To Interview or Not to Interview, That is the Question

By: Gregory J. Naclerio**

In the course of responding to your daily glut of e-mail, your phone rings.  At the other end is a long time friend and colleague who asks: “Hey, you practice health law, one of my clients – an ER doctor – got a letter from something called OPMC asking him to go to their office for an interview.  Should I let him go?  What could be better,” your friend muses, “than to let the Doctor tell his side of the story…”  While a simple question generally requires a simple answer, your colleague’s inquiry should trigger an entire analysis which will lead to counsel’s recommendation to the doctor to go to the interview or not.

THE BASICS: UNDERSTANIDNG THE PAYING FIELD

The Office of Professional Medical Conduct (OPMC) is the part of the New York State Department of Health which has the responsibility of investigating and if appropriate, prosecuting physicians for acts of professional misconduct.  While OPMC has the power to commence de novo investigations, generally, it will respond to complaints or news stories alleging physician misconduct.  Every complaint received by OPMC must be investigated.[1]  Complaints come from many sources such as irate patients or their family members, anonymous individuals, as well as other physicians or hospital administrators which have an affirmative obligation to report suspected physician misconduct.[2]  Recently, OPMC is believed to be reviewing medical malpractice settlements as reported to the National Practitioner Data Bank[3] to identify Physicians who have committed acts of negligence.  All these “complaints” must be reviewed by OPMC Investigators (the “Investigator”) who makes the initial decision to close a complaint after a desk review or to commence further investigation.  The additional investigation may include a personal interview with the complainant and a request to the physician (hereinafter, the “Physician”) for the patient’s chart.  The Investigator’s request for a patient chart is usually the first way the Physician becomes aware of an OPMC investigation.  Once the preliminary investigation is conducted, the Investigator can determine that no credible evidence of professional misconduct exists and will request that the case be closed.  On the other hand if the Investigator believes additional inquiry is needed, he can extend to the Physician the opportunity to appear at the OPMC offices for an interview (the “Interview”) with the Investigator and the OPMC Medical Coordinator (the “M.C.”).[4]

The second thing you need to know about the OPMC  “playing field” is what type of conduct incurs the wrath of OPMC.  Happily, this one is easy; all you need to do is become familiar of what constitutes “professional misconduct.”  A review of Ed Law §6530, 6531 and New York State Health Department Regulations 8 NYCRR §29.1, 29.2 and 29.4 will explain in detail what actions constitutes professional misconduct.[5]  The analysis is much like reviewing the Penal Law to ascertain what type of action subjects a citizen to criminal prosecution.  Thirdly, you must learn the procedure, burden of proof and rules of evidence that apply to OPMC actions from the filing of charges up to your remedies on appeal.[6]  This must be learned so as to put all your decisions in context.  You cannot play a game of chess and develop the strategy you need to win without knowing the moves each piece makes.  The same is true with an OPMC case.  You need to know all the options available to you in order to make an informed decision.  Lastly, you need to know the sanctions OPMC can impose upon your client if he pleads to or is convicted of professional misconduct.  These penalties range from a non-public Administrative Warning to a public Censure and Reprimand (C&R), up to a very public revocation of your client’s license to practice medicine.[7]

THE BASICS: GETTING THE PHYSICIAN’S ATTENTION

Generally, Physicians pay minimal attention to the business of the practice of medicine.  Anything other than the actual practice of medicine is deemed something a Physician doesn’t have time to deal with.  For you to succeed in the defense of a potential OPMC case you need to get the Physician’s full attention.

Someone once said that the only way to get a donkey’s attention is to “…whop him upside the head with a 2 x 4.”  To a certain degree the same is true with your Physician-client who is too busy “saving lives” to bother herself with the OPMC.  The 2 x 4 that you have is what can happen to her in the event of an adverse OPMC finding.  Even if you attempt to utilize this tactic, the Physician may retort:  “Counselor, even if OPMC proves their case they are not going to revoke my license.  Additionally, one of my former residents, now in his second year of law school, said I should plead ‘No Contest to negligence on more than one occasion’ so I formally admit nothing.”  The Physician is probably correct that she would not lose her license but this does not end the discussion.  You must advise her of the consequences of her decision by using a 2 x 4 something like the following:

Doc, you’re probably right that you won’t lose your license.  We could decline to go to the Interview and if formal charges are filed we could probably negotiate a stayed suspension of three years in a ‘No Contest’ disposition.  If you don’t want to put up a defense, the entire matter can be resolved in 3-4 months and you won’t have to waste your precious time meeting with me to prepare for the Interview, reviewing the patient’s chart in detail or taking time off to go to the Interview.  You will not only save time but legal fees as well.

