May 10, 2000
Dear Assemblywoman Acampora:
This is in response to your January 18, 2000 letter to Antonia C. Novello, M.D., M.P.H., Commissioner of Health, in support of physicians who treat chronic Lyme disease.
As prescribed under the Public Health Law, the Office of Professional Medical Conduct (OPMC) is required to investigate all complaints brought to its attention and provide staff support to the Board for Professional Medical Conduct (Board), which adjudicates the complaints. In 1999, the OPMC received 6,690 complaints. Neither OPMC nor the Board seeks out physicians to prosecute, or have disease categories that selectively invite their attention. This includes Lyme disease and those practitioners treating this disease.
In response to your specific concerns, it is important to note that OPMC has had a very small number of cases related to the treatment of patients with Lyme disease. In any such case that we may have investigated, it had been as the direct result of a complaint from a patient treated by the physician, or a complaint from a physician who provided subsequent treatment to the patient. In addition, none of the cases we have investigated have been on the basis of the choice of treatment modality, but instead have focused on the quality and adequacy of medical care.
The process for investigating allegations of physician misconduct is multifaceted and includes an extensive amount of fact finding and peer review. A comprehensive description of the physician discipline process in New York State follows, along with an enclosed flow chart illustrating the steps in the process.
Public Health Law S230 sets forth the composition of the Board and the process by which physician may be disciplined in New York. The Board consists of both lay and physician members. This extensive participation of the medical and lay communities in the New York disciplinary process allows us to fulfill our obligation to protect the patient public while assuring the medical licensee all due process rights.
Investigative staff within OPMC conduct investigations consistent with established protocols. A retrospective review of the medical care provided is conducted to assess the appropriateness of the examination, diagnosis, testing, treatment, specialist referrals, follow-up care and medical record documentation. In cases concerning clinical practice, the law requires that medical experts be consulted. To accomplish this, OPMC utilizes a panel of more than 750 outside board-certified physicians. The physician under investigation must be provided with an opportunity for an interview to provide an explanation of the issues under investigation, and may have counsel present.
Hearings are held before another three-person committee of the Board, from whom a chairperson is chosen. Again, the committee must be composed of two physicians and one lay member. During the hearing, both the physician and the State have the opportunity to be represented by counsel and to present evidence and witnesses, including fact, expert and character witnesses, in support of their respective positions. The process provides an opportunity for a full hearing of all the issues. All decisions are by majority vote.
Either the physician or the department may seek review of a hearing committees decision before the Administrative Review Board, a standing committee of the Board for Professional Medical Conduct, three of whom must be physicians, and two of whom must be lay members.
While questions about Lyme disease precipitated this discussion, it should be noted that OPMC and the Board are routinely 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. When an investigation is opened involving a complaint from a patient with a particular condition, outside medical opinions are obtained from experts in the field. In all cases, expert selection is based upon a review of the expert physician’s medical credentials in the disease or condition under review. We clearly recognize that equally qualified experts may render dissenting opinions on the same set of facts. In some cases, expert opinions do not support charges of misconduct and a case does not proceed to prosecution of another expert may be sought. In the latter instance, the hearing committee of the Board receives all expert opinions, whether favorable to the prosecution of not.
In the case of Lyme disease, specifically, there are different schools of thought regarding the use of long-term antibiotics for the treatment of chronic Lyme disease. The process provides for the physician under investigation to present expert medical testimony for consideration by the Board. It is the responsibility of the hearing committee to weigh the entire body of evidence, pro and con, and assess the credibility of the presentations made by both the prosecution and the defense. The Board is not given guidelines from the Department of Health on how to judge cases regarding Lyme disease. Nor is the hearing committee under any obligation to take disciplinary action against a physician simply because a case was brought forward for hearing. The evidence presented at hearing is the basis for the Board’s decision. As described earlier, physicians may appeal hearing committee decisions to the Review Board and civil courts.
The Office of Professional Medical Conduct and the Board for Professional Medical Conduct recognize that Lyme disease can be a severely debilitating disorder and are sensitive to the concerns of those individuals who suffer from this malady. In addition, we take very seriously our obligation to investigate and adjudicate matters of professional medical conduct in a manner that preserves and respects a physician’s due process rights. As is our normal practice, all who participate in the process have and will continue to examine all sides of the issues raised in a fair manner, with no preconceived positions or agendas. We do so to best serve members of the public and the physicians who care for them
I can assure you the Department of health is committed to ensuring that all patients receive the medical services they require and that physicians provide quality healthcare.
I hope this information is helpful to you. Thank you for sharing your concerns with us.
Sincerely,
Ansel R. Marks, M.D., J.D.
Executive Secretary
Board for Professional Medical Conduct
