ASSEMBLYMAN GOTTFRIED: Thank you. Next would be a panel of witnesses Hugh Campbell, Peter Barber, Nathan Denbin, Steve Lockwood and Wilfred Friedman. I gather Howard Teich is not here. Okay. Hugh Campbell.
MR. CAMPBELL: Good afternoon. My name is Hugh Campbell. I am the President of the New York State Trail Lawyers Association. To my right to Susan Mate, special counsel to the New York State Trail lawyers Association. This afternoon, this evening as a matter of fact I would like to take the opportunity to thank Assemblyman Gottfried and Assemblyman Miller for inviting us to make this presentation before this body.
The New York State Trial Lawyers Association represents the concern of the attorneys of our state who advocate on behalf of people who are injured and the families of people who have died as the result of wrongful conduct of others. These injured people and bereaved families are the casualties of our failure to present harm to the public from the misconduct of others. As you know, the American civil justice system attempts to provide a remedy to these injured or bereaved persons and in the process also exposes wrongful conduct and establishes an incentive against future wrongful conduct.
In the case of medical misconduct the risk of harm to innocent people is particularly high. The Institute of Medicine of the National Academy of Science concluded in a 1999 report that the medical errors whether they rise to the level of negligence, kill 44,000 to 98,000 hospitalized Americans a year. We know that medical errors also are occurring in nursing homes and pharmacies, in clinics and doctors' offices and especially in an ever increasing number of office based surgery.
Strict laws and effective procedures to enforce those laws are critical to prevent such harm and to provide justice in the event that such harm is not prevented. For that reason this hearing is extremely important and has a great potential to move this issue forward for the protection of public health and safety.
You have raised many questions about the evidentiary standards and due process procedures that should be used in a disciplinary hearing. We wish to point out that jury verdicts reached in medical malpractice cases should serve as a solid ground for initiating disciplinary procedures. A malpractice verdict rendered by a jury is based on a trial that included stringent evidentiary standards and strict due process procedures. If a doctor has been found by a jury to have engaged in medical malpractice that caused injury to a person, that verdict should carry special and compelling weight in the conduct of an administrative proceeding by the Office of Professional Medical Conduct.
In March 2000 the Daily News ran a series of articles on medical malpractice. It found that from 1990 through 1998 almost 90% of doctors had clean malpractice records. They made no malpractice payments whatsoever. It found that 2% of New York doctors had made at least three payments but were responsible for nearly 36% of the payments and 39% of the dollars paid for malpractice. It further found that 79% of the New York doctors who made ten malpractice payments were not disciplined in any way.
Unfortunately, malpractice insurance premiums are not based on performance so those payments do not act as an incentive for providing safety precautions in the practice of medicine. If physicians are experience rated, this is rated individually based on their record the doctors with clean records would be rewarded or taking safety precautions. At the same time there would be an additional financial incentive for less careful doctors to improve their practices. Instead unfortunately the 90% of clean doctors are unfairly carrying the burden of malpractice insurance premium that subsidized the handful of doctors with bad malpractice records.
Effective new measures are needed to target the bad doctors, I'm sorry the bad actors among physicians. The Office of Professional Medical Conduct should make better use of the results of medical malpractice civil action. The office is notified by malpractice insurers about every suit filed against doctors, every malpractice payment they make and the allegation made in the suit. The agency also has access to the malpractice information stored in the National Practitioner Data Bank. It should be a matter of concern that many of our members who specialize in malpractice inform us that neither they nor to the best of their knowledge their clients have ever been approached by the Health Department with an inquiry about the final results of their litigation.
We on the State Trail Lawyers Association advocate a three strike rule. Any doctor who receives within a period of ten years three malpractice jury verdicts that have either been affirmed on appeal or settled after verdict should be subject to an investigation and hearing regarding revocation of his or her license to practice.
You have raised questions today regarding whether or not the disciplinary hearing should more closely follow the due process requirement of criminal proceedings. We would urge the assembly to consider the related policy question of whether or not certain forms of misconduct should be defined as criminal acts and subject to prosecution or as acts subject to specific civil penalties. New York State Trial Lawyers Association believes that certain very serious misconduct related to issues of accountability and disclosure should bear such penalties.
If I as a motorist hit a pedestrian and drive away my flight constitutes a crime of hit and run driving. Whether I am actually judged negligent in hitting that person or not I have done wrong by failing to stay on the scene and remain accountable for my actions. This is true even though I have no previous relationship to that pedestrian and my sole obligation to that pedestrian is as a fellow citizen.
On the other hand if a doctor knows that his or her actions have caused harm to a patient but fails to notify the patient, no specific penalty applies for that conduct. This is true even though doctors have a professional and ethical duty to provide proper care to their patients.
Compounding that irony New York State law actually creates an incentive not to tell the patient of the harm. New York State has established a shorter statute of limitations for medical malpractice than the other forms of negligence. And that period runs from the date of the negligent act rather than from the date on which the patient discovers that he or she has been injured. In effect, New York law rewards a physician who betrays the trust of a patient.
Indeed the abhorrent behavior of such hit and run doctors should carry a criminal penalty. We recommend that the Public Health Law be amended to establish a criminal penalty analogous to leaving the scene of an accident.
NYSTLA also would urge that the statute of limitations for medical malpractice actions should not begin to run until a proper incident report is filed. Such a statute would encourage prompt filing of incident reports and, where a proper report is not filed, preserve the rights of the innocent and unsuspecting patient who has not yet figured out that something went wrong.
In fact the Department of Health last February released an analysis of data submitted through the New York Patient Occurrence and Tracking System which concludes that hospitals particularly those in the New York City area, are significantly underreporting adverse incidents. In one category patient deaths within 48 hours of surgery, the statewide compliance rate for reporting was only 16%. It is axiomatic that the disciplinary process is a moot issue if the requirement for incident reporting is being flouted so blatantly.
It is worth pointing out that honesty and disclosure do not result in increased lawsuits. A study published in the December 22, 1999 issue of the Annals of Internal Medicine found that a Veterans Affairs hospital in Lexington, Kentucky, which instituted a prompt and full disclosure policy reduced litigation. The study concluded that because the hospital staff was honest about its error fewer patients felt betrayed and the hospital and the patients did not become adversaries.
Among the key methods used to cover up a hit and run malpractice incident are the creation of misleadingly incomplete records, the outright entry of false information, and the destruction of important records. Doctors who create misleadingly incomplete records or falsify or improperly alter or destroy medical records, or order such records to be falsified, improperly altered or destroyed should be subject to criminal charges or in the alternative a stringent civil penalty under the CPLR. Such behavior can prevent patients from learning the truth about their medical history and the causes and consequences of their medical conditions. Falsification or intentional and improper alteration or destruction of medical records also should be deemed presumptive grounds in a professional disciplinary proceeding for revocation of the medical license.
If the average citizen must sign a tax return under penalty of perjury it is certainly reasonable to require a physician to document accurately and honestly the medical record of his or her patient. In fact physicians should be required to certify under penalty of perjury any and all medical records that they create or sign.
A specific and stiff civil penalty should apply to doctors who allow a person who is not a licensed medical professional to assist in surgery. In the not too recent past for example a doctor allowed an employee of a medical device manufacturer to conduct surgical procedures. Such behavior also should be considered presumptive grounds for revocation of the medical license.
