N.Y. Gov. Paterson Seeks Stronger Oversight to Catch Bad Doctors

By Valerie Bauman | May 15, 2008

New Yorkers would be let in on the secret when their doctor is charged with misconduct under a proposal by New York Gov. David Paterson.

The measure would end the protection for doctors against disclosure of the charges until a final determination is made.

Paterson is introducing a broad patient safety measure designed to tell the public more about everything from physician drug use to infectious disease risks. It addresses concerns raised by past detractors, including a critical 2005 report from the New York Comptroller’s Office that found the state could do much better at rooting out bad doctors.

“It signals that the health department is going to get tough on dangerous doctors,” said Blair Horner, a spokesman for the New York Public Interest Research Group.

The proposal was partially prompted by Long Island anesthesiologist Dr. Harvey Finkelstein, who health officials said dipped syringes more than once into vials of medicine, contaminating the drugs and infecting at least one person with hepatitis.

The bill would give more power to the state Office of Professional Medical Conduct, which monitors and disciplines physicians.

“New York is in line with efforts of other states, and really trying to strengthen the information that comes to the office of professional medical conduct,” said Lisa Robin, senior vice president of member services for the Federation of State Medical Boards. “I know much of it reflects the Federation’s policies, with increasing the reporting requirements.”

Any professional discipline charges would be made public. Right now the public isn’t notified of physician misconduct unless and until the doctor is found guilty. Charges are issued after an investigation is complete, which can take an average of about six months.

State law is currently silent about when officials can disclose charges of professional misconduct to the public, but attorneys for the state say legal precedent requires a legislative change before misconduct charges against a doctor can be released.

The comptroller’s office found that the OPMC was thorough in its investigation of cases of potential misconduct, but wasn’t proactively rooting it out. Instead, the report said the OPMC relied primarily on referrals from outside sources _ which didn’t always let them know about every instance of potential misconduct.

This has hindered the office’s ability to protect consumers.

“Some of the older reporting and disciplinary things had more to do with hospitals,” New York Health Commissioner Dr. Richard Daines said. “Now we’re carrying it into office-based surgery and office-based practices, so we have reporting and oversight.”

Paterson’s proposal would require the OPMC to continuously review medical malpractice claims reported to the Department of Health to identify potential misconduct and investigate those instances.

“These are common sense measures that I think most New Yorkers would be surprised aren’t currently the law,” Horner said. “Sadly it’s been a long time since anything serious has been done to improve patient protection in New York, and we think this is a good step in that direction.”

Courts would also be required to report to OPMC any time a doctor was sentenced for misdemeanor or felony offenses. Health officials say that right now they eventually find out about criminal sentences, but the bill would get them that information much faster.

Another major change would be that the proposal would also extend existing laws on infection control to keep up with the changing world of medically transmitted infections.

The infection-related aspects of the proposal were, in part, a reaction to Finkelstein’s story.

The investigation was triggered in December 2004 health officials in Nassau County found two of his patients had hepatitis C. Since then, Finkelstein has said he corrected his method.

The state Health Department didn’t determine until 2006 that it was necessary to notify thousands of Finkelstein’s patients that they should be tested for HIV and hepatitis.

“Over the course of the last few months, in looking at the Finkelstein case, it has been determined that we need a more aggressive stance,” said Joseph Baker III, assistant deputy secretary for Health and Human Services.

The comptroller’s report had also raised concerns about how long it could take to investigate instances of potential misconduct.

Paterson’s proposal would authorize the health commissioner to inform the public of health threats, despite the fact that the information would otherwise be considered confidential. In cases of potential communicable disease threats, the commissioner would also be able to order doctors to ‘cease and desist’ performing specific procedures until the OPMC can hold a hearing.

“He wants to make sure the commissioner has all the tools and the powers at his disposal to protect the public health, and, while protecting the due process rights of doctors, making sure that doctors that commit misconduct are either properly retrained and, or taken out of the system — if that’s what needs to happen,” Baker said.

Much of Paterson’s bill is focused on speeding the state’s response to public health threats and getting information to patients more quickly.

“While in many instances, yes, you can get a subpoena, you can get a court order — there are ways to get things done — we need to be able to act very swiftly,” Daines said.

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On the Net: http://www.health.state.ny.us/nysdoh/opmc/main.htm

http://www.nydoctorprofile.com/

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