Investigations of doctors kept secret (NY OPMC)

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Investigations of doctors kept secret BY RIDGELY OCHS |

ridgely.ochs@... When it comes to investigating physicians like Dr.

Harvey Finkelstein, New York State has a system that occurs largely behind

closed doors.

It is among a handful of states that conducts the entire probe in private and

withholds a doctor's name unless the complaint is upheld. And even after an

investigation is concluded, doctors are not required to notify patients if they

are practicing under sanction. What information is available is found on a state

Web site that critics argue few people know about.

The workings of the Office of Professional Medical Conduct, the part of the

state Department of Health charged with investigating and disciplining doctors,

came under scrutiny last week after a three-year investigation of the Dix Hills

doctor revealed Finkelstein had potentially exposed hundreds of patients to

blood-borne diseases by routinely reusing syringes in multi-dose vials. Critics,

including Gov. Eliot Spitzer, have asked a steady chorus of questions about why

it took three years and why most of Finkelstein's patients weren't notified

until two weeks ago. Even then, the state didn't release his name.

The entry on the Office of Professional Medical Conduct Web site about

Finkelstein is this: " Nondisciplinary order of conditions issued pursuant to New

York State Public Health Law Section 230. for three years including conditions

relating to infection control. "

" This matter is not disciplinary in nature, " the entry, effective Sept. 7,

reads.

Finkelstein is being monitored for three years, but the OPMC's opaque

description of its actions against him is emblematic of the state's impenetrable

system for disciplining doctors, critics charge. The state comptroller in August

said the office was often too slow and was not thorough enough in finding

potentially errant doctors.

Arthur Levin, head of the Center for Medical Consumers in Manhattan, said it is

impossible to tell whether the office acted appropriately in the Finkelstein

case because so little of its doings are open to the public.

" On a scale of 1 to 10, 1 being the most transparent, New York is a 10, " Levin

said. " The problem is the public has no way to assess how good a job the OPMC is

doing. ... If we all knew how the decision was made, it would not be an issue. "

And, critics say, its " nondisciplinary " response in the Finkelstein case speaks

of a system that favors the doctor over the patient. Three percent of complaints

filed against doctors in the last two years have resulted in discipline against

them, according to state Health Department figures.

" The visceral reaction of the guy on the street is, 'How can this guy still be

practicing?' " said state Sen. Kemp Hannon (R-Garden City), who has scheduled

hearings into the Finkelstein case. " We need more transparency. The other part

of this is speed. ... We need to take care of patients first. "

Joanne Doroshow, executive director of the Center for Justice and Democracy, a

national consumer group, attributes OPMC's lack of openness to " a culture of

secrecy that pervades the medical profession. "

But Dahill, the head of the Nassau-Suffolk Hospital Council, said there's

a good reason to keep private the details of an investigation until there is a

finding. " The physician has a reputation in the community that needs to be

protected until there is a finding against him, and then there is an obligation

to make it public to protect them [the public], " he said.

Moy, general counsel for the Medical Society of the State of New York,

said that until state Health Commissioner Daines completes an

investigation on the Finkelstein case called for by Spitzer, it is not clear

that the way OPMC functions or that the laws that regulate it failed. " Is the

system at fault or was it human error? " he said.

But Daines tacitly acknowledged problems in a letter dated Nov. 16 to Hannon,

head of the Senate's health committee. Referring to the OPMC, Daines said: " I

welcome further discussion regarding proposals to strengthen or accelerate

actions they take in cases such as this. "

Looking at communication

Health Department spokeswoman Hutton said it would look at whether the

department's epidemiologists should communicate earlier with the OPMC when, as

in the Finkelstein case, they discover information that might reflect on whether

a doctor practices safely. " That's a relationship that's going to be modified, "

she said.

The Office of Professional Medical Conduct, with a current budget of $20.9

million, is part of the state Health Department, which has an overall budget of

$50.1 billion. Its mission is to protect the public from medical negligence,

incompetence or unethical practices by physicians or physician assistants.

Under state law, all complaints made to the office must be investigated. There

is no time limit on how long an investigation may take.