Finally, the Public Health Law also should impose specific and stiff civil penalty on doctors who engage in what is known as ghost surgery. That is a doctor who tells a patient that he or she personally will perform the surgery and then substitutes another surgeon without first informing the patient and obtaining the patient's consent. In addition a specific and stiff penalty should apply to doctors who have primary responsibility for the surgery yet leaves the operating room before the surgery has been completed without leaving a physician of equivalent experience to take his or her place.
I thank you for he opportunity to present these comments. We hope that these preliminary ideas can be developed through further discussion in the important effort to ensure greater accountability by the physicians to prevent acts of medical malpractice that cause injury to members of the public in our state. Again we wish to thank you and if you have any questions we would be more than happy to answer them.
ASSEMBLYMAN GOTTFRIED: Okay. Mr. Barber.
MR. BARBER: Thank you Chairman Gottfried. My name is Peter Barber. I am an attorney in Albany, New York. I have devoted the past ten years or so assisting doctors in these disciplinary proceedings. I have provided the committee with my written comments. I am going to vary from that given the latest of the hour. Also the fact that Monica Miller and Andy Schlafly seemed to address some of the issues I was going to address.
I want to focus on a couple of things. First of all this morning Council Berens of the Department of Health I think indicated that he was open to improvements but he couldn't suggest any at that time. I have based upon the seven or eight hours since that comment I would hope that the committee may disagree at that conclusion. I however want to address a couple of areas that have been, that I have experienced personally that I do think needs some reform.
The first one is the interview process. As the committee understands the interview process really is imbedded in the investigation process. It generally but not always is the first opportunity for the licensee to have an understanding or charges that have been brought against him and it has very brief understanding of what is the nature of the charges. But what is (inaudible) about this thing and really what sets it aside from the attorney disciplinary proceeding is you are not given a copy of the complaint. I am not suggesting that you need a copy of the complaint of member patient at this point but you at least should see hat is the basis upon which OPMC is considering charges. I think at a minimum you should be given a copy of the investigative accurate report. I don't care whether it's in draft or its preliminary or its final. Whatever label you want to put on it. You should at least know what is it that is bringing you to the table here today.
What's also (inaudible) about this procedure is you are not given a warning that any statement that you give at that interview can be used against you at a subsequent hearing. The crucial flow of that is under Public Health Law Section 10 there is a section called legal presumptions. Base their report by an investigator, written report is presumptive evidence of the facts stated therein. Invariably the statements given by a physician or anybody else that is being interviewed are contained in a summary of that report and that summary even without the investigator being there is often introduced at the hearing. Again depriving the physician of a fundamental right of cross examination.
My suggestions again would be that clearly you should be advised right up front before you go up to the interview that any statement you give whether its oral or written can be used against you in a subsequent proceeding.
Also as was indicated earlier the report of the expert should be given to the doctor at that time because it provides an opportunity for both sides to understand where they are coming from. It also gives meaning to the right of the doctor to give his own expert report during this process. If there is nothing upon which to respond or to gage his expert report than it is meaningless. And, in fact, with very few exceptions, I advise physicians to not proceed in the process from which there is little or no benefit.
The second thing is corollary to this is again in terms of reports and statements is the production of the complaints. Not only the complaints but the summary of the interview by investigators typically of patients. Again what happens is in practice you are at the hearing and for the first time, the first time you see the complaint or see the summary of the interview or the statement is after the witness has testified.
At that point you have two choices. One read very quickly. Usually these things are multiple pages and they are singled spaced. Or two you risk antagonizing the hearing committee, usually they travel the distance, and ask for a break of some duration because generally that report or that statement has something in it that requires conferring either with certainly the client, the physician or somebody in his office or what not.
So again there is nothing that I can see and certainly attorney Berens did not offer any justification why that complaint in the statement associated with it cannot be given at the time that the charges are brought. Again the Public Health Law only requires that a notice of the hearing and a summary of the charges be given to the physician. It is my contention that at that point the confidentiality proceedings are already established. There is nothing that of you know of concern at this point. Everybody knows what the issue is and therefore I think it is incumbent upon the public authorities to give a copy of that complaint and also the summary of the statements obtained by the investigator.
Finally I just want to address because Mr. Schlafly did a nice job of it. Again I did not address it in my written submission because I didn't think it was appropriate to address or raise individual cases. I was involved in the case involving Dr. Dan Alexander. I only raise it because it shows I think when you hear some of the facts and I will just give you a very slight background of it. Is that when the day is done the due process that was applied during the proceeding which the Appellate Division held was appropriate because it followed the statute was good enough to result in the revocation of this doctor's license. Again as Mr. Schlafly indicated cross examination was limited. We even had a chaperone who was in the room testify and said nothing improper took place. But yet OPMC, sorry the committee decides that she is biased because she works for him.
We also have the first expert by OPMC who reviewed it and found there was no misconduct. Not only did we have his report into evidence we flew him in and he testified again. Again it was, the hearing committee basically said that's very interesting but we are going to go with the guy who was actually here, the second guy, after shopping around.
Finally what was strange about that case and again it goes to show why you should have the complaints up front is that the initial contemporaneous complaint filed by two other patients was investigated by OPMC and found not to have merit. They didn't pursue it.
Flash forward five years later a malpractice action now is commenced against this physician. It's published in the local newspaper. The attorney representing the patient is listed. Those two patients now contact that individual, that attorney. They now file much more salacious. They amend their complaint. They basically are incomplete inconsistent with what they said earlier and basically again ignoring the fact that the chaperone was there saying nothing improper took place. Despite all that you have a hearing committee that comes basically saying well we think its 51% likely that the patients are still telling the truth. Again I can't agree more with Mr. Schlafly's contentions or suggestions that a much more rigid standard must be applied particularly when you are talking about the revocation of a license.
What you have here is when you go to the Appellate Division you generally go for the most part on two different issues. One is you are saying that you have a misconduct case. The one on one conduct. Who do you believe the doctor or the patient? Well the Appellate Division always says that's a credibility determination. That's the problem to the hearing committee, sorry.
Or you are going up there saying a question regarding clinical practice and whether or not it's a matter of experts. The hearing committee goes in favor of the OPMC. You come to the Appellate Division they say sorry OPMC had the best opportunity to judge that situation. We are not going to talk to you. We are not going to review expert determinations done by the hearing committee.
Again my contention is if you are going to have a meaningful due process and that's going to be the gage upon which the Appellate Division third department is viewing this situation, we need to have a much more stringent, much more protective rights afforded to doctors. Certainly rights that we are already affording to attorneys and other professionals that are already affording to attorneys and other professionals that are licensed by the Department of Education.
ASSEMBLYMAN GOTTFRIED: Mr. Denbin.
MR. DENBIN: Thank you. Mr. Chairman, Mr. Miller I thank you for the opportunity to appear here before you. I apologize for not providing you with a written copy. I have been on trial. As a matter of fact I didn't think I would be able to be here today. I had an appearance before OPMC for a pre-hearing conference which the judge forgot about so I was able to get here.
Let me tell you about myself and a little about my experience because I think I can bring to bear on your considerations a somewhat different experience as the prior speaker has discussed with you. A hands on experience. I have been a Bureau Chief in the District Attorney's office. I started my professional life in the criminal area.
I became the regional chief attorney and deputy director statewide for Medicaid fraud investigations. I have a rather solid background I think in the fraud and criminal area.
