can reasonably be anticipated despite website admonitions about allegations being unproven. Additionally, it is expected that the new law will increase the number of instances in which doctors will have to simultaneously defend themselves against medical malpractice allegations in the civil sphere and DOH investigations and OPMC proceedings in the administrative context.
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