Health Law Pointers - Volume XI, No. 1
Reforming the Physician Disciplinary Process
Most people are well aware that the quality of health care delivered in our Western New York community is important not only to consumers (patients) and their families, but to licensed professionals, health care institutions, third party payers and the public. It should come as no surprise, then, that our State Legislature and Department of Health take an active interest in promoting patient safety and the quality of care. Recent changes to the physician disciplinary approach in New York reflect this concern and offer a dramatically different system in the process.
Health care professionals today are expected to faithfully, industriously and to the best of their ability, experience and talents, render care in accordance with all applicable professional and ethical standards. If their performance or conduct is questionable, they may be susceptible to charges of professional misconduct under the State Education Law (Sections 6530 and 6531).
Our Public Health Law (Section 230) requires certain professionals, and hospitals, to report professional misconduct promptly to the Office of Professional Medical Conduct (OPMC). This obligation to report is not discretionary; it is the law. Professionals who fail to comply with the reporting requirement may themselves be subject to professional misconduct proceedings, and hospitals whose administrators disregard this affirmative obligation may be the recipient of a Bureau of Hospital and Primary Care Services Statement of Deficiencies.
These rules effectively place certain individuals and institutions on the “front line” in working with the State Department of Health to assure proper oversight, reporting and discipline of licensed professionals. Dedicated telephone and fax lines are made available to facilitate this goal. Complaints are also solicited and frequently received from anonymous individuals, irate patients and family members.
Notwithstanding these allies and tools, there has been criticism that the disciplinary system should be more transparent and provide greater physician accountability, impelled in part by certain high profile cases involving gross physician misconduct. As a result, the State Legislature last year determined that the reporting system needed strengthening and enacted legislation (L2008, Chapter 477) to reassure the public that every effort would be made to uncover, report and act upon all instances of misconduct.
1. Cracks in the Confidential Nature of an OPMC Investigation.
The disciplinary process in New York is initiated by a complaint. OPMC is required to examine every complaint it receives but not every complaint results in disciplinary action. Some allegations are investigated but determined to lack credibility or are not sufficiently substantiated. An individual under review may elect to participate in a preliminary interview and seek a favorable conclusion to the investigation. If in the past the investigation was closed, the matter remained confidential. Historically, even if the matter was referred to an Investigation Committee for a hearing on the charges, the allegations remained confidential until after the hearing, and were published only if a finding of misconduct resulted.
Under the new law, charges filed in a pending investigation may be made public before a final determination on the matter is rendered. The law now mandates charges to be published on the Department of Health website within five (5) business days after the charges are served on the licensed professional if the Investigation Committee unanimously determines that a hearing is necessary. Should the vote not be unanimous, disclosure will depend on a second (and unanimous) committee vote.
Health care professionals and their counsel have every right to be concerned about this change in the law. Publication of the formal charges before a final determination is made on the merits of the allegations could irreparably harm the reputation and practice of the accused professional, given the enthusiastic and obsessive way many of these cases are reported in the media. The fact that release of the charges will be accompanied by a statement that “the charges are only allegations which may be contested by the licensee in an administrative hearing” offers little comfort to the health care professional whose competency and character may be maliciously maligned.
2. Disclosure of Findings.
The new legislation also requires the OPMC to publish case details including its findings, conclusions, decisions and orders. This additional detail will certainly be of interest to the plaintiff’s bar that may concurrently be pursuing a civil malpractice action against the named professional. The evidence contained therein may significantly affect pre-trial strategy and influence settlement negotiations.
3. Expanded Sources for Investigations.
In recent years, OPMC was reported to have examined medical malpractice settlements posted on the National Practitioner Data Bank during the investigation phase. Under the new law, the OPMC “patient safety center” is charged with conducting a “continuous review” of medical malpractice claims and disposition information to identify potential misconduct, based upon, but not limited to, specific criteria such as (i) disposition frequency, (ii) disposition type, (iii) disposition award amount, (iv) geographic region, and (v) specialty, and will be required to initiate disciplinary action if misconduct is suspected. The reviewed cases will not be limited to those where a finding of malpractice liability has been found, but will include cases settled without an admission of liability.
4. Physician Profiles.
At present, interested persons can access the State Department of Health home page (www.health.state.ny.us) and click on “Doctor Profile” under the “Current Issues” tab to gain access to certain information about physicians posted on an affiliated site (www.nydoctorprofile.com). The physician profile maintained therein provides information on the doctor’s medical education, the availability of translation services and disciplinary (legal) actions taken against the doctor. Listed doctors are invited to post optional information about their practice. The toll-free OPMC “hotline” telephone number (1-800-663-614) is also provided. The new law mandates regular updates of the physician profile as a condition for re-registration, and characterizes the failure to do so as professional misconduct.
It is always difficult to predict the impact of new legislation. For attorneys representing practitioners in the professional disciplinary process, the new provisions add a level of complexity and concern, and make early retention of legal counsel critical. One major concern is that early disclosure may immediately impact the practitioner’s hospital staff privileges and panel memberships, and affect credentialing or re-credentialing applications. The disclosure may also weaken any defense of allegations of medical malpractice in a pending or future civil proceeding. Thus, for plaintiff’s counsel contemplating (or litigating) a malpractice action stemming from the unprofessional conduct, the new rules offer the promise of a bonanza in the form of hitherto unavailable information about the conduct giving rise to the malpractice action.
The threat of public disclosure of the charges should stimulate a re-examination of customary strategies by counsel. There may be a distinct advantage to initiating early settlement discussions during the informal phase of the investigation if those negotiations can modify the charges initially proposed. Others may disagree, advocating that the disciplinary process changes call for an even more zealous contest of the allegations. The added expense of doing so may be covered by errors and omissions insurance policies that provide a defense for allegations of professional misconduct. All agree in any event that adverse findings in an OPMC proceeding have unwanted implications for the affected professional in other jurisdictions in which the individual is licensed and in credentialing decisions. Counsel and professionals alike should be forewarned: a new and dangerously improved disciplinary process is now loose.
Rule on Renewal of Expired Employment Agreement
Like other contracts, employment agreements for professionals often have an initial term and a renewal term. In some instances, the contract renews automatically for a specified period of time unless either of the parties gives timely notice of non-renewal. In other cases, contract renewal requires an affirmative act, such as a vote of the Board of Directors or notice of renewal by the employer.
What if the contract is for a specified term but does not contain express language for renewal? What happens in the event the contract expires but the employed professional continues to work for the practice, with annual increases in salary, but no change in title or responsibilities? Does New York law consider the employment contract to have been renewed, presumptively, for a one-year renewal period, as is the case for non-written (oral) contracts? Is the employee entitled to notice of termination of employment in such event?
This was the issue before the Court of Appeals in the recent case of Goldman v. White Plains Center for Nursing Care, LLC, decided on October 16, 2008. The Court ruled that continuation of employment beyond a fixed term of employment meant that the employee became an “at will” employee terminable at any time by the employer, and no longer would benefit from the lengthy notice period contained in the original contract.