Transcript Directory


ASSEMBLYMAN GOTTFRIED: I think actually we can find him on the Health Department's website. Thank you very much. Next is a panel of witnesses. Blair Horner, Art Levine, Monica Miller and Pat Smith.

MR. HORNER: Any particular order?

ASSEMBLYMAN GOTTFRIED: Whatever you like. Alphabetical order. Size place.

MR. HORNER: Then I guess I'll go first. My name is Blair Horner. I am in its legislative with NYPIRG New York Public Interest Group and as you will see we have submitted joint testimony with the Center for Medical Consumers. To my left is Arthur Levin the director. The way we'll do it is again we are not going to read our testimony. We'll go over some of the highlights. We'll probably split it up where I will talk about some of the information in the beginning of the testimony. Art will introduce himself and his own organization and then kind of finish up with the second half if that's all right with you.


MR. HORNER: We certainly would like to tell you that we appreciate this opportunity to testify. As you know NYPIRG is a non-partisan research and advocacy organization that works on a variety of issues including consumer protection issues. We certainly believe that protecting New York patients must be a top priority of policy makers.

As you know the Institute of Medicine two years ago estimated that as many as 98,000 hospital patients are killed annually as the result of negligent medial care. In New York Sate that translates into nearly 7,000 hospital patients each year. New York policymakers must continue to work to strengthen patient protections in the state since far too many consumers lives are at risk.

For over ten years NYPIRG has worked on advocating measures with the Center for Medical Consumers as well as the committees to expand public access information, toughen disciplinary actions against negligent providers and boost state oversight of the industry. Both committees health and higher ed have both been very responsive to being open to our suggestions and we hope that our comments today will be in keeping with that.

Overall, there is no denying it, OPMC has taken more actions over the last ten years than it certainly did ten years ago. It has improved its oversight of physicians. It certainly hasn't been done enough, hasn't done enough. The number of physicians punished by OPMC is a drop in the bucket. New York should be taking far more serious actions against physicians and physician assistants. The system is far too secret and patients who have been harmed or the family members of those who have been harmed have found the system at best difficult to navigate and at worst impossible to deal with.

On the second page of our testimony we outline some issues in more detail. I will just hit on them quickly. The first comment is again we believe that too few physicians are punished. Earlier in the health department testimony and the medical society's testimony they cited the Independent Analysis of Public Citizen to buttress their claim that the health department is doing better. I just mention that the head of the Public Citizen's Health Research Group Dr. Sydney Wolfe has estimated that at least 1% of physicians each year should be punished on average across the country. If you use that analysis and look at New York's actions, New York has probably only taken half as many actions as they should be against physicians based on that public citizen estimate.

Moreover, in the second point we make, we think that the OPMC relies too heavily on activities of other states. Assemblyman Sullivan mentioned before when he was asking the OPMC about following the referrals of cases from out of state into state. When you look at the data over the last ten years, according again to Public Citizen Health Research Group and certainly consistent with what we have seen, 42% of the disciplinary actions taken by OPMC are based on actions taken by other states. The national average is just under 30%. So clearly what has helped fuel the increase in actions taken y the Health Department is based on other actions taken by other jurisdictions.

We certainly believe also that too many dangerous physicians are allowed to continue practicing. We have two charts on page three that you could look at. Roughly a quarter of the actions taken by the Health Department deal with substandard care. The second chart looks at disciplinary actions taken for substandard care. About 41% of the physicians that are punished for substandard care, incompetence or negligence continue to practice. When you look at the way that the public would find out that information other than the fact that they may know of a website, they are not told often that the physician they are going to see is on probation or has their license restricted in some way.

We also believe that two few physicians and other providers blow the whistle when they observe medical misconduct. We have reviewed all of the actions from 1995 through 2001 on OPMC's website. We could not find any. That doesn't mean that they do not exist. We couldn't find any instances where physicians were punished for failing to blow the whistle on an observed misconduct. We find it hard to believe frankly that all of the injuries occur in hospitals that you find in the Institute of Medicine study, the Harvard study and that no other physician observed it and didn't report it.

When you look at the data fewer than 5% of the complaints filed by physicians, the medical society, hospitals and health care facilities combined, fewer than 5% was mentioned earlier, of the complaints originate and people that actually probably might have seen it. We believe that that issue needs to be addressed.

In summary I will turn it over to Art. As I mentioned we believe too many patients are injured or killed by negligent physicians. Too few are punished. The public is far too ignorant about the danger due to excessive secrecy surrounding OPMC. We think frankly the OPMC is not independent enough of the power of the medical society.

As you know under New York law two-thirds of the membership of the board must be physicians. They are from lists generated by the medical society's themselves. We believe that there should be more lay members and that some cases on some of the panels lay members should constitute a majority of the membership. Again I hope that summarizes it and then if you want we could just go into the second half of our testimony delivered by Art.

MR. LEVINE: I would also like to thank you for the opportunity to testify and just assort of as a prelude when I refer to physicians I refer to all those who are licensed and these are DO's regardless of the type of practice that they have. If they are allopathic or alternative or complimentary. They are all physicians to me. They are all licensed to practice in the state of New York, if I make no distinction between the type of practice in my comments.

I think the tone of the questions sort of makes me believe that there is a concern among some at least that OPMC is generally too aggressive in its oversight of physicians and physicians assistants. I think as Blair's numbers suggest and as the experiences you have heard from some of the people testifying today, we think that is far from the truth. No question that OPMC has improved its efforts over the last ten years but it continues to fall far short of its mission to protect the public from incompetent and negligent professionals. I had the privilege of being a member of the committee on the Quality of Health care in America of the ION that it authored the report to To Err is Human and Crossing the Quality Casim. As Blair described that report paints a rather dismal picture about issues of medical errors and patient safety and the quality of care in the United States.

In the first question (inaudible) is to testify. There is a suggestion about whether it would be in the interest of the public to make the process more like a civil or criminal process and asks if there are due processes protections lacking. Its long been my opinion that the OPMC process may be burdened by a bias towards protecting the due process rights of physicians even at the expense of protecting the public from harm. It seems to me that there is underlying principle that physicians are a valuable community resource that if at all possible should be preserved. I would just like to add to that that I think the citizens are a valuable community resources. And, that their health and well being should be preserved.

Given the fact if physicians have legal counsel are protected by extraordinary confidentiality in this process and often allowed to continue or return to practice. You can look at our charts to see that revocation is not the only action that is taken by the board. We can't imagine what further due process process would look like and what it would do to the ability of OPMC to protect the public. That's not to say that there shouldn't be a constant examination and reevaluation of how well current due process is working. Where there are violations of the letter or the spirit of due process in either direction, they should be corrected.

My only statement is I would not like to see more loops added to the process. I think when you do that you simply delay or extend the time it takes from the beginning to the end of the process and I don't think that's in the interest either of the physician community or the public. In thinking about what to do I just urge caution on the notion that we should insert into the process more due process process because I don't think that would serve the public interest well.

It's often said to me when I complain about OPMC and the confidentiality by physicians that after all this is America, you are innocent until proven guilty. Well when we make the analogy to the civil and criminal system we don't extend nearly that degree of confidentiality. If I am walking down the street through Washington Square Park and a policeman decides to arrest me because he thinks I am buying drugs, my name is in the paper. I haven't even been arraigned. It's a matter of public record. My trial is open. Every part of the process, my identity is revealed to the public.

In this process we keep it confidential until there is a final action and only if that final action is positive. We don't even tell people that there has been a process and that process has reached the conclusion that there is no reason or basis for bringing a charge. So what I would argue is that if we are going to think about the criminal and civil justice proceeding process as instructed, we should think about the extraordinary confidentiality that we extend to physicians and whether that's really in the public interest.