I subsequently became a partner in a major medical malpractice firm where I had defended physicians for over a decade where I began to specialize going back to the time when the commissioner was David Axelrod which was quite awhile ago. I have been specializing in appearances before OPMC for probably two decades.
Some of the things that I think have to be brought to this committee's attention is not only the concern of due process because certainly that is an important concern and something that you know can be remedied or proposals can be made. But what I think is more important than the form of due process is the actuality of what occurs during OPMC hearings.
When I was a prosecutor there were some judges that were very prosecutorial oriented. When defense counsel would make motions and do whatever they had to do, we'll give him due process, we'll give him enough rope and then we'll hang him. That is the concern that I have having experiences appearance before OPMC for a long time. I don't think the process is fair. I don't think the physician gets a fair shake before the panel.
I think as the case that happened that just was presented to you by Mr. Barber I could come up with five different cases where I could call a physician who was chairman of he department, fully experienced in the procedure, world renowned credentials from the best schools in the world and they will ignore his testimony and they will jump on the testimony of the state's physician who had no motive to lie who performed the procedure on one occasion. That is a true case.
So the real thing is how do we assure that a physician has fair shake before the committee and before the panel. Let me touch on the process and bring it back to the actual hearing. There is no doubt that the form of the investigation is there. We give you the right to explain the allegation.
I also do hearings before the education the OPD, The Office of Professional Discipline. They take a somewhat different approach. They give you the complaint when it's clear who the complainant is. Here is the complaint. This is the issue. This what we are addressing.
When I go down to the investigative interview I yell and scream at the investigator what is this damn thing about. What are the allegations my client is facing. Well it has to do with quality of care. What quality of care? Well on these four cases. What are the issues? What do we prepare? What do we deal with?
There is no physician in a malpractice case, and lord knows I do malpractice cases and I do them on both sides now so I know what is involved in malpractice cases. There is no physician that is going to go to a deposition without extensive preparation and having a bill of particulars and a further bill of particulars. Because you wouldn't do it when you are dealing with money. But when you are dealing with revocation it doesn't matter.
I don't have to tell you and the investigators, I have done homicide. I have prosecuted murderers. Sometimes they have gotten more respect, more dignity and more information than my board certified physicians who I represent and go down there.
A notion of sandbagging a physician is prevalent. There is no obligation on these guys to provide you with exculpatory material. There are times when they would introduce half a hospital record. As soon as they introduced half a hospital record I knew there was stuff in the rest of the hospital record that was beneficial to my client. They wouldn't get for me. They wouldn't produce it. I had to do whatever I had to do to get the records.
The investigative process you have an opportunity to explain and I go down and I deal with them. Because if you don't you know they are going to go in front of their investigating committee some secret process where an investigator appears before an investigating committee presenting the material. I analogize that to an indictment. Well there is a grand jury. There are grand jury minutes. I don't know what the investigator says before this panel. I don't know what he produces in front of them. There is no record. I do know that if I am dealing with certain investigators the odds are 99% that my guy is going to be brought up on charges.
That process from the initial step of the initial investigative interview and how it is led to being brought up on charges. I don't know why this person is being brought up on charges and another one is. I don't know why one physician is brought up a year and half later on charges when we go to an interview. It happens. There is something wrong with the process in that leads to not only the interview, not only the investigation, not only what the individual what the physician is told what are the outcomes so you can prepare for it. I am relatively sophisticated in medical issues so I could prepare it but if another attorney went in there and wasn't that familiar you have to guess where they are going. That's not fair. So if you don't give me the specific complaint give me something on what you are talking about. I get that from the education department. Why not? You are dealing with a physician's livelihood and right to earn a living.
Let me say something that I find reprehensible about the process. The OPMC talks about revocation about a physician's license the same way well you so you don't work as a doctor you do something else. If you are not working at Bloomingdales you work at Macy's. What is the big deal. None of them, I have never had a physician on a panel or anyone from OPMC articulate what it means for a physician to go to medical school to have that dream to have that joyous occasion when you fulfill that dream of becoming a physician and these guys take it away like its nothing.
Let me tell you something about the respect of New York OPMC throughout the nation. They have more revocations than anyone else. England used to hang for pick pocketing. What does it prove? What in the world does it prove that they have more revocation? I still say as I have said in 1986 they cannot the wheat from the chafe. They cannot separate the real rotten apple and the guy that has one or two malpractice cases. They can't do it.
I had a physician, a board certified physician that was a pediatrician that was wonderful, loved hospital based physicians. Two unfortunate incidents and complicated cases. Peer review by the hospital. Great physician. Great group. They supported him. There was some quality of care issue. Why is this physician's license revoked? Why are my physicians not heard? Why are the textbooks I cite ignored? Why? Well you know revoke his license.
I have gotten physician's licensed in other states. Florida laughed at a revocation that New York took revoking a physician's license for fraud. For what? He took a sporamatry machine to him in the office. He charged $1.50 or he didn't even charge but it wasn't medically necessary. But he is screening and he is doing it. No matter what witness I call it doesn't matter as long as they get a witness that says it's not necessary. Florida laughed at the revocation and restored his license.
What are we talking about here about a process that when we revoke physician's licenses we are looking good. You have to do it to the right person. When you execute somebody you not only have to give him due process it has to be the right person.
One of the things that I have been fully concerned with during the course of my experience with OPMC. The relationship between the judge, the panel and the prosecutors. For a long period of time they were all in the same office. They go to weekends together. I walk into a panel and I have a prosecutor and all the members of the panel saying how are you doing to the prosecutor. What is going on here? How do I have a fair hearing with this panel that knows the prosecutor that jokes with him, that talks with him, that does everything, that god knows what else they have done. There are times they go away for weekends together with OPMC and the board. It is not a fair process.
I tried an identical case, an identical case in New York and in New Jersey. In New York my client's license was revoked. New Jersey started the action so we got around collateral estoppel and tried the exact same case in front of an ALJ and they added fourteen charges to my client. Every one of them was dismissed. The same cases that New York revoked he was totally exonerated in the state of New Jersey. I Pennsylvania I have done the same thing. In Connecticut I have done the same thing. Something is decidedly wrong with the process here in New York.
Let me tell you about what happens when you finally win a case. You finally get someone on the committee that will listen to your witnesses. I have had people on the panel who I knew who used to be my experts when I was doing medical malpractice defense. They left. They could not be on a committee that was not fair. The committee sat down there and they said this guy would not have been brought on charges if he wasn't guilty as could be. That was the beginning of the process. That's what happens.
There was a physician's assistant, before I heard someone talking about a physician's assistant, whose life ambition was to become a physician's assistant. Who started out as a lab tech. Who worked his way through. Who was charged baselessly with committing improper examinations on pregnant patients. Six counts. Every one of them dismissed as appropriate. I finally had a committee that would hear the testimony. Their expert fell apart and the witnesses fell apart. I won the case. You know what they found him guilty of? Not putting correct information when he was wrongly discharged from Mt. Sinai Hospital. The people that hired him learned about it later. They loved him. They kept him on. He was a great PA. So where does he go? ARB.
I never bring a matter before the review board. Let's name it. That is not a review board. That is the backup in case someone escapes the hearing. It is not a review board. There is no way you get a fair review in front of those people. They are designed to prevent anyone from escaping the system.
