What To Do When The OPMC Comes Knocking At Your Door

By MICHAEL S. KELTON, Esq.

You are sitting in your office, diligently administering to the sick and infirm, content in the knowledge that you are practicing good medicine. Suddenly, your receptionist buzzes you on the intercom and

announces that John Roe, an investigator from the New

York State Department of Health, Office of Professional Medical Conduct ("OPMC"), is on the line. Your heart begins to race, your face becomes flushed, and, with trembling hand, you lift the telephone receiver and answer the call.

Mr. Roe states that he is an OPMC investigator and that he is investigating your

treatment of patients Alice Abel, Betty Baker and Clara Charles. Mr. Roe requests that you send him copies of each of these patient charts. Mr. Roe further requests that you meet with him at a later date to discuss your care and treatment of these patients.

What you say and do next can profoundly affect the outcome of this investigation. Do you (a) tell Mr. Roe to "go to hell" and hang up the phone; (b) tell Mr. Roe that you have nothing to hide that you will send him the charts and speak with him freely at any time; or (c) politely thank Mr. Roe for the call, and advise him that your legal representative will get back to him shortly.

If you picked (a), you should, immediately upon hanging up the receiver, proceed tocall a medical school classmate who is aboard certified psychiatrist. If you picked (b), which is, unfortunately, what the overwhelming majority of physicians would do, you may be unwittingly participating in the demise of your practice and career. If you picked (c), you have taken the first step in the successful resolution of this investigation. Your next step should be to call an attorney who handles medical misconduct investigations, or if you are not familiar with one, call the State Medical Society's Office of General Counsel for appropriate referrals.

O.P.M.C. Investigations

The State Board for Professional Medical Conduct has the authority to investigate, on its own, any suspected professional misconduct, and must investigate each complaint received regardless of the source. Thus, if a complaint about you has been made, the State Board has no discretion but to commence an investigation.

Typically, the investigation is assigned to one of the investigators at OPMC, the prosecutorial arm of the State Board The investigator will interview the complainant or complainants and will thereafter contact you and request copies of the medical charts for the patients involved. The investigator is authorized by law to obtain and examine records of specific patients in an investigation and you may not raise the issue of patient confidentiality to prevent disclosure of such records for the limited purposes of the investigation. If the investigation involves issues of clinical practice, OPMC medical consultants may review the charts in conjunction with the clinical practice issues involved.

Beware of Interview Opportunity

In all investigations of cases to be referred to an investigative committee, the physician must be allowed an opportunity to provide an explanation of the issues under investigation. This is done in an "interview" with the OPMC investigator and, in some cases, an OPMC medical consultant. This interview is potentially the most dangerous aspect of the investigation, and should never be undertaken without representation by counsel. You are under no obligation to be interviewed by OPMC investigators, and you may choose not to be interviewed. While the statute states that the purpose of the interview is to allow the physician an opportunity to provide an "explanation" of the issues under investigation, it has been my experience that during these interviews physicians are more likely to provide OPMC with damaging admissions and inconsistent explanations at a time when the nature and scope of the misconduct issues are poorly defined and not ripe for response. The damage done by physicians during these interviews can be insurmountable, and, often, counsel retained after such an interview must devote most of his efforts to damage control, rather than affirmatively asserting his client's innocence.

There are some types of investigations where I do recommend that my physician client seize upon the opportunity to provide an explanation of the issues under investigation. However, this is never done until I have learned as much about the issues as can be determined, and then only if I am satisfied that the physician will make a reasonable, articulate and logical presentation to investigator. Some types of misconduct allegations for which I do encourage my clients to be interviewed involve quality of care and clinical practice issues. In these cases, most physicians are well equipped to defend the quality of care rendered to a particular patient. Examples of investigations in which I rarely permit my physician clients to be interviewed involve allegations of patient abuse, sexual abuse, drug or alcohol abuse, drug impairment psychiatric impairment and allegations of misconduct occurring outside the scope of the practice of medicine. In these cases, physician will rarely contribute anything which will have a positive effect upon the outcome of the investigation, and often, because of nervousness, lack of preparation or an insufficient understanding of the nature of the allegations, the physician will say things that will come back to haunt him later at a hearing. Decision to be interviewed is never routine; it is made on a case by-case basis.

Don't Practice Law

The main reason why physicians get themselves into trouble during misconduct investigations is that they believe that they are capable of handling the situation by themselves, of explaining everything in a nice, neat and tidy package, so that, after the investigator hears the physician's explanation, OPMC will have no choice but to agree that the physician has been unjustly accused. Physicians who think they can talk their way out of these investigations usually are sadly mistaken, and, unfortunately, usually find this out too late. Some OPMC investigators encourage physicians to talk to them without the benefit of counsel, suggesting that the physician has nothing to worry about and that the investigator only wants to hear the physician's side of story, so that the physician can help himself. While I have, by and large, found the OPMC investigative staff to conduct themselves in a professional manner, they do encourage physicians to talk to them openly, and rarely advise physicians that they should seek counsel before doing so.

A potential sanction for a finding of professional medical misconduct is the revocation of your license to practice medicine and the consequent destruction of your career. It is a penalty which can be every bit as serious, and in some instances more serious, than many criminal penalties. You should be no more inclined to voluntarily talk to an OPMC investigator who is investigating you for professional misconduct than you should be to talk to a police detective who is investigating you for the commission of a crime. If you have nothing to hide, and you are truly innocent of the charge, having a lawyer represent you will help assure that finding of innocence. If you do believe you have a problem, having a lawyer can make the difference between a proper resolution and an utter catastrophe.

Conclusion

From the moment you learn that you are the subject of a medical misconduct investigation, you should seek out and retain an attorney who is well versed in representing physicians in such matters. If you do not know such an attorney, you should contact the State Medical Society's Office of General Counsel and request referrals. You should never, under any circumstances, attempt to "represent yourself' in such an investigation. The most successful results are usually achieved if the investigation is handled properly and professionally from its inception.

About the author: Mr. Kelton is a partner in the Manhattan law firm of Lippman Krasnow & Kelton LLP. A substantial portion of his practice involves the defense of physicians in misconduct proceedings before the New York State Department of Health. He has lectured on the subject to bar groups and at medical seminars.