Come to think of it Doc, the strategy you and your resident/law student devised could really give you some extra time off.  See, Doc, the quick fix you suggest will surely terminate the OPMC matter, but it will also leave you with some not so good parting gifts.

For example: (a) your name gets placed on the OPMC website[8] showing the charge to which you pled No Contest.

(b) you also get a cross link back to the OPMC website when one of your patients or future patients wants to check you out at the Health Department’s Physician Profile.[9]

(c) you then get the honor of having an entry under your name in the National Practitioner Data Bank.[10]

(d) since the information about your No Contest is public information, you may even make your town newspaper.  That should be real good for business.

(e) Managed Care Companies also check the OPMC website.  You probably don’t care because managed care companies “don’t pay enough anyway” but most carriers can dis-enroll you from their Panel with 30 day’s notice for “any reason.”  Being on the OPMC website could well be “any reason.”

(f) Medicare also reviews the disciplinary proceedings handed down by the State and may decide to commence their own inquiry.

So, when you figure that (i) the publicity could cause current patients to seek another PCP and new patients are not going to see a doctor who pled No Contest to negligence on more than one occasion; (ii) 2 or 3 of your six (6) managed care plans may decide to kick a negligent provider out of their plan; and (iii) Medicare could start an inquiry into your quality of care, the total effect of your colleague/law student’s idea just to roll over on a No Contest disposition could probably give you enough extra time to lower your handicap by 5 or 6 strokes.  That’s until you get sued for malpractice by the patient you involved in your No Contest plea.

While admittedly the above monologue is fictitious, the points it makes are quite real.  You need to impress upon your doctor-client that this is serious stuff.  While the doctor may feel the claims against her are “unjustified,” some trained OPMC investigator feels otherwise or he would have closed the case administratively.  To the Investigator there exists a valid claim of professional misconduct.  Hence, the ball is in the Physician’s court.

PRACTICE TIP:

Once you have the Physician’s attention, you need to meet with her to start preparing a defense.  Some guidelines are as follows:

 

a)      The Physician must come to your office for the initial meeting in order to get her complete attention.  If you go to the Physician’s office even after patient hours, she will get constant interruptions by staff or patient’s telephone calls.  You need a location where the Physician can give her OPMC problem full attention and that place is your office.

b)      Show the Physician you care about her and her problem by giving her your undivided attention.  You don’t want to go to a doctor’s office where the doctor rushes into the exam room, puts a stethoscope to your chest over your shirt, declares you have bronchitis and then bolts out of the room to see her next patient.  Handling an OPMC matter is serious as the livelihood of your client is at stake even if her license is not revoked.

c)      If you never handled an OPMC case, follow the course doctors take to learn a new procedure.  Bring a seasoned OPMC practitioner into the case as your “Special Counsel.”  Even if you have to waive your fee, you will be able to learn the procedure much like a resident learns from an attending surgeon.

d)      Doctors, perhaps more than other clients, are concerned about legal fees.  (In my judgment, it’s not like they can’t afford your fees but that they don’t like lawyers thanks to our medical malpractice brethren).  As part of your caring for your clients inquire if the Physician has purchased professional misconduct defense insurance as part of her general medical malpractice policy.  Both MLMIC and PRI offer this type of extra coverage for a modest fee.  Tell the Physician to check her policy because she may not even recall if she is covered.  If the Physician is covered by MLMIC have her contact the carrier to advise them she has retained you to defend the case.  Then, follow it up with a letter to MLMIC.  MLMIC provides up to $25,000 of defense costs in an OPMC case.  If the Physician has a PRI policy, have the Physician contact PRI and request that you be appointed as the Physician’s attorney of choice.  You will have to accept the PRI fee schedule in that case (No, you cannot charge the Physician the difference between the PRI fee schedule and your normal hourly rate).

e)      If you are requested by OPMC to provide one or more of the Physician’s patient charts, you will also be asked by the Department to “certify” the records submitted are true and accurate copies of the original chart.  There exists no legal authority for this request by OPMC and following the practice of the late T. Lawrence Tabak – the Dean of OPMC trial attorneys – I decline to do so.  This then forces OPMC, should the case go to a Hearing, to lay the proper foundation to have the records admitted.  No sense making their work any easier… especially if you get nothing in return.

 

THE BASICS: YOUR INVESTIGATION:

Where you start clearly depends on the allegation of professional misconduct; but it always is the same: you start at the beginning collecting facts and deciding upon your defense strategy.  The OPMC interview letter is supposed to give you the parameters of the OPMC investigation.  If the letter merely recites that the OPMC investigation is into the “care and treatment of patient Santa Claus” that is not sufficient!