What happened to this poor guy, his life dream and I am telling you this was the immigrant you worked his way up who won a union scholarship. What happened in front of the ARB? They revoked his license. Why? Because he didn't give correct information. So here we have a guy that was wrongly accused. That was about to be hung. Somehow escaped and they kill him for escaping. That's exactly what happened. There is no review process. That is the truth.
I don't know any lawyer who is experienced in this area that in his right mind will go in front of the review board if he has a half way decent determination. There is no review board. There is no fairness on the review board. There is no fairness of most of the committee members.
I heard talk about the ability of OPMC to choose what committee members they have. I guarantee you there are committee members that never in all the years of service have found for a physician. Never. They pick the judges. That's the forum you are going in front of. You are going to preoccupy yourself with the form. How do we make sure? How do we do -- you are not dealing with the route of the problem. Part of the route of the problem is the misunderstanding of what is involved in medical practice.
My personal physician I defended in a malpractice case. Anyone worth their sole knows that a person could be sued for malpractice and be a damn good physician. OPMC knows that. So from the beginning we have -- then where do we go to the Appellate Division. I have been in front of the Appellate Division god knows how many times. It is like knocking your head against the wall. It is a political climate. It is a narrow area of review. It shocks the conscious. Violates due process. OPMC knows how to follow the form. Let me tell you that. They know how to follow the form. We'll give him enough rope and then we'll hang him anyway. That's what happens.
The Appellate Division is not like the Appellate Division on California. I have been in Michigan. I have been in other places where you get a fair shake. Where they hear the issues and they make a legitimate determination. They don't say it's all a matter of credibility. Why are you ignoring all the witnesses in his case? Why are you ignoring my witness who happens to be chairman of the department? Why do you do that? That's what happens in OPMC.
If you want to I think improve the process and give a fair shake to the physician. You have got to deal with the thinking that he has to prove his innocence no matter what. No way in the world am I going to allow myself to be tricked by these attorneys is the thinking of members of the committees. I think from my experience that in order for a physician, and let me tell you there are a lot of good physicians that have their license revoked for reasons that I can't see. We have got to set some guidelines. Why are there no guidelines for sentencing? California has published guidelines for sentencing. Why do they have the discretion that if a guy commits malpractice, if a guy commits a departure on one case or two cases, revoke his license. Why is that the only means of resolving an issue? That's what my experience is. Do you want to know something? I think we as a society are not benefiting from all these revocations because I think we are losing a lot of good physicians. Physicians who the patients rally care for. Physicians who provide wonderful good services and they are gone. They are revoked.
Let me tell you about the restoration process. There is no restoration process. The same people who sit on the committee who take away the license and sit there to consider restoring it. It's not done. We don't have a system of rehabilitation or we don't have a system of reeducation. I have pushed years ago for reeducation. Anywhere I got something done in Syracuse or downstate or anywhere it fell by the boards if something happened. No physician is going to stick his neck out to do it.
I think there is a real problem. I think as a society have got to address it. I don't think we are going to address it by saying well let's allow a little bit more cross examination or a little bit more of this. In New Jersey they have a separate independent judiciary. They make sure that the judges are separated from the prosecutors and there is a fair hearing. By fair hearing I don't mean the form I mean the substance.
Thank you very much gentleman.
ASSEMBLYMAN GOTTFRIED: Thank you. Steve Lockwood.
MR. LOCKWOOD: Thank you Chairman Gottfried and Assemblyman Miller and staff. I am Steven Lockwood. I am an Upstate attorney that has been practicing since 1967. I am a trial attorney. I am also a health care attorney. I have only recently gotten involved in this arena with the OPMC and it was on behalf of Dr. Charles Gantt who was one of the physicians who testified before you earlier in the day. I got involved after Dr. Gantt had been investigated for two and a half years. On the eve of charges being brought against him in May of 2000. I have submitted my written remarks and I will try to make my comments short. I know it's late.
I cannot agree more heartedly that this is not a fair system. The OPMC is really a prosecutorial agency that once it decides it is going to investigate and prosecute a physician is like the federal government. It's like a criminal prosecution, a federal criminal prosecution with no due process. The state of New York has unlimited resources and no oversight. There is nobody that makes these people accountable. I want especially to mention that I am also a proud member of FAIM the Foundation for the Advancement of Innovative Medicine which I joined because I had gotten involved in this area.
Dr. Gantt has a brilliant, creative, wonderful doctor who uses safe, nutritional remedies to treat his patients instead of pharmaceuticals. There is absolutely no basis for which the chargers were brought against him. In fact before they brought the charges on which we had seventeen separate hearing dates in troy, New York they had subpoenaed some patient records and they sent them down to a Professor Darlene Dean in New York City at one of the teaching hospitals. After his review he wrote back and basically said I see no problems with these charts at all. Dr. Gantt complied with the accepted standards of medical care and I don't see any basis for bringing any charges. What did the OPMC do? Well they went and found another doctor who would criticize Dr. Gantt and find that he violated standard of care. Who did they find? They found a conventional emergency room based physician who totally lacked any knowledge in non-conventional medical treatments especially those that Dr. Gantt practiced.
Your legislature, our legislature in 1994 passed the Alternative Medical Practices Act. I know you are all familiar with it. It basically amended two laws to make the changes. It amended the education law. I would just like to read from that because it amended the section to basically provide that the practice of medicine shall not be construed to affect or prevent and I quote "the physician's use of whatever medical care, conventional or non-conventional which effectively treats human disease, pain, injury, deformity or physical condition. That's Education Law Section 6527 subparagraph 4e.
It also changed the Public Health Law in Section 230. it provided that at least two members of the board of Professional Medical Conduct would be non-conventional physicians who devoted significant portion of their practice to non-conventional treatments. I guess there is now five according to what Monica Miller has advised you today.
It also provided that the New York State Medical Societies who were dedicated to the advancement of non-conventional medical treatment could make experts available to the Office of Professional Medical Conduct. I think most importantly the section of the Public Health Law that provided that investigation committees were mandated and the language of this statute says shall consult experts where clinical issues are involved. That section was amended to provide that the State Medical Associations could make non-conventional experts available to the Office of Professional Medical Conduct.
In selecting a conventional emergency room physician to investigate Dr. Gantt they violated that law. That is directly in violation of the laws you passed in 1994. This agency is an outlaw. Does not abide by the law. During the hearings we had Dr. Maliha, William Maliha was his name he was basically based in Albany. He is now a physician to royal family in Saudi Arabia. He left right after our hearings. He admitted that he had no knowledge or experience in non-conventional medical treatments and that he didn't even have a clue as to what Dr. Gantt was doing. The hearing committee which was comprised of two physicians and one supposed lay member but she was a physician's assistant also found that Dr. Maliha had no knowledge or experience in non-conventional medical treatments. So why are we having hearings? We had seventeen days of hearings and Dr. Gantt spent over $200,000 not only for some of my fees and attorneys fees but also the fees of three medical experts. All knowledgeable in non-conventional medical treatments. To refute the charges. To refute charges that really have no basis in fact whatsoever.