Another thing that I think we have been concerned about over the years is that composition of the membership of the board. We believe that it's heavily squed to benefit physicians and their organizations who nominate them. All hearings and appeal panels must have physician majorities. Whether it's law or simply precedent there is never a chairperson or a vice chair person of the board that is a layperson. That's not true in other states. We would like to see at least half of the board members be public members. We would like to see the board publish annually a list of all the members, physician and public with a list of their affiliations and who nominated them so that we know if the pubic members are truly public members and representative of the general public at large and are diverse.

We believe and have long argued that formal charges should be a matter of public record. As most of you know there was a period when the department began to make those changes public and that there was a court case that ruled that the precedent in all of the discipline of the professions in New York whether under DOH or education was that nothing was revealed to the public except for a final action. The court said the following. "We recognize that there are substantial reasons for a contrary view favoring open disciplinary proceedings. In our view, however, the legislature is in the best position to weigh conflicting policy values represented by these two approaches."

Our organization calls on the legislature to recognize its responsibility and to enact legislation that would make the hearing process public and permit the publication of formal charge information. The legislature should create a requirement that once a physician has been punished, particularly when he or she is on probation or has limitations on practice placed on his or her license, patients should be informed. Let me give you an example.

Very often in the case of physical or sexual abuse of a patient, if there is a remedy short of revocation or surrender, the physician is told that they can only see patients with a chaperone in the room. There is no way that any patient going into that office knows about that requirement. It's really up to the physician to comply. If they don't the public has no way of knowing of that restriction on the license. We think it would be important for patient protection to require that physicians reveal any conditions or changes in the conditions of practice imposed by OPMC.

Let me quickly move because we have tow other people and I don't want to infringe on their time. To the recommendations that we have. We have made these before and we're making them again. We would hope that we would get some movement on thee at this time.

One is that we think there should be a consumer assistance office or unit within OPMC. We think there needs to be a much more user friendly interface between people who think they may have been harmed by negligent or incompetent physicians to the victims of misconduct and the office. We think very often people think they have something which is in the purvey of OPMC and it may not be. They should be informed where it might be a more appropriate place to make a complaint if there is one.

There should be something that helps consumers through the process of filing a complaint and keeps them informed on the progress of that complaint. You have heard this morning from testimony from some people and I think if you wanted to you could hear the testimony from lots of other people. There is sort of a black hole into which complaints fall and its very difficult for people to get any information along the way as to what the status of the complaint is.

I think again I would like to emphasize that we believe the public should get more involved. There must be more public members. The board's leadership should include public members. Hearings and appeal panels should in some cases consist of a majority of public members. Again the lists of who the members are should be made public. Their affiliations should be public. The organizations that nominated them should be made public. I think it's important to understand that most people who have been harmed don't know where to complain and don't make complaints and we think it should be a requirement that any practice setting have a notice that informs people of their rights under New York State law to make complaints and gives them the toll free phone number of OPMC and gives them the website address of OPMC.

Most important the OPMC must become more proactive in assuring patient safety. The greatest tragedy in the OPMC process, the greatest unfairness in the process is that it kicks in only after somebody has been hurt. That is wrong. We need to protect the harm from occurring. The way that we can do that is to get the oversight and discipline process more involved in assuring patient competency. That's not my idea.

The Institute of Medicine's committee in To Err is Human said this. "Health professional licensing body should one, implement periodic reexaminations and relicensing of doctors, nurses and other key providers based on both competence and knowledge of patient safety practices.

Two, work with certifying and credentialing organizations to develop more effective methods to identify unsafe providers and take action." I would humbly suggest that that would be a very good use for the $3 million that the Governor is taking from OPMC would be to initiate a proactive program to protect patients and not simply rely on a process that's after the fact when people have been harmed.

I think again I would reemphasize what Blair said. We need whistle blower protection that allows people to come forward and report misconduct when it's observed and when they don't follow the law and report it they should be punished as well.

Lastly we support the suggestions you heard earlier. That patients should be able to appear at the final hearing and make some kind of statement as to the harm they have suffered and at least be present to hear the final decision of the hearing board and be a witness to that process in every sense of the word.

Thank you.

ASSEMBLYMAN MILLER: I am going to respond to some of these comments so it doesn't get lost in the continuing testimony. Now I am not above getting emotional in my own presentations. I have been known to do that. I have been known to be overly critical. But, you know we throw words out there and we hope that what we think we said is the same thing that the audience hears.

There is a big difference between saying the OPMC looks for revocation in every case and that the OPMC in fact levees revocation in every case. I always get suspect when we come very near to repeating the truth but not quite hitting it right on the nail which makes everything else somewhat suspect.

No one here said that there is too much protection for anyone. What in fact we were saying over and over again is that the secret of nature of what's going on doesn't have to do with protecting. Never did the name of a physician as part of the secret was never discussed here.

The problem is that we have certain freedoms in this country. When you are accused of something we always thought it was fair to know what it was you were accused of and who did the accusing. I think that's a big jump from claiming that we are standing here today coming up with new ways to protect guilty physicians. I think if we sometimes calm down and really listen to what the words said, what the words meant rather than trying to turn them based on our own excitement over the issue to do that.

Clearly, we didn't address the issue and frankly I'm not so sure that I want every single person accused of anything suddenly having their name put in the newspaper. The fact that it happens in a criminal setting doesn't mean that we should do it somewhere else. Maybe we should rethink whether anyone accused of any crime should have their name released until there is some proof that they did.

I am certainly not in favor or and will fight actively against every time somebody accuses a physician of misconduct that that suddenly becomes the headline in the New York Times. That's equally inappropriate.

We have an open role that the Office of Medical Professional Conduct plays and in fact we repeated to them today that we don't want to undermine their ability to in fact weed out those physicians whose state of practice in fact puts the community at risk. On the other hand the physicians are not our enemy. This is not the time to do everything we can to go after the physicians.

If you listen to too much testimony here you would think that we have the worst medical system in the world when in fact I think people tend to on a regular basis seek medical care in the United States because in fact it exceeds the available medical care in any other part of the world. I mean what we do in this country and what happens in other countries is a big difference. When we talk as an example about universal education we mean everyone gets educated. If you look at our average student that's from the very lowest to the very top. Other countries don't have that. So if you look at their average student it's from the middle up to the top. Sometimes they look a little better.

Medical care needs some improvement. Bad physicians should not be practicing. I will tell you one of the worst things you could do is suddenly claim that a non-physician can understand in depth what is going on when you get into these fine gray areas. I am a practicing dentist. I will tell you absolutely and categorically that my patients and the patients of other dentists are clueless, zero, they are totally clueless about the quality of care they receive. If it doesn't hurt, it's wonderful. If it's cheap, it's even better than that. Because people come into my office with dental care where I have gone to the disciplinary people to go after dentists and say this person shouldn't be allowed to practice. The patient on the other hand had no clue. What do you mean they were supposed to do this.

We just had a case in my office where a dentist broke the crown off a tooth and then put a fixed bridge over the still existing root with the gum still open. Never prepared the teeth. Ground away the tops of the crown so the person could close their mouth. The whole thing rotted out in four months. The patient came to me because that dentist left the area. Not because they were dissatisfied with what happened.

I would be very skeptical about putting the layperson in charge of Medical Professional Conduct when the chance of them knowing to find nuances of neurosurgery, cardiac surgery, medication and everything else. We would be taking a major step backwards. The idea of having the credentials and the affiliations and the appointment for the physicians on the board, that's a great idea. Clearly we want to know who is there. We want to know if they have an agenda. You have to be very careful. This is something we're not going to throw the baby out with the bath water just because there is some problems. Anger against the mistakes is justified but it should not, it should not distort the entire way we look at the medical profession in this country. Basically that's all I am going to say.

We sometimes have to calm down just a little bit. These are not the bad guys.

MR. LEVINE: Let me respond. First of all you didn't hear what I said. I talked about releasing formal charge information. I am not talking about publishing the names of the physicians when a complaint is simply made or the process has begun. Many states do this by the way. I am not suggesting anything here that is not done in some places. No one has been able to demonstrate to me that there has been any harmful effect from that process. I am not talking about --

ASSEMBLYMAN MILLER: Still innocent until proven guilty. In this country we truly believe where there is smoke there is fire.

