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MR. CONWAY: Thank you very much for giving the medical society the opportunity to come before you today. We have prepared a rather lengthy statement, which I will not read. It runs for about twenty some odd pages. The attempt in that statement to answer some of the questions if not all of the questions that have been included in the hearing notice. I will speak only briefly. Basically summarize the testimony.

It goes into to a great extent the history of the legislation governing the professional medical discipline process. Because I have been around for quite a while as most of you can tell looking at me, I was present at most of that history. A great deal was done in 1975, 1977, 1980, throughout the 90's extensive work done on the discipline process. 1991, 1994, 1996. I will say at this point that the process that exists today as a result of the attention that the legislature and the state has given the process is far superior to that which existed in 1975. Whatever it's false. It is far more successful in the extent to which it achieves it's purpose, it's fundamental purpose which is to protect the people by ensuring that physicians who are guilty of unprofessional conduct are appropriately remediated or disciplined or removed from the profession.

We have had successes. I believe the representatives of the department cited to you national studies which show that New York State's discipline system when measured against and by objective yardsticks has moved up tremendously as a result frankly and we thank you for this.

Of the improvements that have been made by the legislature initially and implemented by the appropriate state agencies. So those objective evaluations do indeed show that you have made progress. Are we perfect? Obviously not. And never will be. We have the two groups of witnesses who appeared before me. Presented frankly both sides of the reality. We spent a lot of time this morning on situations in which it was and is suggested that in fact the subject of the discipline process, the physicians were indeed not accorded fairness, were treated unfairly. Again that in and of itself is important. The really important thing is the extent to which that unfair treatment had adverse patient consequences. Those patients many of them are here today.

The second group attested to the fact that the system has apparently failed to hold accountable. In a number of instances. Physicians who should have been held accountable. I don't comment on those cases. I don't comment on the cases that were addressed this morning. I don't have direct knowledge of those situations and it would be inappropriate for me.

But clearly the process is not a perfect one. As much as it has been improved by the legislative actions taken over the last 25, 26, 27 years. We must however constantly evaluate the system. Any system. Charged with the important responsibilities which have been given to the Office of Professional Medical Conduct. We must constantly examine it to see if indeed it is approaching to the greatest extent possible the objectives, the purposes for which you have created it and enabled it.

In our testimony we touch on a number of things that we think you ought to look at. That we are working with the Department on now and hopefully will be able to resolve with the department. But, if we can't perhaps legislative intervention is appropriate. There are issues involving exculpatory evidence and the withholding of exculpatory evidence. The protection of the physician, patient privilege where the physician is treating a physician has raised some very complex issues. The establishment of a statute of limitations is something that ought to be looked at. The standard of proof ought to be looked at and has been looked at both judicially and legislatively in other states.

Perhaps most importantly from our prospective at this time and most relevant to the discussion, which took place, this morning is the issue, which we raised last in our testimony. That is the extent to which is reason to examine whether the process is being perverted by insurance companies. Whether physicians who are providing treatment, which in their clinical judgment is the most appropriate treatment for their patients, are being subjected to coercion, which involves utilization of the OPMC process. That physicians who are advocating more rather than less intensive therapy are being singled out.

This is not something that came up recently. This is not something frankly that came up first with the Lyme Disease situation which you addressed this morning. I have letters from insurance companies to physicians demanding the return of payments that have been made based on determinations that upcoding had been involved, that the treatment had been too intensive, unnecessary. Those letters have contained suggestions that that kind of conduct on the part of the physician would constitute profession misconduct. And, that the companies would expect remittal within a very short period of time. Refunds for what these companies have decided was inappropriate care given to sick patients.

This is an inappropriate use of the Office of Professional Medical Conduct. It is there to enhance care. Not to result in the penalization of physicians who provide care which companies determine is excessive based perhaps not upon accepted clinical guidelines but bottom line.

Three years ago, this is not new, a letter was sent to the Governor, the speaker, the majority leader, several members of this panel, the Attorney General, OPMC detailing specific physicians, specific cases. Where the threat of OPMC action was raised by the insurance company. It is an exceedingly serious problem. Assemblyperson Mayersohn made an interesting point this morning at the very end of the testimony. I think it kind of captured where the physician finds himself too often. You suggested Assemblywoman had there been prosecutions or charges brought against or investigations for those who pursued the conventional therapies as opposed to the other therapies. Imagine what position that puts a physician in. If he doesn't go one way, he'll be prosecuted. If he goes the other way he'll be prosecuted.

Frankly, candidly it is our view of the genesis of this inappropriate perverted use of OPMC is not OPMC. It is the situations describing the letter of April 14, 1999, which continue to this day.

So we applaud all of you for looking at the process. All aspects of the process but most particularly what we believe to be a great danger not just to for practicing physicians but ultimately to the people who are here today. Whose access to clinical care is being limited by factors that have nothing to do with the science.

I will answer any questions I can. I thank you again for the opportunity to speak to you today.

ASSEMBLYMAN GOTTFRIED: Thank you. I apologize for having stepped out but while, I hope you'll understand, that while hearing your testimony is always important to me when the phone message is that the speaker is looking for me that tends to focus my attention.

MR. CONWAY: I understand perfectly.

ASSEMBLYMAN GOTTFRIED: You said in your oral testimony that there were issues you were, that the medical society was working on with the department that you were hoping to resolve administratively. Now your written testimony lists several issues. Are those the things that you are working on or are there are other issues?

MR. CONWAY: No those are essentially the ones that I was referencing, yes. They are the ones that are included in the testimony. In fact at least one of them I think we have received a satisfactorily resolution. I think the department in good faith has looked at it. That is the extent to which there were situations where certain exculpatory evidence was not made available. That proved to be the case but when it was brought to the attention of those in a position to alter that in fact we understand that it has been altered, that practice. So that problem hopefully no longer exists. Others we continue to discuss with them.

ASSEMBLYMAN GOTTFRIED: Okay. I would, just as a general proposition I would urge you to perhaps whether it's on a parallel track or a triangular arrangement work with the legislature as well on those issues. For a couple of reasons.

Number one if a year or two from now you find that the department has not come forward on the things that you hoped they would the legislative process will be a year or two delayed as a result.

Secondly, I think you may find that the department is a little more responsive if they know that your issues are being pursued on the legislative side as well. This executive branch more than any that I have dealt with over the years has developed a routine of essentially ordering people in the community with whom they are discussing legislation or other matters not to talk to the legislature or at least not to talk to the assembly.

I think they have a couple of good reasons for doing that. One is that I think they feel with good reason that they are able to control the outcome more when the legislature is not involved. We would welcome the opportunity to be of the kind of assistance that the Governor's people would rather that we not provide.

MR. CONWAY: I think that's very good advice. I thank you for giving it to us. As a matter of fact obviously we have followed it and indeed several of these things I'm sure you will recall we discussed with you. Some of them just the other day. For example one that's very important is the holding of HMO medical directors open to OPMC review. You and I talked about it. I think not more than 48 hours ago. So yes we understand fully the role of the legislature in this and as you know we have never been reticent about coming to you to try and help address our problems.

ASSEMBLYMAN GOTTFRIED: Thank you. Questions?

MR. CONWAY: Thank you very much.