Reforming New York's OPMC: curative or cosmetic surgery? — Part 4 - Office of Professional Medical Conduct - standards of medical care

Townsend Letter for Doctors and Patients,  July, 2002  by Marcus A. Cohen

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Since the summer of 2001 the Townsend Letter has published three installments of a series about the state boards that discipline physicians. (Every state has at least one.)(1) The series has used New York's board, the Office of Professional Medical Conduct (OPMC), an agency in the state Department of Health (DOH), to exemplify the difficulties in identifying and prosecuting doctors who fall below community standards.

Unlike medical societies and certification boards for clinical specialties, which can deny membership or decertify physicians but not revoke their license, the state boards can oust them from practice. Thus, to an extent not generally appreciated, these bodies have power to affect both the quality of treatment and access to treatment. Thoughtlessly or unfairly wielded, this power most endangers people unable to benefit from standard therapy -- patients whose well being or lives may depend on the availability of therapeutic options.

This April, TLfDP published a digest of testimony presented at a New York Assembly hearing on the OPMC (conducted 1/31/02), which addressed allegations of due process abuse. (2) The session opened with presentations by the director of the OPMC and the general counsel of the DOH. Predictably, they stated that the OPMC affords physicians investigated and tried for misconduct the panoply of procedural protections due them. (3)

The Assembly members presiding over the hearing then questioned the DOH officials for two hours, attempting to understand the OPMC's criteria for weeding "bad" doctors from the 60,000 physicians licensed in New York. This frustrating Q&A period offered little insight into how the agency decides to prosecute; but it did spotlight numerous ambiguities and inconsistencies in the OPMC's handling of the disciplinary process. (4)

For the next nine hours, all the speakers expressed dissatisfaction with the agency's performance. Most alleged blatant disregard for due process (especially in the OPMC's investigation of complaints), and pervasive bias in the hearing and review stages of cases proceeding to trial. (5) Patients and relatives of patients claiming serious mistreatment by doctors lambasted the agency for ignoring their claims, or for recommending dismissal of charges or mild punishment where revocation of the doctor's license seemed a more fitting penalty. (6)

Twenty-seven years ago, when New York transferred authority to discipline doctors from the Department of Education (DOE) to the DOH, government officials and members of the medical community voiced concern about the shift; they noted that the DOE had extensive and lengthy experience policing the professions, the DOH hardly any. (7) The doubters couldn't block the transfer; but they did manage to keep the power of final determination (providing external review of OPMC actions), in the hands of the Board of Regents, who head the DOE. (8)

Proponents of a full transfer got their way in the early 1990s, after recurrent scathing criticism of the OPMC for delays in investigating complaints and allowing malpracticing physicians to "slip through the cracks" in the disciplinary process. Legislative committees overseeing the OPMC, independent professional groups, and the press raised the loudest alarms. The proponents focused attention on the 'extra step' and time taken by the Regents in final determinations, downplaying signs of mounting due process abuse by the agency. (9)

Now, a decade after the OPMC obtained total control of the disciplinary system -- from investigation of complaints to in-house review of hearing panel recommendations -- the press is again fingering the agency for slipshod or bungled prosecutions and inexplicable, inconsistent actions. (10) Only now, one chamber of New York's bicameral Legislature perceives abuse of due process as a major, urgent problem: thus, the hearing by the Assembly this past January.

What are the prospects for OPMC reform? How effective would the reforms aired to date be in quieting cries of denial of due process? Don't hold your breath! Lower expectations for curative change! If the testimony at the Assembly session hit near the truth, the agency may indeed have morphed into a prosecutor's dream, a defendant's nightmare; so far, however, the Governor, his Republican allies in the New York Senate, and the Health Commissioner the Governor appointed (and apparently continues to back), see little awry. Instead, maybe the "fix" needed, suggested spokesmen for several groups representing the "public interest" at the hearing, are fewer restraints, so the OPMC can efficiently nab more "bad" doctors. (11)

Consider the following excerpts from the OPMC hearing transcript.

In closing her presentation, Pat Smith, President of the Lyme Disease Association, informed the presiding Assembly members that "some elected officials in New York feel there is no problem with physicians treating Lyme.... We have been told very particularly in the meeting with some Senators that there is absolutely not a problem. This has no chilling effect on your physicians. I can personally tell you my daughter, who moved to New York City and lives and works there, cannot be treated for her Lyme disease. She has had Lyme for 13 years; very serious heart problems, seizures, due to the disease. She has to come back to New Jersey to get treatment because in the city the Lyme doctors.., are continuing with patients that they have, but they won't take on any new ones, and others have deserted 'the practice of Lyme disease."(12)