ASSEMBLYMAN GOTTFRIED: I am going to interrupt. I don't want to have an endless back and forth here. Art you can respond but then we are going to move on.

MR. LEVINE: Number one I think again what I am talking about is making formal charge information public. Not making everything public from the moment that the phone is picked up in OPMC and a complaint is made. I think I made it clear that I believe in democracy but I sort have a different view of this process as it compares to the civil and criminal proceedings.

In terms of experts versus the laity, by the way in our system of justice we rely on the laity to pass judgment on extremely complicated matters. In a tort proceeding we are talking about complicated mattes of medicine. In a civil tort proceeding we rely on a jury of lay people to reach that decision. That's the American way. All kinds of complexities are dealt with by the laity when they are called upon to do it. It's demeaning to the ability of the public to suggest they can't handle complex decision making. We have lots of examples in our everyday life and particularly in our justice system where they are called upon to do it and do I think, an extraordinarily good job at a difficult task of sitting in judgment of another human being and measuring that case that is presented to them up against the law.

Thank you.

MR. HORNER: One quick thing. Also on the public member issue as you saw in the charts only about a quarter of the cases are really talking about quality of care issues. Many of the cases are sexual abuse, fraud, substance abuse. Those are, we believe cases the lay public member could analyze on a panel where they had a majority. There might be a way in fact to try to set up a system where the public members had a majority in cases that don't hang so much on a technical issue.


MS. MILLER: Thank you. I represent the Foundation for the Advancement of Innovative Medicine, which is a unique organization for it combines a professional membership with a consumer membership. With over 3,000 members the majority of whom are consumers we stand at the nexus of the physician patient relationship and our concern with both ends of the spectrum.

In my case my involvement with Professional Medical Conduct began in 1988 when my family physician was investigated by OPMC for matters involving homeopathy. His care of my family through two pregnancies and subsequently after that was so exemplary I could not help but take up his cause. Consequently I am still at work at this process and here before you today.

There are two aspects of the New York experience, which make it unique among all the states. They have a special bearing on the questions that are before us today.

The first is peer review. Since 1890 and the first licensure of any profession being medicine by the regents, peer review has been an ongoing aspect of licensure and of discipline.

The second principle is pluralism also beginning in 1890 and extending through the laws of 1907. In 1926 where the First Committee of Grievances was created from which OPMC descends. The Committee of Grievances at that time included specific assignments of allopathic and homeopathic as well as osteopathic physicians.

To go to the specific questions. Should the administrative investigations be more like the due process of civil and criminal courts? Our answer is yes, absolutely. The common reason for less due process in administrative proceedings is that the practice of a profession is not itself a right of any citizen but its rather a valuable property earned in conformity with legislative standards. However, that only goes along if you are looking at the licenses and market share. Today with telecommunications and technology being what it is an consumer interest being what it is, one can see that the loss of a license may deprive citizens of services that they value, indeed may not live without. The proceedings that govern the license had better face the muster of full due process for not only for the benefit of the physician but for the citizens who will do without that physician's services.

Specific due process we would recommend would be provision of a Bill of Particulars to licensees at each stage of investigation. Discovery of investigative materials that may be weighed against the licensee. A Miranda type warning before investigative interviews of licensees. Right now they are going into the room with no idea of what they are facing. Admission of exculpatory evidence into the record. Admission of all probative evidence into the record which should be able to include medical literature and rules of the court to govern judicial behavior.

Does the staff of OPMC have discretion over processes that should be more better, bad language, better suited to the Board of Professional Medical Conduct? Yes they do. There are benchmarks in the investigative process where a case will take one or another. Especially in the case of the comprehensive review for example. That is basically at the discretion of staff. The law does require that the staff consult with the BPMC. We feel that at a crucial juncture such as that it should be strictly the investigative interview by consensus of the entire investigative committee that destines the case to go to a comprehensive review or to another aspect or type of investigation.

Is the committee burden evenly and fairly distributed? There is over 150 members of the BPMC. With such a large body to draw on there should be no reason why as recently happened in a case I am familiar with. A member of the administrative review board was assigned to the investigative committee. This is a person who is seeing in judgment of the initial investigative materials and has the discretion to vote to bring charges against a doctor who then they would later sit upon an appeal panel reviewing the outcome of the case. It's an obvious conflict of interest. Yet it has happened. There is no reason why it should have.

Are committee assignments skewed based on a member's track record? Yes. There is a flagrant example where an oncologist was assigned to three particular cases of very popular alternative physicians all involved in cancer care. There were findings of misconduct against all three physicians. Two of the cases primarily involved record keeping at the end of the day. Later the oncologist was brought up on misconduct charges himself as a result of multiple malpractice suits. He too was found guilty of poor record keeping. The penalty for him was no penalty. Obviously as track record put him in a particular position and he reeked to benefit for it.

Are there inconsistencies in ALJ rulings that result in unfairness, arbitrariness, capriciousness? Yes. For example in two recent cases where diagnosis and treatment of a disease were questioned. Very, very similar cases. One ALJ admitted a considerable amount of medical literature. The other ALJ refused to allow any medical literature whatsoever including advisories from the Health Department regarding this particular disease at the particular time in question. Faced with the obvious inability to defend the case, if you can't submit the medical literature other resort has to be taken to. You can't continue with the case. It was completely unfair.

Another example is that Public Health Law says that the failure to submit an answer to the charges will be deemed a default. However, the regulations say that an answer must only be submitted after you are going to put in affirmative defense. Further the regulations say that the ALJ has the discretion to overturn any default or vacate a default if there is good cause. Recently an administrative law judge first of all decided that they would enforce a default for no answer. And then refused to acknowledge their discretion to overturn a default in the case given all the evidence that wad brought to them at the first day of trial when the physician was present and ready to defend its trial. Because they said I have no discretion. Yet the regulations are very clear about discretions. There is inconsistencies that are just plain wrecking havoc in the system.

Should the original complaint be made available? Patient complaints and complaints from health care licensees of lesser standings should be protected from disclosure given the potential for backlash. However, complaints originating from peers of equal standing or from stack holders such with financial interest especially lie insurance companies should be made available to the licensee. There are examples from other states where such disclosure is made with not any evidence of a bad result.

Are there changes in the method or process that need to be made to make better use of investigative committees? The role of the investigative committee was discussed of the floor debate at the passage of the 1991 reforms. It is clear from that record that the investigative committee was intended to be the physician's first crack at peer review. Something like a grand jury appearance.

However, 230 only states as the letter of law the licensee any submit written comments or expert opinion at any time. What happens in practice is that the attorneys are so loathed to give any more information to the OPMC than they already have not knowing what they have because that is not disclosed. There is no Bill of Particulars. That they withhold. They look at the investigative interview as an adversarial exchange. There is no record on the record. There is no disclosure before either the investigative interview or aspects of the meetings of the investigative committees that the physician has any protection, any opportunity for real peer review. For real mediation.

There is even a couple of cases that I have been told about where minority physicians were brought in for interview and the investigator used the word interrogation and said you are not cooperating with the interrogation. Imagine being a member of a minority in our society, sitting in a room being told that you are not cooperating with an interrogation. This is not mediation. This is intimidation.

Should the goal of investigation be solely the bringing of charges? Should correction of practice deficiencies be a goal separate and apart? Absolutely. These questions were visited by the legislature in 1996 and the answer to both was yes. A bill was passed by both houses in 1996 that would have provided for evaluation and retraining for practice deficiencies as a substitute for punitive sanctions. However, it was vetoed for "being laudable but premature."

Consequently, there is an evaluation and retraining program in Syracuse that is not used by this state at all. It is used by other states. It is used by hospitals. It is not used by OPMC. In tracking all of the orders from OPMC since the veto of that bill I could find only eleven orders for retraining. In all of the judgments brought against doctors. There were forty orders for CME credit. CME credit attendance does not equal retraining.

