May 2016: The Office of Professional Medical Conduct

Publication Quarter: 
Spring 2016 (May)

Although the number of medical malpractice payouts in New York State decreased steadily between 2005 and 2014, the number of adverse actions reported to the National Practitioner Databank —including medical license actions and censures by the New York State Health Department's Office of Professional Medical Conduct (OPMC)—increased nearly 30 percent during the same period. A finding of misconduct by the OPMC can result in serious repercussions, ranging from a reprimand to license revocation and fines of up to $10,000. This month's tip takes a closer look at the OPMC's role in investigating and adjudicating complaints against medical providers.

The Role and Structure of the OPMC

In New York State, the OPMC and the state Board for Professional Medical Conduct are responsible for investigating and adjudicating complaints against physicians, physician assistants, and specialist assistants. The board is composed of both medical professionals and lay members who fulfill major roles in the disciplinary process by serving on investigation, hearing, and license restoration committees. The OPMC serves as staff to the board.

What the OPMC Investigates

The OPMC has the authority to investigate a wide range of issues, including:

  • Practicing fraudulently
  • Practicing with gross incompetence or gross negligence
  • Practicing while impaired by alcohol, drugs, or physical or mental disability
  • Being convicted of a crime
  • Filing a false report
  • Guaranteeing that treatment will result in a cure
  • Refusing to provide services because of race, creed, color, or national origin
  • Performing services not authorized by the patient
  • Harassing, abusing, or intimidating a patient
  • Ordering excessive tests
  • Abandoning or neglecting a patient in need of immediate care

The OPMC's jurisdiction does not extend to complaints about provider fees unless there is an allegation of fraud. Similarly, complaints about a physician's communication skills, attitude, "bedside manner," and office administration generally fall outside the OPMC's jurisdiction.

Filing a Complaint with the OPMC 

The public—including the provider's patients, friends, and family members—makes the majority of misconduct complaints. State law requires health facilities to report all disciplinary actions taken against medical professionals, as well as all instances of possible misconduct. In addition, state law requires licensed health care providers to report colleagues who they suspect may be guilty of misconduct.

Complaint Investigation and Adjudication

Complaints are reviewed by the OPMC's investigative and medical staff. If an investigation uncovers sufficient evidence of misconduct, the case is presented to an investigation committee, which can recommend a hearing, additional investigation, dismissal, or nondisciplinary warnings or consultations.

If there is insufficient evidence of misconduct, the investigation is terminated and the case is closed. A record of the investigation remains in the OPMC files for possible future reference. Complainants and physicians are notified by letter.

If the investigation committee finds sufficient evidence of misconduct, charges are filed against the physician and a disciplinary hearing takes place before the OPMC board. The hearing committee, which is composed of two physicians and one layperson, rules on the case and determines if a penalty is warranted.

Appeals

Either the licensee or the director of the OPMC may appeal the decision to a five-person Administrative Review Board consisting of three physicians and two lay persons. Once an appeal is filed, the Administrative Review Board has 45 days to hear and decide an appeal.

Penalties

Medical professionals found guilty of misconduct can face serious—sometimes career-ending—penalties. The Board for Professional Medical Conduct has the authority to:

  • Revoke or suspend a physician's license
  • Limit a physician's license
  • Issue a censure and reprimand
  • Order additional education and/or retraining
  • Levy a fine not to exceed $10,000 for each fining of guilt
  • Require community service of up to 500 hours

The OPMC also has the authority to monitor physicians who have been placed on probation by the board. Terms and conditions of probation may include reviews of randomly selected patient records, periodic visits to OPMC, or a practice monitor or chaperone.

The OPMC cannot direct a physician to reimburse a patient, change a diagnosis, or alter an opinion.

OPMC Findings Are Public Record

Final decisions, the charges on which they are based, and penalties are posted online. In addition, federal law requires that adverse actions be reported to the National Practitioner Data Bank. (We will examine the National Practitioner Data Bank in detail in a future tip.)

Conclusion

OPMC investigations are a serious matter and should be treated as such. FOJP is available to assist insured physicians who have been named in a complaint filed with the OPMC. Physicians who receive a letter of complaint from the OPMC are advised to immediately forward the letter to FOJP or HIC. Physicians also should inform their hospital's risk management team whenever an adverse outcome could potentially lead to an OMPC complaint or legal claim.