Readers of the Buffalo Law Journal are well aware that the quality of health care delivered in our Western New York community is important not only to 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 abilities, 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 Legislature last year determined that the reporting system needed strengthening and enacted legislation (Laws of New York 2008, Chapter 477) to reassure the public that every effort would be made to uncover, report and act upon all instances of misconduct.

Confidentiality not guaranteed

The disciplinary process in New York is initiated by a complaint.

The 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 sufficient substantiation. A person under review may elect to participate in a preliminary interview and seek a favorable conclusion to the investigation.

In the past, if 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 Web site within five 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 (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.

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 plaintiffs' attorneys, who may concurrently be pursuing a civil malpractice action against a named health-care professional. The evidence contained therein may significantly affect pretrial strategy and influence settlement negotiations.

Expanded sources for investigations

In recent years, the 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. Those reviews are to be based upon, but not limited to, specific criteria such as the frequency, type and award amount of a disposition, the geographic region in which the incident occurred and the area of medical specialty. The OPMC is now 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.

Physician profiles

At present, those interested can access the state Department of Health home page, 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, nydoctorprofile.com.

The physician profiles there provide information on a 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, 800-663-614, is also provided. The new law mandates regular updates of the physician profile as a condition for reregistration, and characterizes the failure to do so as professional misconduct.

Assessing the impact

It is always difficult to predict the impact of new legislation. For attorneys representing practitioners in the professional-discipline 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 recredentialing 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 a 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 changes to the disciplinary process 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 observers will agree 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.

Lawrence Ross is a member of Hurwitz & Fine PC and focuses his practice on health law, taxation and employee benefits for businesses and corporations. He can be reached at lmr@hurwitzfine.com.