We feel that medical with standards changing at the most rapid pace in history, pushed by technology and communication, there is so much to keep up with. Further don't forget that there are many practice deficiencies that fall into place because a doctor perhaps has hearing loss. In an OPMC trial where the whole proceeding is confined to certain matters at a certain period of time, that may not at all be a discovery that the physicians real problem is that he has a hearing loss. Yet evaluation and retraining with the program tht is set up in Syracuse is designed to bring to surface that sort of a problem that as you know as a practitioner yourself that leads to communication problems with patients, with staff, with ordering meds, etc.

Is the process too secretive from the public? Arthur I don't know what you are talking about. Every time I go on the website I am bringing up a determination, the orders are attached. Every time I have called the OPMC and gone in to see orders against doctors, the charges have been attached. Obviously they are available to the public.

This is a process where the burden placed on the licensee is very heavy and it could require so much added labor and time away from practice that explanations do become necessary to staff and to patients. Where the dispute involves issues of clinical practice, patient care may be affected even before the matter is closed. Meanwhile the department is shielded. They cannot disclose that they are taking any interest in any physician and the secrecy not only serves to damage the process in many that have been brought before you today but it also serves as a cloak for bias. A chilling effect like dry ice creeps into the medical community and the department is not held accountable until the physician wins and Article 78 appeal. To get there they may have to spend $200,000. Most doctors are bankrupted long before that even comes along. That's the advantage of secrecy for the department.

The advantage of secrecy for the defendant is that, and this is very important to remember, traditionally since the Medieval guild courts one the reasons of having a license, the very premise of having a license was having a private court of peers to judge your worthiness. Even now few states publish the proceedings against a physician other than the final orders and charges. Nonetheless, given the technology and the fascinations of this age which promote exposure willing or not licensees should have the option to be heard in public if they wish to take that risk.

Should scientific and medical disputes be the subject of adjudication? No.

On what basis should the clinical judgment of the licensee be considered? The New York Court of Appeals has rules on such liability twice. In both cases it affirmed that a prosecution was not allowed where the clinical judgment was an honest choice between competing medical ideas.

The first was in 1960. The citation is in my testimony. The quote is in the testimony. The citation in the footnotes.

The second was in 1966. This is a beautiful one. There are honest and positive differences of opinion as to the method of examination and the type of prescription in the care and treatment of patients. Which is precisely the issues before this court. If the advancement of medicine is to continue, the avenues of differences must be left open and, circumstances such as here not be the basis of charges. So the highest court of our state has said no we don't go there.

Are there heightened elements of peer review or scientific literature that should apply? When in deference to the highest court, yes. It is inevitable that there will come a time when you have to draw the line between is this a medical dispute or is this just bad practice. At that point you can't go to an honest answer to that question unless you admit the medical literature that the licensee relied upon.

Now much discussion was held earlier with the Department of Health. With all deference to the expertise that was sitting at the table at this time, they did not appear to know the rules of evidence governing New York State proceedings.

Medical literature evidence can only be admitted upon cross examination. If the expert sitting at the chair is willing to attest it to the authoritativeness of the literature. There is no opportunity to submit medical literature in direct examination or as an affirmative defense. Therefore, in a misconduct proceeding, the guy sitting or gal sitting at the table is the one primarily, and in most cases, that wrote the investigative interview. The one who leveled the charges in fact that are brought against the doctor. There the one, the only one that can attest to the literature and whether it can be used to impeach their won testimony. You can imagine how easily it is for an expert to go " well I don't approve of this literature or this publication is biased."

In a case that I was involved with the expert went "this publication is biased. I refuse to recognize it." Therefore, the doctor was prohibited from putting in any literature at that point to defend his practice because the guy who investigated him and basically had drawn up the charges against him would not allow his literature in. This has obviously got to be changed.

The most meaningful would be to consider medical literature evidence early as possible in the investigative stage and so eliminate prosecution of medical disputes all together. You don't end up there. At trial medical literature evidence should be admissible upon direct examination of a licensee and as an affirmative defense.

Are there classes of physicians that are uniquely targeted? Yes. The classes include but are not limited to, and Mr. Horner should certainly know this from his review of the same cases that I review. He may not know about the Lyme Disease doctors or the doctors affiliated with complimentary and alternative medicine. But, it is easy to recognize the doctors with foreign sounding names. Blacks and Hispanics especially. Doctors of Middle Eastern names and origins. Along with that when you really start looking at the charges and the orders, doctors with foreign educational credentials.

Are there heightened elements of peer review that can protect the licensees or distinct classes from bias based prosecutions? In keeping with the interest of my organization, all investigations involving issues of clinical judgment the expert who has the education and practice experience to evaluate these special clinical issues must be consulted. That is what peer review means in this day and age.

However, 230 is very vague. It says experts shall be consulted without any definition or qualification of what defines an expert. Consequently there are reports and I shared them with you and the chairman in the past where the expert says "I don't know what it is. I don't have time to go to the library. It doesn't fit what I know so it must be misconduct." This is not peer review.

Is the authority of the administrative review board too broad? According to the floor debate for Chapter 606 of 1991, the ARB was envisioned only as a sentence appeal that could be sought by either party. However, what happens in practice is that most defense attorneys favor the ARB for appealing medical questions and favor the Article 78 for appealing due process.

Now earlier when the gentlemen and the gentlewoman from the Health Department were sitting here before you they cited the very high number of Article 78 upholding the panels findings against a doctor. The case law is very clear. In all jurisdictions going back to the early 1900's the case law is clear. Where there has been an expert element in the determination of a finding against a licensee the court will not overturn it. It's that simple.

The court refuses to even entertain many questions that are brought before them because the panel that made the determination consisted of two doctors and a layperson. Or the ARB, which is a panel of five. I think three doctors and two, correct.

So the reason why the Article 78's are upholding the department is because the case laws directed them to do so. Not because there is any special favor or wisdom that they saw or merit in the defense at that point that is the position that the department was in.

It is our contention that where the original peer review panel, privy to the whole trial experience has determined to dismiss or mitigate charges, that determination must stand. To allow otherwise is double jeopardy. You may think what are you talking about. The fact is that recently over the last three years the ARB has been overturning findings that favor the physician. The are not looking at any new evidence. Their review and the Article 78 review is held to the record. So they are not looking at the whole trial experience. They are only looking at what made it into the record. Yet they are overturning findings of innocence. It doesn't make sense. It is double jeopardy. Their original determination based on their whole trial experience should stand.

Should changes in standards of practice during the course of investigation, hearing or appeal constitute new evidence? Absolutely. While one can only be held to the standards at the time of treatment in most cases, there have been instances where the defense of the physician was based upon his review of all the literature and his determination that certain methods were not indicated despite being common practice.

A ready example draws on the changing standards for staging cancer and I give you a case citation in your footnotes, and new evidence of benefit versus risks for yearly mammograms. In the case in your footnotes the physician was accused of not using tumor markers with a cancer patient and he said, "look I have read all the literature. It's not convincing me that tumor markers give me a clear indication of the staging of cancer." Now merely four years later the American Society of Clinical Oncology reviewing the same body of literature that he cited in his testimony agrees with him. Tumor markers are not valuable in staging cancer. So he should be able to go back. He should get another swing at the bat.

This notion exists in malpractice case law where in the Court of Appeals acknowledge the protection that comes with conforming to a community standard and yet they added another layer of liability. They said, "there is however a second principle involved in medical malpractice cases. Having it's genesis in the reasonable man rule, this principle demands that a physician should use his best judgment and whatever superior knowledge he has." So that the community standard is just the floor but the practitioner by communications from colleagues, medical literature, CME credits, lectures that they have attended, any new knowledge or their information, any data they may have compiled in a statistical way from their own outcomes, any new information that adds to their knowledge adds to their liability. It should hold in the reverse.