After all those hearings the really substantial charges of incompetence, gross negligence, fairly to adequately evaluate and treat. None of those were sustained. The hearing committee found that Dr. Gantt adequately evaluated and treated all nine of the patients he saw. They found that he was very knowledgeable in the type of medicine he practiced. They found that his methodology, orthomolecular methodology of using laboratory tests to investigate the underlying biochemical conditions and etiologies that make up the patients disease or symptoms was a good and acceptable methodology. They did not sustain. There was litany on each patient of charges. They are all like the same. One of the charges they said was that there were unnecessary medical tests. How they could charge that is beyond me. It's pretty apparent why they did. Because their medical expert didn't know why Dr. Gantt was testing for these things because he had never tested for them. They didn't sustain those charges. They found that the medical tests that were ordered for these patients were medically indicated. What did he get hung on? They did decide to sustain some charges. Record keeping.
If you ask anybody in this room that has been through this process, lawyers, physicians, experts anyone. You can always get a doctor on his medical records. In fact we had Dr. Sydney Baker who is really one of the foremost experts in the country on medical record keeping. He has a whole business she has built up after leaving Yale on it. He did that when he was at Yale. He said, " I don't care who it is, you give me any physician I can get him on his records. They will be inadequate." They always charge this.
There is a point that I want to make to you that I think you can really reform this process. Let me just, if you haven't been there I need to elucidate this. These medical record charges have a standard refrain. I bet you all of you gentleman have had your doctors subject to the same allegations. Here is what they say. Failure to take and/or document an adequate medical history. Failure to adequately evaluate and/or document such evaluation. Failure to perform a physical exam and/ or document such evaluation. Failure to perform a physical exam and/or document such examination. Failure to formulate and/or document an initial working diagnosis. Failure to maintain a medical record which actually reflected the evaluation and treatment.
Again these charges are against logic against every physician. They shouldn't even be part of a disciplinary Process The Office of Professional Medical Conduct and we developed this during Dr. Gantt's hearing through the testimony and cross examination of Dr. David Britain who is a medical reviewer for the OPMC who was involved in bringing the investigation to bear on Dr. Gantt. That the OPMC has not method for remediating record keeping deficiencies on the early side of things. It's only after a physician has been prosecuted and convicted basically. That's ridiculous.
Let's take for example what the Department of Health does instead with hospitals. I represented hospitals and health care systems or nursing homes. They don't revoke their operating license if they find deficiencies and patient harm. Instead they cite them and then they require the hospital or nursing home to come up with a plan of correction. Then once that is submitted they decide if that is acceptable and then they will come back unannounced and perhaps audit the hospital or nursing home to make sure they are living up to the plan of correction. The purpose of the plan of correction is to prevent the same sort of problems that they found when they cited the hospital from occurring again.
Remediation. Remediation should be on the front end. There should never be record keeping in the penalty phase. It's because it's their last resort. If they can't prove that you were incompetent or negligent or any patient harm then they will find record keeping and then the hearing committee will impose a penalty. Again I am new at this but let me just tell you what they did with Dr. Gantt. You know you think oh well geez they probably slapped him on the wrist and said go get some education. They suspended, they determined his license should be suspended for five years. They stayed four and half years of that suspension and said he would have to serve a six month suspension. They nevertheless said that he would have to have four and half years of probation. He is a solo practitioner. A non-conventional orthomolecular physician who has always practiced alone. There is only a few of them in the country. To be directly supervised for two years would mean that he would have to go into practice with some physician. That meant that some physician would have to look over everything he did for two years.
Then for the next two and half years he was going to be monitored by a physician that he had to pay for. He also had to pay for this physician who directly supervised him. The monitor would report quarterly or more frequently to the OPMC as to how his record keeping and how his practice was going. Whether he was living up to the accepted standards of medical care.
All of the charges that they bring against these physicians recite that the doctor, the respondent physician violated the accepted standards of medical care on such and such dates with such and such patient. There aren't any accepted standards of medical care. They are not written down anywhere. The Office of Professional Medical Conduct, The Department of Health can't fie them to you. The standards of care vary according to the type of practice you have. If you are a non-conventional physician you do different things than conventional physicians do. If you are a conventional physician you don't do the things that non-conventional physicians do. Basically standards of care should be outcome based. That's what that education law section that you gentleman and your colleagues passed, says. Because the Education Law says that a physician should be able to use whatever treatment conventional or non-conventional that effectively treats a patient's disease or injury or pain or deformity.
That's what this should focus on. That's why it is ridiculous that the administrative law judges and the hearing committees are not provided with the scientific and medical literature that applies to the treatments that doctors are utilizing. It would in a court of law you would have a battle of experts. That's what you should have. Because what we are talking about is medicine here and what we should be talking about is what's effective care for a patient.
Dr. Gantt's case there was no showing of patient harm. In fact as he told you earlier when it became apparent in the proceedings that these patients were the subject of charges had continued to treat with Dr. Gantt and had gotten well and we were putting it in the record. We got in on three patients. I got the records in for subsequent treatment including a 60 year old prostate cancer patient who had decided to forego radical surgery and radiation therapy and seek out alternative care and sought Dr. Gantt out who prescribed PC specs. He cured him. The prostate cancer which had been biopsied and diagnosed went away.
PC specs was a new innovative blend of herbs. The PC is for prostate cancer. It's very effective and other people have been using it. Neurologists have been using it. Mainstream conventional doctors who are the urologists who do the surgeries and the radiation therapists who radiate those cancers, they don't know about it. They don't approve of it.
So we got records in to show that the patient had been cured. All of a sudden the administrative law judge decided well I am not going to let any other later records in. We are just going to confine it to the period of time related in the charges and the fact that the OPMC had the phrase and on subsequent occasions well we're not just going to pay attention to that anymore. He basically in effect ruled that we had medical records that he had received in evidence but then he decided that he wasn't going to receive them. It's just Allison in Wonderland if you are there going through it.
I had a similar experience with an administrative law judge. The gentleman that was presiding over Dr. Gantt's case broke his leg. So for half a day we had a substitute ALJ who wasn't there at the morning session. When I went to cross examine the state's expert, Dr. Maliha he cut off my cross examination. I said well why aren't you letting me inquire into this? I don't think it's relevant to the charges. I said well he testified on direct this morning as to all of these matters and I am just cross examining him. He said I am not going to allow it. He said you can make a record at the end of the day. So at the end of that afternoon he said Mr. Lockwood do you want to make a record? And I said well judge are you going to be presiding at anymore of these hearings? And he said no and then referred to the other ALJ is going to be back. I said well then I guess it won't be necessary to make a record. But yes I would have made a record if he was going to prevent us from cross examining.
I would like to just mention a couple of other areas. I think that's absolutely essential that the complaint is made available to the physician and not be kept confidential. There is no way you could prevent and you can assure that a complaint is made in good faith it it's kept secret and hidden. It should see the light of day. If a patient has a legitimate complaint they ought to be willing to come forward and let it be stated. Because their medical records are going to be part of the proceedings anyway. It doesn't have to be made public but the physician ought to have it because it's just a basic guarantee of due process that you are advised of the charges against you and you are able to face your accuser.
Who should be able to complain? I understand I may be trotting on some legislation Chairman Gottfried that you had passed awhile ago but I don't see any reason why insurance companies or HMO's should be able to complain about physicians and precipitate investigations and prosecutions by the OPMC. These health plans and these insurance plans what are they interested in doing? They are interested in keeping the cost down and saving money. What qualifications do they have to know whether there has been patient harm or whether a physician is adequately treating? They don't have qualified experts. It's another problem of the OPMC. The medical reviewers at the OPMC are not qualified. They are not trained.
