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New York Patient Safety Bill Would Try Physicians in the Court of Public Opinion

Posted on | May 16, 2008 | No Comments

Proposed bill may unintentionally harm the innocent and discourage physicians from practicing

New York State is moving forward with a proposal that will improve patient safety by alerting the public early when doctors are charged with a misconduct or crime.  Currently, the public is notified when a physician is convicted of misconduct – a process that can take six months or longer from when the charge was served.  The proposed bill has a ‘mom and apple pie’ appeal.  In fact, Blair Horner, a spokesperson for the New York Public Interest Research Group (NYPIRG) stated that, “It signals that the Health Department is going to get tough on dangerous doctors.” 

While few people would argue vociferously against such a bill that truly does help to improve safe care for patients, there is a real concern that will inevitably spread through the N.Y. physician community like a wildfire, with doctors saying “The State is out to get us when we err”.  Of course, medical students and residents will also hear the opinionated rhetoric and decide that this new bill is yet one more reason to eagerly train but not actively practice in New York State.

The “Achilles’ heel” of this gubernatorial bill is an innocuous sounding provision that will; “Require the Board (State Board for Professional Medical Conduct- a Department of Health (DOH) section) to make charges public when they are served upon a physician and make hearing determinations public when issued.  A statement advising that the charges or determinations are subject to challenge by a physician will accompany the charges.”

While the change from ‘convicted’ to ‘charged’ appears to be straightforward, the repercussions could have an impact equivalent to ‘career execution’ for the charged physician.  The distinction between ‘charged’ and ‘convicted’ are paramount distinctions, as it is in legal matters as well.  Notifying the public that a practicing physician is charged with misconduct, let’s say, improper opioid dispensing, automatically makes that doctor ‘guilty’ in the court of pubic opinion.  The announcements are sure to evoke comments like, “Of course the doctor’s guilty.  Why would the State publicize it, if it weren’t true?”  The resulting legal fees, confiscation of documents, loss of patients, public humiliation and peer avoidance would financially and emotionally devastate the physician and his/her family.

The counter argument appears sound.  Patients will learn of likely medical misconduct six months earlier if public notification occurs when the charge is served.  In the case of Dr. Harvey Finkelstein, the New York pain specialist who exposed thousands of patients to HIV/hepatitis C through improper syringe usage, such reporting would obviously be a true public service.  Moreover, the provision does require that the physician may challenge the charge (implying that the implied ‘guilty’ physician may be innocent).  Finally, DOH stated that over 8700 complaints against physicians were reported, some 4100 cases were investigated, and only 311 were charged.  Of the charged, the ‘vast majority’ were convicted.  Thus, once charged, it’s just a matter of formality before the bad doctor is found guilty.

At this point, it becomes a numbers game – the greater benefit of the public versus the personal protections of the physician.  While the example of public infectious disease exposure to improper syringe techniques appear to make this bill’s passage a ‘slam dunk’, the fact that less than 100% of those charged are actually convicted is very distressing.

As an example, let’s assume that the ‘vast majority’ means 95% of those charged are convicted.  It would mean that 15 physicians, who were charged and subsequently exonerated, will have gone through the protracted anguish, horror and ruination of this process.  Even if 99% were convicted, would the ruination of three innocent physicians each year be an incentive for future doctors to want to practice in New York?  Also, if this provision is enacted, I believe great pressure would be placed on DOH to assure that charging the physician correlates with conviction 100% of the time.  DOH will then make it happen, either through unintentional bias or by charging only the most egregious violations.  In the case of the former, a miscarriage of justice will have occurred, and in the latter, bad doctors may not be charged.

It’s very likely that this provision will be modified by the New York Assembly so as to protect both the public and the physicians.  Modifications that make public only charges deemed to constitute a serious public health threat, like spreading infectious disease by improper use of syringes or poor surgical techniques, could possibly spare some physicians ultimately found innocent.  Stratifying the reporting will spare these physicians caught in the process from being publicly tortured and ruined, will spare New York State from levying perceived injustices to physicians (a vanishing group in NY), and will still protect all New Yorkers from the truly egregious misconduct practices.

(Mark Lema, MD, is Professor and Chair of Anesthesiology at the University at Buffalo, Roswell Park Cancer Institute and past president of the American Society of Anesthesiologists. He can be reached at Mark.Lema@RoswellPark.org. Opinions expressed by Health Commentary guest bloggers do not necessarily represent the views of Health Commentary.)

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