If a doctor such as Dr. Gantt who sat before you has knowledge from his own statistical evaluations that Ritalin is not helping his patients any greater than his methods and the risk of Ritalin is greater, he should be able to defend that proposition base don his superior knowledge.

In closing, FAIM urges this legislature to take up reform of the procedures for professional medical conduct. To instill greater due process and fair rules of evidence that are responsive to the real world that we live in. It is our view that patients and I include myself only have rights insofar as our licensed professionals have the liberty to guide us in the treatment options we chose.

Thank you.


ASSEMBLYMAN MILLER: Just before, just let me thank the presenter and it's not just because our names are the same. You have certainly raised the level of Millerisms and I thank you.

MS. SMITH: I don't know that I particularly like following that but anyway. Thank you. I would like to thank you very much for having me back for testimony today and I would like to note that after a brief introduction I will be primarily discussing questions 7, 8 and 9.

I am Pat Smith. I am President of the Lyme Disease Association. That is the capacity I am here in today. I also serve on the board of directors of ILADS, the International Lyme and Associated Diseases Society, which is a professional medical society. I am also a former chair of the New Jersey Governor's Lyme Disease Advisory Council and former President of the wall Township Board of Education.

The Lyme Disease Association is volunteer organization dedicated to prevention, education and raising funds for Lyme Disease and other tick borne diseases. In that light, I would like to invite you both Mr. Gottfried and Mr. Miller and also Ms. Mayersohn and I hope you will convey this but you will get invitations to March 21st at Columbia University. We will be announcing the opening of an endowed research center for Lyme Disease. At that time we will be presenting them with a small opening check and then we are opening the endowment fund and there will be some research beginning right out of that. We hope that you will be able to attend. Columbia will be sending you an invitation in the near future for that event.

Lyme is the fastest growing vector borne disease in this country. As you know New York is reporting the highest number of cases followed by Connecticut, New Jersey and Pennsylvania. The Centers for Disease Control and Prevention, CDC, announced last week that there was an increase in cases of 8%, which you probably heard, for the year 2000. Reported cases are actually about 1/10th of the actual number of reportable cases. The Northeast region, of course of which we are a part, constitutes about 90% of the cases in the country. There are thousands of patients in these states that require doctors to treat them for chronic disease. That is symptoms that last longer than a typical twenty-eight day treatment. That may include ophthalmologic, cardiac and central nervous system problems including seizures, depression and psychiatric manifestations.

To prevent chronic disease individuals must be diagnosed early and treated adequately. Lack of effective tests and physician education combined with the increase in other tick borne diseases is contributing to late diagnosis and often undertreatment. The CDC has criteria for Lyme Disease but of course they are meant for surveillance purposes only. Not for diagnostic purposes. I may deviate a little to mention in the testimony this morning of the Department of Health it was rather disturbing to hear them say that they sometimes chose witnesses who were favorable and enhanced the CDC's surveillance criteria. Many people do not meet the surveillance criteria set up by the CDC, but some doctors are only diagnosing using that criteria and insurance companies are often only paying for treatment based on those criteria.

Lyme literate physicians, LLMD's is what we call the, often treat patients who do not fit that surveillance criteria and therefore they frequently find themselves in a difficult position of battling with their insurance providers and also with their state licensing boards. LLMD's generally base their treatment regimen on clinical findings and sometimes use testing to support those findings. In New York a small number of physicians are willing to take the risk associated with treating chronic Lyme patients. We estimate about 60% of our LLMD's in New York have been investigated fro treatment practices by the OPMC. I reserve the right to change that number upon hearing that there was an eighth physician today.

New York, recognizing the significance of clinical practice issues states that in clinical practice cases, "experts may be made available by the state medical society of the state of New York by county medical societies and specialty societies and by New York state medical associations dedicated to the advancement of non-conventional medical treatments."

The law does not however define experts. So individuals who have little or no clinical experience treating chronic Lyme Disease for example can be called to testify as experts in cases involving physicians treating chronic Lyme Disease. Plus the OPMC process does not include a disclosure mechanism for the expert witness or it doesn't have any discovery proceedings. Thus, witnesses who may have significant vested interests may provide information to an OPMC committee or testify against doctors without ever disclosing those interests unless or until the doctors attorney elicits them during the hearing. So in other words these experts can be called in prior to and be possibly a part of charging, bringing the charges against this doctor, and yet there is no disclosure there at that particular point in time.

Since no discovery proceedings are available it can't be determined if for example an expert against the doctor may have used the exact same practice or procedure for a patient in the same circumstances in his own practice, yet he is now testifying against the doctor for that same practice. A circumstance by the way, which we know, has already risen with some Lyme cases.

The initial interview the doctor has with the OPMC is extremely an important one in the process. This meeting is the basis for the determination of charging or not charging the doctor, yet no official transcript is kept of that meeting. Thus, the doctor's attorney ahs no way of subpoenaing the record of this interview if the said interview results in the doctor being charged. An official transcript should be made of this meeting.

In clinical practice cases, the role played by support of evidence is crucial. Currently in New York State evidence is only admissible after two tiers are satisfied. First, the hearing officer rules whether evidence is or is not admissible. Second, if evidence is rules admissible upon cross examination the state expert is asked to recognize the authoritativeness of a particular journal for example. That same expert has usually been involved in making the initial recommendations that the doctor be charged and now he or she is deciding on the evidence to be admitted. If he or she refuses to recognize the journal it cannot be admitted as evidence.

In one instance, evidence was allowed to be introduced in a case in defense of the doctor, yet in another case the same evidence was not allowed to be entered. The first doctor was able to support his practices and was vindicated on most of the charges while the second doctor was unable to admit the same evidence and so his case was not favorably disposed of at least from our point of view.

There is existing federal case law, which New York does not recognize that says the judge may take judicial notice and allow the literature to be presented. I did include in your packet a summary of the case.

Due Process is often an issue. The Federation of State Medical Boards states on its website, "Whatever the complaint, physicians are afforded the rights of due process as the board investigates a complaint of misconduct. The tenants of due process state that an individual is innocent until proven guilty and apply to formal hearing, judicial procedures, which the medical board carries out by following established rules and principles to ensure that a physician is not treated unfairly, arbitrarily or unreasonably." It seems that the literature standards results in unfair treatment of certain doctors since hostile experts solely determine which particular peer review qualify as evidence.

Rules of evidence such as bringing in outside evidence, for example decisions from another case, need to be modified. Currently precedent is not set so that the hearing committee may conclude in one case for example that Lyme Disease is indeed mired in scientific controversy and should not be a basis for an OPMC investigation. Yet the next doctor can be similarly charged and he may not be able to use that previous finding. He has to go through the same process all over again at which he may or may not be able to establish that particular point.

Secrecy surrounding the process should be examined. Currently doctors are never told the original complainant or complaint. It puts the doctor in the position of not being able to confront his or her accuser. While some secrecy is understandable, the legislature must consider a more equitable practice perhaps following New Jersey's example with a form which currently states on the application cover letter that, "a copy of the complaint will be forwarded to the licensee with a cover letter from the board requiring a detailed written response to the allegations in the complaint. The complainant should understand that any information supplied on the compliant may be subject to public disclosure." I did also put that in your packet. Another option is to have the OPMC use a from which states that all complainants and complaints will be released to the doctor unless the complainant specifies why that disclosure could be harmful to him or her.

At the least, complainants could be separated by category. For example patients, insurance companies, peers, other entities. Patient complaint identities could always remain confidential if that's' felt necessary. Other complainants would not need to give the reason if they felt their identity should be kept secret. A peer's reason to remain anonymous could be evaluated by the OPMC and a determination made based on the reasons provided by that peer.