When the White House Commission on Complimentary and Alternative Medicine policy held hearing sin New York City a year ago, Margaret Burmaster who is the head of the regulatory reform branch of the Department of Health basically acknowledged that the Department of Health was no up to speed on non-conventional and alternative medical treatments. They needed to be educated. There's where some education should come as far as this process should go. They should have people who are educated and know about the treatments that are being used by the physicians they are trying to prosecute.
Another area I feel really violates due process is the administrative law judges do have tremendous discretion and they routinely, as I understand it and they did it in our proceedings, basically say that patients and patient family members are incompetent to testify and they won't hear their testimony. That's because they believe that patients have no knowledge or experience or ability to understand whether treatments they are receiving are ethicacious. That's really an old antiquated notion and certainly is not embraced by the modern day medical community especially the complimentary and alternative medical community who treats the patient as a partner in their care. Anybody who is involved in preventative medicine wants that patient motivated. They want them eating the right things. Staying away from the bad things. Embracing their treatment. They want to have the feedback as to whether or not these treatments are effective with them. Patients should be able to testify.
I want to end by telling you a story which it just shows you how vicious could be and it relates again to Dr. Gantt's proceeding. I had to argue long and hard on more than two inter-hearing conferences before we were allowed to have a patient, one patient testify. That was the 60 year old patient who had prostate cancer that Dr. Gantt healed. One of the charges involving that patient made by the OPMC was that Dr. Gantt represented to that patient that he had better treatment modalities for treating the prostate cancer and dissuaded that patient from pursuing conventional treatments of surgery radiation.
When they do that interview and I was not representing Dr. Gantt when he was interviewed. When they do the interview the medical interviewer makes notes and then he prepares a type written report. Those reports are admitted, they are rank hear say but they are admitted in evidence. In the report the medical reviewer and his name is Dr. David Britain in the Syracuse office, the Office of Professional Medical Conduct, he reported in that interview that Dr. Gantt admitted to him during his interview that he did just what that charge said. That he told this cancer patient that he has a better treatment modality and dissuaded him from seeking conventional treatments. Of course this was at the time when they brought the charges before this patient got well so he didn't know that he got well. Well Dr. Gantt vehemently denied that. But it's his word against the medical reviewer.
So I got the right to call that patient. He was the only patient we could call and his testimony was limited to that issue. When that patient testified the hearing committee was transfixed because he told that that was a lie. That Dr. Gantt never told him that. That he had walked out of the neurologist office months before he saw or consulted Dr. Gantt and decided to seek alternative treatments. He actually was seeking an alternative treatment from a non-conventional physician who was some greater distance from his house than Dr. Gantt when he heard about Dr. Gantt and went to Dr. Gantt. Those reports of those interviews are not accurate. You really can't cross examine them in any way. When I did try to cross examine Dr. Britain on that and I said Dr. Britain do you have your notes of that interview and he said no I destroyed my notes. I said well you destroyed your notes. Why did you destroy your notes? We always destroy our notes. It's on the advice of legal counsel for the Department of Health. I will end on that note.
ASSEMBLYMAN GOTTFRIED: Wilfred Friedman.
MR. FRIEDMAN: Not a good slot to be in. To clean up behind these guys is very difficult. Let me try something. First I am Fred Friedman. I practice at the law firm of Friedman and (inaudible) in New York. This is what we do. We deal with OPMC in a day in and day out basis. We don't do wills. We don't do house closings. We represent physicians or health care professionals with OPD. Everything that Nat Denbin said to you is straight talk. It's really the truth.
You have to understand how the system functions to appreciate how frustrating it is to go in and you have a letter from a client. The client says I just got this from the OPMC. If you get to them early enough you tell them if you get c all or someone comes to visit you tell them you are busy and don't talk to them. Very often they come in and they get whatever admissions they can.
In regards to the interview. I want to give you from what I wrote. I will submit my written after. What they do on the interview they don't even tell the physician that it's his interview. That he has the right to require the interview. He doesn't have to go to the interview. They send him a letter. They tell him we set up an interview for February 11th at 10:00 in the morning at their office. The doctor has no idea in many cases particularly if he hasn't consulted counsel that he has the right to say I don't want to come in and talk to you. First tell me what you want to know about. Nobody tells him that.
Let me run through a few things over here because I don't want to bury OPMC. I certainly don't want to praise them. We need a cop. You know we have police officers. We give them guns. We give them bullets. We give them a knife stick and handcuffs. We give them the right to question, to detain and to arrest. What do we with a cop who shoots a jaywalker. He just can't do that. OPMC can.
The real problem with OPMC is they love to overcharge. You would get a hundred charges against a physician. They can't prove anything except of course as was just testified to, when Steve said they charge record keeping.
Cherise and I had a case where we went three days. OPMC's expert on the stand for three days. At the end of that time because the panel was laughing at what he said. They offered to settle the case for record keeping violation. I took that offer. Because revocation is a very serious problem. The problem is if you take the record keeping charge and you gentleman may not know that every HMO every insurance company now wants to knock you off the panel because your license is restricted. It's sheer nonsense. They make you take a course somewhere on how to keep records.
You may want to ask counsel for OPMC why don't they use the retraining program in Syracuse anymore. If he can't give you the correct and truthful answer you call the associate being at Syracuse who ran the program. You ask Bill Grant why they don't use the program. Ask Bill Grant why when a doctor has to be evaluated he must go to Albany and spend $5,000 in Albany for two days or whatever the time takes as opposed to a nationally recognized program in Syracuse. Subpoena Dr. Grant. Ask him why.
There is absolutely no oversight in OPMC. As a matter of fact members of BPMC don't even know that they are different and separate from OPMC. They consider themselves one in the same. Nat Denbin is correct. They eat together, they drink together, they go to conferences together. There is no separation.
In my written remarks I have a suggestion. A simple suggestion that I am surprised I thought of it. My wife says I am a very complicated person. Why don't we take the names of every single member of the board for Professional Medical Conduct and assign a number to that name. Then why don't we take little balls and put the numbers on them and take a jury wheel and put the numbers in the jury wheel and have some clerk who is not part of OPMC reach his or her hand in and take it out and say number 111. Put it in the box. Number 36. Put it in the box. Number 27. That's the panel to try Dr. Miller. Oh what a great idea why didn't anyone ever think of that. Because it doesn't give them control.
Now what if one of them can't serve or has to be in the hospital that day? Great. Number 33 alternate number 1. Number 109 alternate number 2. Number 73 alternate number 3. Whala we have an impartial panel. OPMC didn't pick the panel. I certainly didn't pick the panel. Maybe we'll get three guys or three ladies who some combination of that who have no motive to do anything but fairly adjudicate the allegations.
Now what about ALJ's. Yes they are very close to everybody but you know you can even help that practice. Get another jury wheel. Take all the ALJ's give them a number throw them in the wheel. Grind up the wheel. Number 31 my goodness we have an ALJ and he wasn't picked by a prosecutor walking down one floor and saying by the way who is available to do something to try a case on the 14th?
I don't want to pick the judge. I don't want them to pick the judge. I don't want to pick the jury. I don't want them to pick the jury. I don't want a bunch of old retired doctors who are looking for work acting as the medical coordinators. No it's not politically correct for me to say that. And I shouldn't say it because I have to live with these people every day. But you know something I am not too sure that 90 year old doctors should be deciding whether a 35 year old OB/GYN is practicing medicine according to the standards in 2002 in New York City. I don't want to go upstate and meet with a medical coordinator who tells me that he used to practice in Great Neck but has been retired for 21 years. Great for him. Not great for my client. Who unfortunately was only 13 or 14 or 15 years old when this doctor retired.
