By Tammy L. Riddle, Esq.
No profession is immune from the spotlight that the #MeToo era has placed on the upsetting history of sexual misconduct, bringing a call for stricter policies and procedures to prevent misconduct and swiftly investigate the same.
When it comes to physician misconduct, allegations may be made by other employees or by patients. In New York, employees can be protected and notified of their rights through internal sexual harassment prevention policies and required employee sexual harassment prevention training. Legislation was recently passed in New York State imposing both stricter policy requirements and an annual employee training pursuant to the Labor Law. The law applies to all employers.
The above is an internal process available to employees or those working with physicians and would not be available to a patient alleging misconduct. Internal complaints would likely be handled by a member of the human resources department and the results of the investigation should be documented and may be disclosed to the complainant and the physician.
In contrast, there a couple of ways a patient can make a complaint of misconduct against a physician.
Medical or Quality Assurance Review Committee
Allegations of sexual misconduct by physician against a patient may be handled by the medical or quality assurance review committee. In most states, including New York, pursuant to both the Education and Public Health Law, these proceedings are privileged and the contents of such are not subject to disclosure. Similar to an effective sexual harassment prevention policy, the medical review committee must follow its policies that should already be in place for investigating complaints of misconduct. The results of the investigation are typically kept confidential and are not kept as part of any physician-employee file. Any disciplinary action should be consistent with past practice to minimize any adverse action taken by the physician against the employee.
New York State Office of Professional Medical Conduct (OPMC)
New York OPMC investigates complaints about physicians, physician assistants, and specialist assistants, and monitors practitioners who are subject to Orders of the State Board for Professional Medical Conduct.
After a complaint is received, OPMC and medical staff reviews and investigates the allegations. Complaints to OPMC are kept confidential. However, statement of charges or final disciplinary actions are made public. A hearing will be held if there is sufficient evidence. If an investigation uncovers sufficient evidence, the case is presented to an investigation committee. The committee can recommend to the Director any of the following: a hearing, additional investigation, a dismissal of the matter, or non-disciplinary warnings or consultations. If the investigation committee finds evidence suggesting misconduct, charges are filed against the physician.
The matter will then proceed to a disciplinary hearing before a committee of the Board for Professional Medical Conduct. The Board for Professional Medical Conduct has the authority to revoke or suspend a physician's license, issue a censure and reprimand, order education and/or retraining, levy a fine, or require community service. (See https://www.health.ny.gov/professionals/doctors/conduct/frequently_asked_questions.htm#miscondct).
State or Local Police
Patients can always file complaints with the State or local police and should consider doing so depending on the nature of the conduct at issue.
Depending on the nature of the misconduct, the physician-employer could have several different reporting obligations resulting from the misconduct allegations. One of the obligations could be to state or federal authorities if the conduct involves a minor. Other reporting obligations may exist to the National Practitioner Data Bank or State Licensing Board.
National Practitioner Data Bank
There may be an obligation to report the conduct to the National Practitioner Data Bank (NPDB) and/or other agencies depending on the conduct at issue. The NPBD is a web-based repository of reports containing information on medical malpractice payments and certain adverse actions related to health care practitioners, providers, and suppliers.
Federal regulations authorize eligible entities to report to and/or query the NPDB. Individuals and organizations who are subjects of these reports have access to their own information. The reports are confidential, and not available to the public. (Id.)
Physician-employers can protect and prevent against sexual misconduct in the workplace against other staff members by maintaining the appropriate sexual harassment prevention policies and training. Furthermore, employers should be mindful of the different processes available to investigate allegations of physician misconduct by patients and the reporting obligations that may flow from those allegations to minimize employer liability for failing to act in response to such claims.