Insurance companies or other entities most likely to have vested interests could be identified immediately to the charged physician and to the hearing committee. As expressed in a letter to Assembly Health Chair Dick Gottfried by Congressman Christopher H. Smith, Chairman of the United States House of Representatives Veterans Affairs Committee, "While it is the job of state boards of medical examiners to review complaints logged against doctors and to take action when needed, a concern that was expressed in my state was that some of the complaints were field not by patients but by insurance companies and entities associated with them who did not want to pay for the costs associated with treating Lyme patients under an aggressive antibiotic regimen. Using a state panel that is supposed to investigate malpractice to help achieve financial gain is simply wrong."

Secrecy has also perpetuated some questionable view points. Officials have been publicly adamant in the cases of several of our treating physicians who were charged that the charges were unrelated to Lyme Disease treatment. A few advocates including me and some New York assembly people attended a series of meetings with OPMC, Health Department, and other New York State officials. We were repeatedly told at these meetings that the Department of Health was not targeting Lyme doctors nor were they soliciting complaints against them, and that charges against them were unrelated to Lyme Disease treatment.

According to a New York Assemblyman present at the last meeting we attended, the charges are indeed directly relates to Lyme Disease treatment. We also subsequently discovered the word Lyme appears a total of forty-one times in the factual allegations against two of the doctors.

As for not soliciting complaints, a patient letter suggesting otherwise details her call to the New York Department of Health and two subsequent calls from them to her. Only seeking information on Lyme and other tick borne diseases from the Department of Health she was subject to her diagnosis being questioned, told to see another physician other than her own, received an unsolicited complaint form in the mail from the DOH and was pressured to file a complaint against her treating doctor. The DOH told her that he and the DOH could obtain anyone's records that they chose including hers. She never filed a complaint. However, her medical records were pulled soon after the call and she never heard from that DOH doctor again. Her treating physician was eventually charged despite the fact that the patient never filed a complaint against him.

I might also add that it was particularly disturbing this morning to hear that that particular individual from the Health Department was not in any disciplined. I was the individual, I believe that brought it to their attention at our first meeting in New York concerning the letter from this particular patient. I was very disturbed to hear that he wasn't disciplined for the main reason that apparently at least that doctor plus someone else in the Health Department who answered the phone both immediately knew who this patient's physician was and that charges were being contemplated against that and this doctor on the phone told this patient that they had other charges, other complaints against this physician. All of which it's my understanding is totally not legal according to the way New York law reads at this particular point in time.

We in the Lyme community believe the targeting of New York Lyme physicians began in 1993, when United States Senator Edward Kennedy heard a prominent New York physician testify in his DC Senate hearings concerning the problems facing Lyme treating physicians. "A few state health departments have now begun to investigate in a very threatening way, physicians who have more liberal views on Lyme Disease diagnosis and treatment than they do. And indeed I have to confess that today I feel I am taking a personal risk, a large one because I am stating these views publicly." Two weeks after hearing that physician received a notice that an investigation was done by New York State.

Even after he was cleared by the OPMC on initial complaints, his lawyer informed him his case was kept open, something the lawyer had never seen in his thirty years of experience. The investigation continued with more charts pulled. Although chart selection was supposedly random, only charts of chronic Lyme patients were kept for further review. He was eventually charged. In 2001, eight years after the initial investigation he was exonerated on most of the charges against him. Incredibly the OPMC then filed an appeal of that decision rendered by its own hearing committee. Ironically, one of the OPMC officials told us at a meeting that New York State provided the best example if due process for doctor disciplines in the nation.

Targeting physicians and rendering discipline in a scientific controversy are not the role of the OPMC or any state licensing review board. Comments from numerous officials nationwide support this statement. Office of US Congressman Joseph Pitts, Pennsylvania to Health Committee Chair Dick Gottfried, "We believe Lyme Disease is a scientific controversy and consequently medical boards should not prosecute physicians based on their long term treatment of this devastating illness."

Congressman Christopher Smith to Chairman Gottfried, "Lyme Disease is unique because debates among the medical and scientific community often revolve not only around treatment as is the case for other diseases but around diagnosis as well. Two well trained and well educated physicians could review identical patient symptoms and make a different diagnosis. I do not want anyone to suffer because the doctor they were depending on for treatment has decided to stop seeing Lyme patients out of fear that aggressive therapy will in an investigation of their practice. The investigatory chilling effect could have a real impact on the ability of patients to receive quality health care when seeking assistance with this disease."

From Connecticut Attorney General Blumenthal at his state hearings on Lyme Disease, "Different people at various stages of the disease may need different treatments and my own basic philosophy is that decisions about diagnosis and treatment ought to be made by the treating physician and the patient and those decisions ought to be respected by insurance companies, by government officials and ought not to be governed by arbitrary artificial dictates or regulations."

From the interim report The Prevalence of Tick Borne Illnesses in Texas from the Texas Senate Committee on Administration, "The committee has concluded from this study that insufficient information on how these diseases should be identified and managed over the long term exists for ANYONE, in caps and their emphasis, to make a definitive determination of appropriate diagnostic or treatment guidelines." Furthermore, a report recommendation "Directs the Board of Medical Examiners to develop guidelines in reviewing and investigating medical care providers when treatment of tick borne illnesses is involved."

A letter to U.S. Senator Rick Santorum, Pennsylvania from the Pennsylvania Commissioner of the Bureau of Professional and Occupational Affairs, "Regarding your inquiry into whether the office is conducting any investigations into the medical practices of Pennsylvania licensed physicians who treat Lyme Disease, anecdotal responses indicate that there may have been one or two such complaints in recent years which were closed without any action by the prosecution division because of a lack of consensus in the medical community as to the appropriate standard made it difficult or impossible for a prosecutor on behalf of the Commonwealth with an experts opinion in support that a particular method of treatment did not meet the standard of care."

The ultimate irony is embodied in my last quote, which also appears to hint at a double standard for Lyme Disease treating physicians in New York. In a letter to a Lyme patient who filed a complaint against a doctor opposed to long term treatment, Dr. Ansel Marks, MD, JD, Executive Secretary for the New York Board of Professional Medical Conduct, Misconduct excuse me, states, "As defined by law, a difference of medical opinion in an of itself is not medical misconduct." I guess what we would like to know is why is it medical misconduct when our Lyme treating physicians practice it but it isn't when someone who refuses to treat beyond twenty-eight days.

The secrecy surrounding the OPMC process combined with the power of the agency is a concern for legitimate physicians and patients alike, since there appears to be little or no oversight of the OPMC. Through their actions they have the power to bring New York physicians and consequently patients to bended knee, but where is the authority that can bring them to their knees? Even at the first hearing before the Health Committee in November no one from that office appeared. I wondered what message that sent to the legislators. I know what message it sent to me, we are not accountable to you in the actions we have taken against Lyme Disease treating physicians.

After hearing today's testimony, I ask that you find a way to rein in the power of the agency without losing sight of its mission to protect the patients. Please remember Lyme Disease patients are not being protected when their treating physicians are afraid to treat in New York and patients have to travel elsewhere to get treatment. Are not being protected when their doctors must spend half their practice time defending their right to practice medicine according to their best clinical judgment. They are not being protected when their already small number of doctors become smaller because their licenses are revoked for treatment of a debilitating illness, Lyme Disease about which the then Commissioner of the New York State Department of Health, David Axelrod, M.D. said in a 1988 communication to all New York Physicians, "Treatment of secondary and tertiary Lyme Disease may require prolonged therapy with intravenous antibiotics."

Just before I close I would ask you that if you would try to ascertain at what point that the OPMC stopped using treatment guidelines as a standard in their cases against Lyme physicians. Since we have numerous letters and I hate to say dozens but probably dozens from the OPMC where they cite treatment guidelines in Lyme Disease. Today they clearly stated that they use no treatment guidelines. That was extremely disturbing to me and certainly would like you to check that out.