If the complaint is considered warranted, the office issues charges. The

investigators may also recommend to the health commissioner that a doctor's

practice be suspended because he poses an imminent danger to public health.

The doctor then appears before a disciplinary hearing committee of two

physicians and a lay member. At the hearing -- much like a trial -- the

committee can invoke penalties that can range from censure or reprimand to

suspending or revoking the doctor's license.

In a 2006 survey of 42 states by three advocacy groups, New York was one of five

in which no part of the hearing is public.

And unless and until a doctor is found guilty, New Yorkers have no way of

knowing if a doctor is under investigation. Again, the survey found New York was

in the minority: It was one of only five states that does not let the public

know a doctor is being investigated once there is probable cause for a formal

hearing.

Advocates argue this protects doctors' reputations at patients' expense. " As

soon as an investigation is opened, the public should be made aware, " said Ilene

Corina, the president of PULSE, a medical consumer group based on Long Island.

" People can die from misleading information. "

Once a doctor is disciplined, that information is posted on the office's Web

site. Last year, the Washington, D.C.-based advocacy group Public Citizen ranked

OPMC's Web site fourth nationwide for user friendliness and content. But,

critics argue, few people know to go to the Web site. " The problem is the

information gets buried, " Doroshow said.

The 2006 advocates' survey found that 23 states also send out news releases once

a doctor is sanctioned. New York was not among them. Moreover, doctors are not

required to tell patients they are practicing under a sanction or limited

license.

While Public Citizen ranked New York 17th among disciplinary medical boards last

year, a state comptroller's audit released in August criticized OPMC. The

comptroller found it did not always take initiative in finding doctors who could

pose a risk or in gathering information from all sources.

The report identified 177 doctors who met the criteria for a malpractice probe

but were not examined. And it found that OPMC's malpractice database is

incomplete.

Medical consumer advocates argue that much of the office's disciplinary action

actually duplicated actions taken by other states or federal agencies. A 2003

report by the Center for Medical Consumers and NYPIRG found that only 43 percent

of actions against doctors were initiated by the medical office. More than half

were based on disciplinary actions taken by other states or federal agencies

that OPMC then also adopted.

Malpractice verdicts

They also argue that when a doctor's malpractice verdicts or settlements reach a

certain level, or when they are denied regular malpractice insurance, it should

trigger a probe.

Finkelstein is in this group: He had 10 malpractice settlements over a nine-year

period.Of the state's 70,000 doctors, 127 fall into that category, according to

a recent report by Public Citizen.

Hutton said Daines is aware of the issues. " Perhaps we should start looking more

critically at applications for the state malpractice insurance pool. This is

where physicians turn when they find they cannot get market insurance, " she

said. " Perhaps we need to look at the malpractice records more closely. "

The comptroller also criticized the office for not having deadlines on probes.

The report identified 769 cases -- or about 10 percent of all complaints during

the April 1, 2003, to July 31, 2005, audit period -- that took more than a year

to investigate. " We are aware of cases opened prior to our audit period which

have remained open over four years, " the report said.

OPMC's 2005 annual report said the average length of time for a complaint

investigation is " less than four months. " By contrast, California took 2.2

months on average, according to a 2005 report by the Center for Public Interest

Law at the University of San Diego.

And there is the issue of what happens once complaints are investigated. In 2006

and 2007, the office received 16,131 complaints, according to the Health

Department. Of those, 500 , or 3 percent led to some kind of formal action

against a doctor. Since 2004, the office's caseload has increased 30 percent,

the Health Department says although its staffing levels have remained the same.

Advocates argue there are far more bad doctors who are not being disciplined.

The 2003 advocates' report said it is estimated that about 1 percent of doctors

should be disciplined for poor practices each year. That would mean 700 each

year in New York should be sanctioned, not 500 over two years.

" They ought to take complaints more seriously, " PULSE's Corina said. Speaking of

Finkelstein, she added: " He should have been closed down immediately. Why are we

so worried about protecting the provider when we should be protecting the

patients? "

Staff writer Amon contributed to this story.

http://www.newsday.com/news/local/ny-lidocs1126,0,1214176,full.story

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