May 14, 2004
Senator Kemp Hannon
The Association of American Physicians & Surgeons ("AAPS") vigorously supports immediate passage of S5221. I serve as its General Counsel, and practice law in New York City. Founded in 1943, AAPS is a nationwide non-profit group of thousands of physicians, including many members in New York State.
I personally testified in favor of reform legislation before the New York State Assembly Committees on Health, Higher Education and Codes, on January 31, 2002. On behalf of AAPS and its many physicians, I urge you to facilitate its passage this month.
The Office of Professional Medical Conduct (OPMC), unfortunately, has a record of grossly disregarding justice and the needs of patients when it takes actions against physicians. In at least one case, the miscarriage of justice perpetrated by the OPMC was so egregious that another state, upon review, took the unusual step of protecting the license of a physician despite its revocation by the OPMC. In that case, which I personally appealed to the New York courts, the OPMC had retained an expert who exonerated the physician. The OPMC then simply discharged the expert and hired a new one willing to testify in favor of revoking the physician=s license. Even worse, the OPMC refused to ever hire the first expert again after he agreed to testify for the unjustly treated physician. Hundreds of patients suffer, and some likely die unnecessarily, when the license of a physician is improperly revoked in this manner.
Four aspects of the draft legislation are particularly meritorious. The legislation requires the OPMC to Adisclose to the licensee each expert who is consulted, but who does not testify and whose work product tends to prove the innocence of the licensee or undermines the credibility of any witness against the [email protected] Subdivision 10(e)(i) of Section 230 of the Public Health Law. This advances discovery of the truth, which should the goal of both sides. Disingenuous expert-shopping does not advance any legitimate fact-finding. This reform is badly needed.
Similarly, the requirement of advance disclosure of the expert reports is essential. Subdivision 10(e)(ii) of Section 230 of the Public Health Law. This is basic in litigation in the court system, and there is no reason it not already required in disciplinary proceedings. The legislation properly remedies this problem.
The bill also addresses the problem of the review board simply ignoring the results of lengthy, expensive hearings before a committee. All too often a physician will incur enormous effort, loss of practice time, legal expense, expert fees, and so on to argue his case before the hearing committee. But even if he prevails, the Administrative Review Board (ARB) can and will simply ignore the result and arbitrarily decide otherwise without any adherence to due process. This makes no sense. The legislation appropriately requires a remand by the ARB if it disagrees with a recommendation of a dismissal of charges by the hearing committee. Section 2(b) of subdivision 4 of Section 230-c of the Public Health Law.
Last, but not least, it is worth highlighting the reform enabling the licensee to have a stenographer at investigative interview. Subdivision 10(a)(iii) of Section 230 of the Public Health Law. All too often the investigative interview is an ambush of a physician, with the outcome predetermined before the interview even starts. The licensee should be able to record the interview to protect against abuses. This is a basic right of any accused person, and it is essential to preserve the integrity of the process.
AAPS urges you to pass S5221. The future of medicine and the livelihood of patients depends on it.
Please contact me if you have any questions. Thank you for your attention to this very important matter.
cc: Jane Orient, M.D.