Secondly, I would also like to say that some elected officials in New York feel there is not a problem with Lyme Disease physicians treating. We have been told very particularly in the meeting with some Senators that there is absolutely not a problem. This has no chilling effect on your physicians. I can personally tell you my daughter who moved to New York City and lives and works there cannot be treated for her Lyme Disease. She has had Lyme for thirteen years. Very seriously heart problems, seizures, (inaudible) on her brain due to the disease. She has to come back to New Jersey to get treatment because in the city the Lyme doctors, we do have some doctors that have treated and some of them are continuing with patients that they have but they won't take on any new ones and others have deserted "the practice of Lyme Disease."

I thank you very much for the opportunity today to speak.

ASSEMBLYMAN GOTTFRIED: There is an interesting dichotomy which could appear on the surface to be contradictory but I don't think it really is. That is on the one hand we've got both consumers and people from advocacy groups saying that OPMC is nowhere near aggressive enough. Examples of bad doctors not being dealt with etc. On the other hand consumers and advocates telling us that OPMC is hounding and prosecuting their doctors. How can both be true? I think the answer is that both can certainly be true. There is nothing contradictory in the notion of a law enforcement agency looking the other way or being lax about certain things and being excessively emphatic about others. I think human history is filled with such examples.

Question is how does a legislative body respond to those two concerns. There are a variety of ways that a legislative body can try to restrain government power and try to protect people's due process rights. As Blair Horner observed unless it was Art, the questions in our hearing notice do tend to focus on that. On that side of the question and that may be because it may have to do with my biases and my educational training. It may also have to do with the fact that that is a clearer thing for a legislative body to look at.

What is harder is how does a legislative body help to make an executive branch agency more vigorous. You can't legislate vigor. It's often like pushing on a rope. We have tried to do that in the legislature from time to time usually without much success.

I think Blair and Art your testimony gives us a few ideas for things that we could do that would help to put more vigor in appropriate cases in OPMC. I would like to explore those at greater lengths with you. This is probably not the precise moment to do that. I think the notion of expanding the number of lay members on the board either conceivably requiring that the chairer of a board be a lay member is certainly intriguing.

One question I would like to put to you and any of you can respond to it. In the case involving Dr. Orens, the so called public member was a physicians assistant. I don't think the legislature contemplated when we provided for a public member that that would result in a panel entirely made up of licensed professionals under the jurisdiction of OPMC. I wonder what the reaction of any of you would be if, and I'm not necessarily proposing this just inquiring what your reaction would be, if there were two non-physician members on a board what would be your thought if one of them were allowed to be a licensed professional who was not under the jurisdiction of OPMC? Which would I suppose in most cases turn out to be a nurse but could be other health care professionals, a dentist.

MR. LEVINE: As we said over the years when we have looked at this and sort of tried to be pragmatic we thought that there might be a subset of cases which didn't involve clinical practice issues which were appropriate for a majority of law folks, a panel where the majority of lay members, to hear and that we sort of suggested that we understood that in clinical practice issues you might need people with more expertise in clinical practice to pass judgment.

I think it's certainly worth exploring the notion that you could have one from column A, one from column B and one column C approach. Where you had a physician, another health professional who was not under the jurisdiction of OPMC and truly a member as here in clinical practice cases.

I think it's just worth exploring the notion of more transparency and more public participation as a good thing not a bad thing. That it is the opaqueness of the process that I think creates a lot of mistrust from a variety of viewpoints about how this process works and potential biases and so forth. I believe the more open the system is the more trustworthy it becomes.

It's really secrecy that causes problems and causes distrust. Anything that opens it up to more participation other than by physicians whose organizations nominate, its not even ordinary physicians necessarily. They have to be suggested or nominated by organizations for the most part. That's how they come to the panel. It's even a subpopulation of the population of physicians. It doesn't represent the diversity of New York State at all. I think anything that makes it more diverse and more open would be a positive, would move forward so I would be happy to explore that.

MR. HORNER: Just to add. Art at the end of his answer there is something that I think is really important. The board is made up again of 150 some odd people. The vast majority, the last time I counted, its been a few years, the last time I counted 85% of them were physicians. All of those people are nominated by medical societies or specialty societies. You have a very status quo insular group really that runs the show. So the idea of bringing new professionals is certainly one I think worth thinking about because it would break up the insularity.

Also we really need to think harder in all professions but certainly in this case of getting lay people involved because they bring a different set of prospectives to the table. Professionals to some extent think they are for the grace of God go I. Where as I think well trained and supported public members will be looking at it more often from a patient prospective and I think that's what lacks.

When we look at OPMC Art and I and others who have looked at this stuff for years part of it we think is a cultural problem and that it is reflected of who runs it and who sits at the table, who makes the decisions and where they all come from. A more open process but it would require I think support.

These members that go on the board of Professional Medical Conduct have the support of the medical societies. They go to conferences by their specialty societies. They get accolades. They get written up. They are in the Federation of State Medical Boards. Aren't these people great? There is no consumer support system for the public members. The danger is they can often get sucked up into behaving more like a professional member than a public one.

I think we need to do both things. I think the idea of other professionals is fine. I think we need though to figure out ways to ensure that average people, lay people, public members are in there fighting from the public point of view. That I think would change the culture of the office.

MS. MILLER: I must say I am shocked to find that I agree with Arthur on a couple of points. We need to know there is a point of departure, yes.

ASSEMBLYMAN GOTTFRIED: It is often said by the way that reasonable people can differ. Reasonable people can also agree.

MS. MILLER: In relation to lay people it should be noted and probably you two have made the same observation that many of the "lay people" on the board of Professional Medical Conduct are in fact involved in the health field. Either as hospital administrators, malpractice attorneys. You name it there are very few lay people who are actually lay people. I think a few of them are nuns and priests. That's not even, from my background that's not lay. So genuine lay people absolutely.

But then the time of departure is Blair says no more physician involvement but yes peer review has to be better. It has to be amongst peers who are knowledgeable of the practice being examined. That by its nature is going to require greater physician involvement.

An interesting note as a result of the Oren's decision is that, what the court said in Oren's is that a physician assistant is not a lay person. The statute requires that every panel consist of two physicians and a layperson. So now according to the statute and Oren's physician assistants cannot sit on any panels. Yet physicians assistants are being brought before these panels so they are not getting peer review anymore at all.


ASSEMBLYMAN MILLER: Just a comment about the difference between the lay members and the physician members. Clearly no one would want a panel that was bias one way or the other. I know that it's easy to assume that the physician who is a member of the panel would automatically be biased in favor of the physician.

Let me give you another way to look at it. That is the better the physician the more qualified the physician. Two things happen. First they are far less tolerant of people in their profession who might appear to be clueless or wrong and dangerous. The other thing is it's very difficult to convince the real expert that the person being charged was caught between two choices both of which were acceptable. It's the person who truly knows what's going on that may be able to say well one of these choices might have appeared to be acceptable but in reality because of this, this and this it really wasn't. And that this was the only real choice they could have done.

So again where you may be gaining something you may also be losing the greatest in depth ability to understand exactly what the choices really were. We have all seen double talk and we've all seen things where you can almost be convinced that both sides are right or that both sides were equal. But the person who really knows, and it goes back to something that you learn especially in the area of diagnosis, that an A typical something is normally a typical something else but the diagnostician didn't know what it was.

So the more expert you have the more you have a chance of coming to a real valid opinion. Although obviously there is a balance to both. We wouldn't want the brotherhood to be protecting the brotherhood. I guess that's the other fear.

Let me just say to Pat you could join the Miller's anytime you would like.

MS. SMITH: Thank you. If I may I would just like to make one comment on what you said Assemblyman Gottfried. I don't think it's necessarily a bad idea to include some more lay people in the process but I have to be honest, again as an outsider here coming in and looking at this process over the last couple of years and discussing it with doctors, lawyers and patients. To me the biggest drawback I see to the process is the secrecy. I feel that if you remove to some of these layers of secrecy that surround this process and this agency I think that some of your other problems will dissolve. I base that on twelve years that I spent on the board of education.