This is 2002. We go to the moon. We do all kinds of crazy things. We can't get a system. You know we can get a system but the people at this table can't get it and OPMC will never give it to us not while there is a Commissioner who brags about having more disciplinary actions than any other place. More discipline than anybody else. First of all let's make the investigator learn the name of their organization.
I want to tell you a little story that I was going to close with but I like it now. I had a client who called me and said I just got a letter from an investigator. They are going to take away my license. I said well I don't think so but let me have it. He faxed it over and I took a look and I called the investigator. I dialed the number. This is exactly what I get. This is Mr. X Senior Medical Conduct Investigator for the Board of Professional Medical Misconduct. Well I figured somebody is pulling my let. Somebody put this recording on, gave me a phony extension so they could play with me. I've got a lot of friends at OPMC who like to do that. I called back. I get the same thing again. Now I will make you feel good. I changed it to Mr. X to protect the guilty. He is no longer with the Office of Professional Medical Misconduct.
The misconduct of the Office of Medical Professional Conduct hasn't changed. It's never going to change unless the legislature stands up and says wait a minute. We spend fortunes training doctors. The federal government invests a fortune training doctors. These men spend four years in college, four years in medical school, four, five or six or seven years in post graduate training. Get board certified and in many cases subboarded. Some investigator who doesn't really know what he is doing advised by a doctor who retired when this doctor was barmitzvahed, decides he is a lousy doctor. If we can't prove he is lousy doctor we will do as Lockwood said, we'll prove he can't keep the records. Well nobody can keep the kind of records they do.
I am trying to get my clients now to use computers in the examining rooms. Only because at least that way we'll have an absolutely legible record. I would love to have some of the medical coordinators produce the records which they kept when they were practicing to see how other record keepers will look at them.
Let me run through just a little bit here. We have cases involving restorations of physicians. We have the privilege of representing physicians who unfortunately have either become alcoholic or become addicted to mood altering substances and want to leave practice to get better. They go in, they take
in-patient treatment. They are followed for a long time with out-patient treatment. During this time they make what we call a temporary surrender of the license.
As you know they turn in their license and registration and when they get better and when they are ready you apply to the Board of Professional Medical Conduct through OPMC to be restored to practice. There are panel members who sit who have no idea what alcoholism is. Who have no idea what addiction is. Who don't know what a twelve step program is. Who will ask a question and we have heard it asked, do you know who the President of AA is. Without having any understanding there is not such individual.
It really is of little use to have a doctor appear and have the panel determine whether he fit to go back to practice if they have no knowledge of the disease from which he is recovering. That can be addressed so easily. They have an annual meeting of board. There is no reason they can't take half a day or have some lectures by experts in this field who volunteer to do it without any costs as a public service as we have done. So that the board members will know what's going on.
Let's talk a little bit about the panel members. We see the same faces again and again and again. It's no an accident. First of all if there are 150 to 200 board members there is no reason you shouldn't pick the panel members as I suggested. And, after those numbers are picked keep them out of the wheel for two months or three months or four months so that other people get a chance to do this. I don't want to see the same faces show up every time. I don't want to see a doctor fly in from his vacation to sit on a panel because he knows how important it is to OPMC for him to be there. I assure you it's not there to help my client. This is a regular practice. It must be stopped. We can't stop it. Only you can stop it.
I hear the department say over and over again that they are there to protect the health of the people of the State of New York. Let me ask you a question. If a doctor is addicted or a doctor is alcoholic and wants to surrender his license why not take the surrender and just drop the issue if there is no patient harm? Why insist oh my goodness he wrote prescriptions to feed his habit? Well we know he didn't write them to sell. We know he didn't write them for anybody else. He used the name Santa Claus on the prescription. A fictitious name. So, he committed a crime and we should prosecute him. What's more important going after that doctor with a charge of unprofessional conduct or taking his license saying thank you for being honest that you need treatment and getting him out of practice?
What protects his patients better, his not practicing on them or his practicing while someone like Steve Lockwood or Nat Denbin or myself or someone like us, I just couldn't think of your name, I apologize, or Peter Barber goes in and kills a year going through hearings while this doctor continues to practice because that's his right. That's his right.
Isn't it better for us to walk in and say here's the license. He's going down to Marworth or he's going down to Talbot or he's going to some other treatment facility. He is going to get better and then he's going to come back. Why is it necessary to bring a charge? Why do we want to do this? If he's an alcoholic he goes down to the corner and he buys a fifth of vodka and he gets bombed. If he's a doctor and he writes a prescription we should treat it the same way. Either there is a legitimate DSM 4 diagnosis called alcoholism, drug addiction, drug abuse or there isn't. If there is let's treat it like a disease and let's not insist that they make it a public matter and put it on the internet. If a doctor's got crone's disease we don't put that on the internet.
Let me ask again a politically incorrect question. Shouldn't I as a prospective patient of that surgeon know that in the middle of surgery he may get diarrhea and have to run out of the room. Why is that not something I should know. Or if he has instage renal disease. Why shouldn't I know that he is not going to be able to treat me more than another six or eight months because he's going to die. Because there is no stigma to renal disease. There is no stigma to Crones disease. There is a stigma to alcoholism and to addiction. If they are illnesses let's treat them like illnesses and let's stop it.
I am trying to race through this. I am not unmindful of the hour. We have had panel members want to know why a doctor doesn't just stop using the drug. Let me posit something to you. If a physician is earning several hundred thousand dollars a year and his got a wife and two or three kids in college and a mortgage. If
He's got a successful practice and his marriage is breaking up, his family is falling apart. Doesn't anybody realize that if he could say no he would say no. If it's a disease let's treat it like a disease.
Let's handle the business of whether to have a copy of the complaint given to the physician. What happens when a physician is accused by a delusional patient who he may never even have treated. He may never have seen the patient. Suddenly Senior Medical Conduct Investigator for the Department, Office of Professional Medical Misconduct sends him a letter. Wants to talk to him. He's investigating his practice with regard to a patient. If he says I don't have a record of such a patient. What you didn't keep a record? It's not well maybe he never saw the patient. Why not give him the complaint? We give murderers the names of witnesses. We give bank robbers the names of witnesses against them. What are we afraid of?
Certainly its clearly professional misconduct if he harasses the patient but more than that if you believe it necessary criminalize that kind of harassment. Criminalize harassment of a patient who makes a complaint where the complaint is furnished to the physician and he misuses that knowledge. For heaven sake you are going to tie up three board members, an administrative law judge, a senior medical conduct investigator, the physician, the physician's lawyer, for what? For a case that never should have even been brought. Where somebody should have looked at it, gone to Marks and said you know Dr. Marks this guy is obviously delusional. You never saw this patient. Close it and walk away.
It brings me to the IC. The investigating committee should function as a grand jury. We should be told when it's going to meet and you can find that out. We should be told that the physician and/or his lawyer has a right to go in and tell his story. He runs every risk that he runs when he stands in front of grand jury. But (inaudible) and I have sent letters to the IC and we have been successful sometimes in having them bring a much reduced charge from what OPMC looked for. Why shouldn't this doctor be able to walk in and say you two who are doctors let me tall you what happened. He is willing to take the risk. Why shouldn't he have that right? What are we worried about? Why shouldn't the IC's be picked out of the same jury wheel? Why should the IC's be hand picked by anybody.