PRACTICE TIP:

If you get a “care and treatment” letter, call the Investigator and remind him that it is OPMC policy to spell out for you, in general terms, exactly what they are investigating and what they wish to discuss at the Interview.  If the Investigator refuses, you have the option – which you must take – of speaking to the OPMC Regional Attorney to obtain that information.

 

Once you have the general scope of the investigation, you need to obtain the complainant’s entire patient chart.

 

PRACTICE TIP:

 

You should ask the Physician to introduce you to her office manager and she should be directed to get you three legible copies of the complainant’s chart.  One becomes your “virgin” office file copy; the second is your working copy; the third will be used by your expert if appropriate for the case.  All copies should be Bates Stamped. 

 

PRACTICE TIP:

 

The Physician and her staff must be ordered not to make any additions, deletions or omissions from the original patient chart.  That includes signing off on notes today that should have been signed off when the note was made.  Nothing puts a Physician in worse position before OPMC than being accused of “falsifying” the original chart.  I would much rather have a Physician who is “sloppy” than a Physician who is deemed “devious.”

 

PRACTICE TIP:

 

In the event the OPMC complaint alleges professional misconduct while the patient was in a hospital, the Physician should be directed to obtain a copy of her hospital Credentialing File.  If an allegation of professional misconduct is made to a hospital, the hospital must conduct its own quality assurance investigation.  That investigation may result in the hospital filing an NYPORT (New York Patient Occurrence and Tracking) form with the Department of Health.[11]  The hospital Administration will generally send any patient complaints to the department of the hospital in which the Physician is credentialed.  That department will then conduct a peer review and determine if the Physician “met the standard of care” or failed to do so.  The department’s review is then sent to the hospital’s Risk Manager and is reviewed by the hospital’s Quality Improvement Committee, a sub committee of the Board of Trustees.  A copy of the ultimate decision based upon this review is placed in the Physician’s Credentialing File.  If the hospital’s review has determined the Physician’s treatment of the complainant has “met the standard of the case” that is an important piece of evidence in your favor.

 

Your investigation commences with an in-depth review of the complainant’s chart along with the correlation of the allegations against the Physician to the chart.  Let the Physician take you through the chart and you should be asking probing questions as you go.  The probing questions will really depend on your experience with OPMC cases and your knowledge of medicine.  While you don’t have to be a pre-med major to handle an OPMC case, you can and should learn the relevant specific medical procedures and terms by talking to your client and doing research on the Internet.

PRACTICE TIP:

 

Don’t rely solely on the medicine as relayed to you by your client.  The client interview is a prime source for you to learn about the procedures being questioned by OPMC.  You must become facile with the area of medicine involving your client’s case.  Depending on the complexity of the case you may want to send a copy of the chart out to a Physician who is a specialist in the given area for an opinion as to the strengths and weaknesses of your case.  You should also run your theory of defense by your expert for her opinion and guidance.

 

If the allegations against your client do not implicate the practice of medicine, such as in a sexual boundary case, you need to conduct your investigation just as you would in defending a criminal case.  You commence by identifying potential witnesses, interviewing them and getting statements.  Depending on the facts you may want to retain a private investigator for these purposes.

 

WHY YOU SHOULD GO TO THE INTERVIEW:

The purpose of the Interview is to permit the Physician to answer the allegations made by the complainant by providing her side of the story and facts to support her position that no professional misconduct occurred.  The defense bar sought this opportunity to have the doctor’s position on the record prior to the filing of formal charges for many years and ultimately succeeded.  Prior to the change in the statute, the doctor would first be given notice of OPMC action after formal charges were filed.  Now, you have the opportunity to avoid the filing of formal charges and the angst such action will cause.

Thus, in my judgment, the Interview is a time for the Physician and her counsel to be proactive.  You are not at the Interview to be interrogated.  You are there to state your case and show OPMC that charges are not warranted and the matter should be closed.  The fact that OPMC invites you to an interview, gives the impression they are in control.  It should be better stated that you are exercising your right to provide needed information to OPMC.  While theoretically you are then in control of the Interview, it won’t seem that way.  However, you need to be aware of your statutory right to present your position and not be interrogated by an OPMC representative.  Thus, you need to control the meeting indirectly.  You do that through an in-depth preparation of the Physician who will present her case and present, if appropriate, medical literature to support her position.  As counsel you also must make sure that your client makes all her key points and, if need be, correct any “facts” relied upon by OPMC.  Thus, if you have a position you want to make known to OPMC that can pass your “smell test” and if your client makes a good presentation, as a caring, knowledgeable doctor, an Interview may be in order.

PRACTICE TIP:

Place all the key points you want the Physician to make on an index card and check them off when made.  If additional comments on a point are required, make a note to do so after the Physician speaks.

 

PRACTICE TIP:

The Interview is a peer review “discussion.”  You don’t play a passive role like a defense attorney on CSI.  You can

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