In that capacity and also I was involved at the state level and the county level. I saw that districts were accountable when they had to be accountable. If somebody up above wasn't holding them accountable they were just going on their merry way doing what they wanted despite what the law might say or something else. You must have accountability. This is my personal opinion here. My personal opinion is I don't see them having accountability.

I am very disturbed by the things that I heard here today in relationship to some of the meetings which you were privy to also Assemblyman Miller, you know that we sat at. It's very disturbing to me. Somebody has got to be in charge of the ship. I don't know who it is. I don't know who is putting out these letters to patients and to doctors saying well we have treatment guidelines and then we come back here to find out that we don't. I don't know why there is no communication that somebody sitting and answering the phone is soliciting complaints. You mean they don't know this. They didn't know this. Pat Smith had to come from New Jersey to tell them this. That's hard for me to believe. It's really hard for me to believe. So there needs to be accountability. Somehow you have to make the members of the OPMC official them accountable. Whether it's through an election process, a reappointment every couple of years or somebody coming in and I don't know putting them up on the website if they do something wrong. I don't know that seems a good way to go these days. Something needs to be done. It needs to be accountability.

These gentlemen I think a lot of their points were valid. I didn't disagree with a lot of them believe it or not. Again I just see the accountability because of the secrecy. So I think that if you can lift that veil and I think we lifted a little bit today. I don't think you are going to like what you are going to see under there. I know I haven't liked what I have seen.

ASSEMBLYMAN MILLER: Just getting back to what you have said. You notice how they refer to the individual as an employee or it was someone working and they didn't mention that it was a physician or that it was a doctor or someone who is in a position to know how the system ran. It was sort of as if the janitor happened to pick up the phone and call and solicit a complaint which is not what it was at all.


MS. MILLER: Blair put across the concern that medical societies are nominating the members of the board. In our experience it hasn't made a difference where they come from. Of the 150 members of the board, five of the members of the board are from the non-conventional medical community. The statute we passed in 1994 required at least two. Until the Gantt case not one of them had ever been assigned to either an investigative panel or to a hearing panel involving non-conventional medicine. One of them is on the leading homeopaths associated with a major hospital teaching institution in New York State. He has never been consulted on any of the seven cases that I know of involving homeopathy. So it doesn't matter where the physicians are coming from if there is a tendency within or an institutional laziness towards certain assignments.

MR. HORNER: Or an institutional bias. I think one of the things we would say by having sort of an allopathic establishment be the nominating resource for most of the physicians you don't create an open situation at all.

Another suggestion on sort of openness is that perhaps the assignments should be again a matter of public record and the OPMC should be required on a regular basis so the rest of the world can see how assignments are made per member. For example there was the concern some time ago by the Campanello committee about members that never served at all. The suggestion that the -- by the way the Campanello report got buried. I sort of have a vested interest because it was sort of my idea to have a panel like that and I think it's a shame that under Commissioner DiBuono all that happened with that report is it was sort of discussed at a retreat of the Medical Society of the State of New York and then as far as I know there was no public discussion of that report and its recommendations and its observations about the process.

One of the things that they brought up for example was that there were a number of members of the board that never served. The suggestion was that if they didn't serve they should be off the board. That you wanted people who wanted to be there who wanted to serve.

There is I think a real lot of reason, there is a good reason to require that board to report on a regular basis the assignments that they make so that the public can sort of at least monitor and be able to say hey guys you are not using the alternative physicians you have. You are not using all of the expertise that you have in an equitable way that would improve the process.

MS. MILLER: Currently the only way you are getting that information is in the orders where the panel membership. So you would have to track every order at this time.

ASSEMBLYMAN GOTTFRIED: And you only get that information if the order is a discipline of the doctor.

MS. MILLER: Not if it's a consent.

ASSEMBLYMAN GOTTFRIED: Right. Or a rejection of the charges?

A VOICE: Right.

ASSEMBLYMAN GOTTFRIED: Blair and Art you suggested the notion of a consumer assistance unit which is intriguing. Do you know if there is anything like that in any other jurisdiction?

MR. LEVINE: I am pretty sure in some of my work with Citizen Advocacy Center, I am on the board and they're work with state boards of all kinds. I think there are examples from other states whether they are boards of medicine or other professions. Wisconsin Monica says. There are lots of examples of all the things we talk about being done in other stats. Nothing we are suggesting or I think anybody is suggesting here is off the wall. It's stuff that has moved over time in other states. I mean forty years ago there weren't public members anywhere. That was a no, no. Now we have states with the majority of public members. We have states where the chair person must be a public member. I am not arguing that that is necessarily good or bad. I am just saying that there has been movement on the issue of what the discipline process should look like. There are lots of examples from around the country of ways people have found to deal with these problems that are worth at least having a public discussion about and deciding whether we want to follow those examples or not.

MR. HORNER: Just to add. One of the reasons why thought of this is we get calls all the time about people who are frustrated. They can't get a straight answer. They don't know what happened to their case. So I think its governments job to help folks that are dealing with government bureaucracy particularly when it's a case where someone in their family or themselves who have been injured. We just think it will be a lot easier for people and it seems to be a real need given the kinds of calls that I get. You heard a panel earlier with Ilene Corina and PULSE's folks. I mean a lot of folks are out there that are looking for help and they don't feel like that they get it. Certainly that has been conveyed to me anecdotally over the phone.

MR. LEVINE: If one more word. They don't understand what is appropriate for OPMC, what isn't, what might be better brought to another venue. So it is just a helpful government function to be able to say to somebody look I understand you have a complaint. I understand something happened that you don't like but this is not the venue to bring that to. There are other places you can do that. That would be a rally helpful function in sorting out and helping people. I think reduce the burden on the board of having to take without that kind of process simply having to write down every compliant and the great majority as Assemblyman Miller suggested it are thrown aside. It might actually make for a more efficient process if there was that kind of help up front. Like an ombudsman yes.

ASSEMBLYMAN MILLER: I think what you said is absolutely essential that these things should be cleared right away so that in fact you don't have someone sitting there waiting for this office to do something and then find out that the statute of limitations ran out and now they cannot proceed with another venue to correct the wrong.

What would you think about mandating if you have 150 people after you do five you can't do anymore until everyone else, so that if you have 150 people everyone should have their shot at doing something. Or there is no reason for them to be on the board. Now you may not want to rotate them constantly but you may want to say that if you serve twice then you don't get to serve again until every other member has served at least twice and then go through the list. Or mandate that it's the, some mandate that you just don't put people under its window dressing. That would force the situation where you can't use the hanging judge over and again because you are going to have to go to somewhere else.

MR. LEVINE: I think that's a good suggestion. I think the only logistic problem is because New York State to its credit I think wants to use practicing rather than retired physician. The logistics can be difficult.

ASSEMBLYMAN MILLER: Volunteered to be on the board.

MR. LEVINE: I understand.

ASSEMBLYMAN MILLER: If you accept the position than accept it.

MR. LEVINE: Well getting everybody's dates together. I think what you are saying is that there should be demonstration that a small percent of the board membership isn't being relied upon to be the hearing boards and it be spread around as equitably as possible.

MS. MILLER: Other states have a much more vigorous reporting of their disciplinary process including these types of issues. I would suggest looking at Texas reports. They even break down complaint sources into categories of crude number of complaints versus complaints that go to charges. Interestingly in Texas their report was that where insurers were a very small number of the gross complaints of cases that went to charges, insurers being the complainant went way up.

ASSEMBLYMAN MILLER: We don't know what our board does because they have information back at the homestead that they didn't bring with them or share with us.

MS. MILLER: See if they were ranching in Texas it would be a different story.

ASSEMBLYMAN MILLER: We really don't know what they actually do they just don't make it available to us.

ASSEMBLYMAN GOTTFRIED: Okay. Thank you very much. We are going to take another five or ten minute break. The stenographer and actually a couple of the panel members need a break.

(Whereupon at 5:12 P.M. the State Assembly Hearing on Disciplinary Process of Physicians and Physicians Assistants was in recess.)