January 4, 2000
This is in response to your December 4 letter and December 8 e-mail to Governor Pataki concerning Raymond Dattwyler, M.D. This letter will also supplement the information provided to you on December 9 regarding Perry Orens, M.D. In your most recent letters, you offer your support for physicians who treat Lyme disease and you express your displeasure with Dr. Dattwyler's statements on the "Standard Care for Lyme Disease." I would like to describe for you the process for physician discipline in New York, as well as the investigative strategies employed.
The Board for Professional Medical Conduct (The Board), which is within the Department of Health, is charged with the statuatory responsibility under Section 230 of the Public Health Law to investigate and, where appropriate, prosecute allegations of medical misconduct by physicians and physician assistants in New York State. Pursuant to statute, the Board is comprised of both physicians and lay members and all decisions of the Board are issued by committees whose membership includes two physicians and a lay Board member.
Investigations are conducted by professional staff at the Office of Professional Medical Conduct (OPMC), often assisted by attorneys assigned from the Division of Legal Affairs. Where the investigation reveals that a physician may have engaged in professional medical misconduct, defined by statute to include an act of gross negligence or incompetence or repeated acts of simple negligence or incompetence, the case is reviewed by an Investigation Committee of the Board, consisting of two physicians and a lay member. If the Investigation Committee determines that a hearing is warranted, the case if referred for prosecution and is tried before a separate Hearing Committee, again consisting of two physicians and a lay Board member. During the course of the hearing, both the respondent physician and the Department of Health are given the opportunity to present evidence and witnesses on their behalf. If charges are sustained, the Hearing Committee can impose sanctions including revocation or suspension of the physician's license, probation and fines. Following the Hearing Committee determination, both the Department of Health and the physician can seek review by the Administrative Review Board (ARB), which is a standing committee of the Board consisting of three physicians and two lay members of the Board.
The Office of Professional Medical Conduct is often faced with the challenge of identifying legitimate, recognized, and authoritative opinions in medicine regarding the diagnosis, evaluation and treatment of a variety of medical conditions. We have had similar experiences with other diseases. In these instances, the Office relies heavily on recognized independent medical expert opinions to assist in formulating what are the appropriate standards of practice and and care to best protect the patient-public. It is reasonable to apply this investigative strategy for patients with either Lyme disease of its presumed diagnosis.
In the case of Lyme disease, the Centers for Disease Control, American Lyme Disease Foundation, Medical Letter, and a host of other sources have provided guidance for the standard care of Lyme disease. Rarely, if ever, have these guidelines indicated that anything more than two-three weeks of antibiotics are required to cure Lyme disease. (underline added)
As I mentioned previously, the responsibilities of the Office and Board for Professional Medical Conduct are described in the New York State Public Health Law and medical misconduct is defined in New York Education Law, Sections 6530 and 6531. As defined by law, a difference of medical opinion, and in this instance, an opinion rendered by a recognized expert during the course of an investigation or hearing, in and of itself, is not medical misconduct. Therefore, it would be inappropriate for the Board or the Office of Professional Medical Conduct to take an action with regard to Dr. Dattwyler.
I assure you that the Department of Health is committed to ensuring that patients receive the services they require and that physicians provide a quality of care that meets or exceeds standards established by state and federal regulations or the standards established by recognized experts in their special fields of expertise.
Your letter will be maintained in the files of the Office of Professional Medical Conduct.
Ansel R. Marks, M.D., J.D.
Board for Professional Medical Conduct
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