250.000 PROFESSIONAL MISCONDUCT

250.987        Statute of Limitations for OPMC Website

The Medical Society of the State of New York will advocate that disciplinary actions imposed more than 10 years ago be removed from the publicly searchable Office of Professional Medical Conduct (OPMC) database, except if the information relates to physician’s license being revoked, suspended, or surrendered after the conclusion of due process. (HOD 2024 – 52)

250.988        Professional Misconduct Reform

The Medical Society of the State of New York amend MSSNY Policy 250.988 as follows:
MSSNY will support regulation and/or legislation that moves investigation of complaints, conduct of hearing, and discipline of Nurse Practitioners and Nurse Midwives from the New York State Education Department Office of the Professions to the Office of Professional Medical Conduct while maintaining the requirement that there be a supermajority of physicians on the Board for Professional Medical Conduct. ((HOD 2023-109; Reaffirmed and amended HOD 2024 – 53)

(See also Medicaid, 175.000)

250.989        Office of Professional Medical Conduct (OPMC) Reform

Based on information that was knowingly false when the complaint was filed, MSSNY will continue to support the right of physicians who have been the subject of a disciplinary procedure to be able to sue the parties responsible for that false information and MSSNY will continue to oppose legislation that would permit the public release of complaints to the OPMC where the complaint allegations have not resulted in a determination of misconduct.  (HOD 2020-69; referred to Council, substitute adopted by Council 1/14/21)

250.990        Review and Appeals in OPMC Discipline Cases

The Medical Society of the State of New York will seek legislation that requires there be review by at least two independent medical experts of the same specialty during the Investigation Committee phase of a disciplinary investigation,. (HOD 2019-56)

250.991            Modernizing OPMC

The Medical Society of the State of New York will continue working with the New York State Department of Health and the Office of Professional Medical Conduct (OPMC) to educate physicians about the procedures and activities of the OPMC. MSSNY will seek to have any complaint that has been determined by OPMC to be invalid or dismissed after a period of two years expunged. (HOD 2018-61)

250.992           Amendment to OPMC Reporting Requirement Associated with Physician Profile Updates 

Under New York State Law, failure of a physician to update his/her profile within six (6) months of license renewal, can be considered as professional misconduct and reportable to the OPMC for immediate action.  The Medical Society of the State of New York will seek regulation/ legislation to allow a 60-day grace period for physicians to comply after receipt of a warning letter, and if a physician still does not comply after the 60 days grace period, then and only then should it be considered a reportable event.  MSSNY, county and specialty societies will immediately begin to notify their members about the importance and urgency of updating their individual profiles in a timely and expeditious manner.

In an effort to ensure that physicians comply with the requirement of updating their profile, MSSNY will request there be notification with a direct link to www.nydoctorprofile.com which must be completed prior to submission of the registration renewal when a physician renews his/her license online and for those physicians who may still renew their registration via paper, a copy of their updated profile must be included and sent together with the registration renewal. (HOD 2014-102; Reaffirmed HOD 2024)

250.993:          Physicians Serving on the OPMC Hearing Committee

MSSNY will seek legislation or regulation requiring that at least one of the two physicians serving on the hearing committee of the OPMC charged with the responsibility of listening to and reviewing written and oral testimony alleging possible physician misconduct, be in active practice and of the same or similar specialty of the physician being charged, thereby assuring that the physician in question is being truly evaluated and judged by his peers and that the facts, as presented, are reviewed based upon appropriate sound medical decisions.  (HOD 2013-119; Reaffirmed HOD 2023)

250.994           OPMC Administrative Review Board:

MSSNY will take steps to educate physicians regarding the Office of Professional Medical Conduct Administrative Review Board’s authority to strengthen the severity of the hearing committee determination or sanction.  (HOD 2009-112; Reaffirmed HOD 2019)

250.995           OPMC and Medicaid:

MSSNY should encourage the Office of Medicaid Services to discontinue its policy of excluding physicians from its panel solely because they are on probation with the Office of Professional Medical Conduct.  (HOD 2007-93; Reaffirmed HOD 2017)

250.996           Changes to OPMC Procedures:

If the complainant is an insurer, an employee or agent of any insurer, or an attorney, MSSNY should advocate for legislation that will require the disclosure of the name of the person or entity that has filed a complaint against a physician with the Office of Professional Medical Conduct.  (HOD 2007-92; Reaffirmed HOD 2017)

250.997           Changes to OPMC Procedures: (SUNSET HOD 2017)

250.998           Due Process for Physicians Accused by Hospitals of Professional Misconduct: 

Any committee of a hospital that is duly constituted by the hospital to review matters involving professional misconduct should provide a physician who is accused of misconduct with notice of the charges, an opportunity to be heard, and any other safeguards that may be provided by the Bylaws.  The committee is required to report to the Board of Professional Medical Conduct only if it has information which reasonably shows that the physician is guilty of professional misconduct as defined by section 6530 of the Education Law.  (Joint MSSNY/HANYS Position Approved by Council 11/14/85; Modified and reaffirmed HOD 2013; Reaffirmed HOD 2023)

NB:         Professional misconduct applicable to physicians is defined by Article 131-A of the Education Law.  The firm which acts as General Counsel to the Medical Society of the State of New York should be consulted for specific information on any aspect of the definitions.