Nothing should be so informal that the head of OPMC decides whether or not somebody will sit. I want to know why some doctors never sit. They show up to have dinner at the annual meeting. They show up to laugh at all the jokes at the annual meeting. They go out drinking at the annual meeting. Where are they for the real meetings? Where are they for the business of the Board for Professional Medical conduct? That's not there so we entertain ourselves at the Ramada or wherever it is in Albany, which I couldn't go to this year. I don't understand that.
Why aren't they required to and why aren't them removed or asked to resign if they turn down two assignments to sit on panels? Or if they fail to show up to take the courses. Why isn't every board member given a course in if you will record keeping so they know what it is when they see it. I know Steve and I can't define it. Most doctors know what inadequate record keeping is. Mostly what they charge as inadequate record keeping in fact is not.
We are in the middle of case right now with OPMC where they want to charge a psychiatrist with improper record keeping. He says yes somebody comes in to me and says I want to talk to you doctor. I have been crying since 9/11. Every time I look in that direction I start to weep and I think of my dead son. How much record keeping do you want to this guy to do? Do you really want him to a physical on this person? All the man wants to do is come in a talk to him. He wants to unburden himself. They want to charge him. I don't understand it.
By the way they will ultimately charge and once again they will overcharge because they want to be sure they end up with at least the record keeping charge.
Let me tell you what happens with demanding revocation. We tried once case involving a doctor where I think the committee and I don't find that they are uniformally unfriendly, were so offended by the demand for revocation that they gave him a two month suspension. We had offered more than to settle it. I don't understand why there is this insistence in the case where they found a client guilty of improper record keeping we had offered a reasonable sanction and retraining. They only would take revocation. My answer was you want revocation earn it. They were laughed out of the courtroom. My mistake was settling it for a record keeping violation.
At some point the question is are you benefiting yourself with the fees from continued day after day of hearings or benefiting the client by ending a farce and getting it over with.
There is so much you can say about it. I made a million others while I sat and listened to other testimony. I am not unmindful that there are lousy doctors who should be taken out of practice. That's not most of the doctors. I am not unmindful that there are crooks who shouldn't be permitted to practice. I am mindful that most physicians even dentists Dr. Miller are decent professionals who try very hard to do the very best for their patients. Putting lay people on, more lay people who don't understand the niceties of the profession isn't going to help.
I told you when we spoke earlier off the record, if I go to a dentist and I need implants in my jaw I don't want a lay person deciding whether he should have used system 1 or system 2. Neither does the dentist. I don't want a lay person deciding was there enough bone in the jaw for him to try to put the screw in or should he have put more cancalous slabs on first. That's outrageous. Again I don't want to fight with the patient advocates. I am a patient. My wife is a patient. My children are patients. I am also mindful of the fact that people should have rights. If the rights exist for you and for me then they should exist for all the doctors.
The only thing I am very thankful for is that I was asked to be a witness. Because for the last two weeks I have received a return of every phone call I have made to OPMC. I have been treated with the greatest respect by OPMC. I don't know what they thought I was going to say. Please invite me again. You have helped me immeasurably.
ASSEMBLYMAN GOTTFRIED: Thank you. I don't have any questions. Just have a couple of comments. One is if they have been very nice to you for a couple of weeks it must be something else because unless they're breaking into our office and going through our files they had no idea who were inviting today as witnesses.
MR. FRIEDMAN: I'm a sneak. I made sure they knew I was going to be here as a witness.
ASSEMBLYMAN GOTTFRIED: Secondly a couple of you made references to comparisons between the procedures available at OPD versus OPMC. If you could, after today's hearing, if you could, if it isn't in your testimony supplement that with some comparison of how the two procedures differ. I assume you mean that OPMC's procedures are not as good. I would be very interested in receiving that information.
MR. LOCKWOOD: Chairman Gottfried could I have the liberty of making one other comment?
ASSEMBLYMAN GOTTFRIED: If it is very brief.
MR. LOCKWOOD: It is. It relates to getting the patient's consent to get their records. Currently nothing restrains the OPMC in its search. They subpoena tons of medical records from physician's offices under penalty if you refuse to comply with it then they will charge you with violating the Public Health Law.
It is my understanding that many, many patients are outraged when they find the Office of Professional Medical Conduct has got their confidential medical records without their consent, is using them to prosecute the physician that they trust and was caring for them.
Often times like Dr. Gantt very efficaciously and then those same records are used when the physician is prosecuted and given to an even wider audience. The hearing committee and the -- so it would be a very matter to require the Office of Professional Medical Conduct to get a patient's consent before they got their medical record. And if the patient refused to consent that would be a great safeguard against an overzealous OPMC or jealous colleagues, conventional versus non-conventional physicians. I think it's something that you should consider.
MR. FRIEDMAN: I promise not more than thirty seconds. What they are doing with medical records just so you are aware of it. If they are investigating Dr. Gottfried and he is being treated by Dr. Miller they serve Dr. Miller with a letter and they just tell him produce the record of your patient Richard Gottfried. He then produces it believing that he is under investigation not knowing that the reason they want the record is so they can find out what Dr. Gottfried has told Dr. Miller as his treating physician. They do this.
When I challenge it they claim that they have some upstate court decision which they are supposed to send that justifies it. That is an outrage. In those cases Dr. Miller is a psychiatrist and Dr. Gottfried needs some help. So he goes to the psychiatrist and tells him what's on his mind. OPMC then grabs that and uses that record to buttress their investigation. They will not deny to you that they do and they will try to justify it. That certainly requires legislative attention.
ASSEMBLYMAN GOTTFRIED: Thank you.
ASSEMBLYMAN MILLER: Just one comment. Even though we haven't grilled you for a couple of hours. I think one of the key things that you should understand. That is I can't imagine anyone in Albany more dedicated to fairness which is what you were talking about and where there is certainly a whole scope of things. Certainly you don't care whether the executioner is picked arbitrarily or whether they are picked at random. If they are all executioners it hardly mattes. If the attitude is that we have to get him, it's them against us. It doesn't matter what we do. It's a matter of cleaning house and changing attitude. That's nothing that, you can't legislate attitude. When it comes to doing something fair I think that you can fully accept that Richard will analyze everything that you have said, do something about it and approach this from a standpoint of creating a fair system.
MR. FRIEDMAN: I have no question about it. I think the purse strings are probably the best way to go. If the department knows that unless it reins in the terrorists it's going to find its budget severely impacted, I think you will find a difference. Something has got to be done. I have doctors who want to leave in New York. I have practiced in Texas with permission, in California. I have never seen this kind of attitude. In Texas you get the state's expert, you give his report to your expert who writes his own report and then the investigator come back and says you know they don't agree, we better look into this further. Not you must have hired some kind of a higher gun who is lying. It's attitudinal and I think if Nat hits that that's the difference between OPD and OPMC, attitude. I don't know how you legislate attitude.
ASSEMBLYMAN GOTTFRIED: Thank you. We are going to take another brief break and then we will come back and we will then proceed in order with Joanna Amato, Leah McCabe, etc.
(Whereupon the State Assembly Hearing on Disciplinary Process of Physicians and Physicians Assistants was in recess.)