250.999           Guidelines for Reporting Professional Misconduct:

Paragraph (a) of Subdivision (11) of section 230 of the Public Health Law provides:  “MSSNY, the New York State Osteopathic Society or any district osteopathic society, and statewide medical specialty society or organization, and every county medical society, every person licensed pursuant to articles one hundred thirty-one, one hundred thirty-one-B, one hundred thirty-three, one hundred thirty-seven and one hundred thirty-nine of the education law, and the chief executive officer, the chief of the medical staff and the chairperson of each department of every institution which is established pursuant to article twenty-eight of the public health law shall, and any other person may, report to the board any information which such person, medical society, organization or institution has which reasonably appears to show that a licensee is guilty of professional misconduct as defined in sections sixty-five hundred thirty and sixty-five hundred thirty-one of the education law.  Such reports shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding except that the board, its staff, or the members of its committees may begin investigations on the basis of such reports and may use them to develop further information.”

Questions have been raised concerning how county medical societies should process complaints received from the public either by telephone or in writing.  It is questionable whether the mere receipt of a complaint by a county medical society, where the county medical society does not have first-hand or direct information regarding the alleged misconduct, and where the county medical society has not conducted any investigation of its own, constitutes information which reasonably shows that a physician is guilty of professional misconduct.  The resources and ability of county medical societies to investigate complaints varies with each society.

The following are suggested Guidelines for the County Medical Societies In Reporting Complaints of Professional Misconduct: 

Whether to make an investigation.

(1) Whether a particular complaint should be investigated must be a decision made by the county medical society.  It is recognized that the county medical society may not have the resources to investigate all complaints.

(2)a  If the county medical society investigates a complaint and finds that the evidence reasonably shows that the physician is guilty of professional misconduct as defined by section 6530 of the Education Law, the county medical society has an obligation to report to the Office for Professional Misconduct (OPMC).  If the county medical society investigates and finds that the information does not reasonably show that the physician is guilty of misconduct, the county medical society need not report to the OPMC.  The complainant should be advised that if he is dissatisfied with the findings, he, as an individual, may file a complaint with the OPMC against the physician.

(2)b  The word “reasonable” cannot be defined for the purposes of these guidelines, and, whether information “reasonably” shows that a physician is guilty of professional misconduct depends upon the facts and circumstances of the case.  The county medical society should be prepared to show that its findings were objectively made.  According to the law, any person, organization or medical society who reports or provides information to the OPMC in good faith and without malice shall not be subject to an action for civil damages or other relief as the result of such report.

(2)c  It should be understood that in any case where the county medical society investigates a complaint, the OPMC may at a later time subpoena the records of the county medical society.

(3)  If the county medical society does not investigate a complaint, the following procedures are suggested:

(a)  If a complaint is made “verbally,” the complainant should be advised that the individual can file a complaint with the OPMC on his own.  The county medical society should provide information regarding whether the complaint should be forwarded.  If the complainant prefers, the county medical society may forward the complaint to the OPMC on behalf of the complainant, if he will submit the complaint in writing. “Do not forward a complaint unless it is in writing.”

(b)  If the initial complaint is received by the county medical society in writing, the complainant should be contacted and informed that he can either file a complaint with the OPMC on his own, or, if the complainant prefers, the county medical society will forward the complainant’s letter to the OPMC.

(c)   If the county medical society forwards a written complaint of the complainant to the OPMC without having made its own investigation, both the complainant and the OPMC should be informed in writing that the county medical society has made no investigation, and in forwarding such complaint, the county medical society takes no position regarding the alleged misconduct of the physician.

(d)  In lieu of paragraphs (a)-(c), if the county medical society prefers not to forward a complaint which it has not investigated, the county medical society should provide information to the complainant regarding how he, as an individual, may file a complaint with the OPMC.

(e)  Records should be kept regarding the complaint received and information disseminated by the county medical society.  (Council 6/16/83; Reaffirmed HOD 2013; Reaffirmed HOD 2023)