We represented a physician in a Department of Health, OPMC, matter. The physician had a momentary sexual encounter (less than 10 seconds) with a patient. The patient reported this incident to the physician’s superior and the physician admitted the incident over the phone and then wrote a rather lengthy letter to his superior which clearly outlined exactly what occurred and stated that the physician was indeed at fault and that he could not believe how he had done such a thing.
OPMC asked the doctor to come in for an interview and that was when we became involved in the matter.
Before and after the interview we tried to negotiate some type of settlement with OPMC which would permit the physician to continue to practice medicine to earn a living. (The doctor was employed by a health care institution, he was not in private practice.) We tried to reach an agreement that would have the physician placed on probation, be monitored by another physician, pay a fine, perform public service, etc. In other words, since we could not defend against the incident we were willing to agree to almost anything as long as the doctor would keep his license and be able to continue to work. OPMC’s position was that they would accept nothing less than the surrender of the doctor’s license, end of story.
Since we could not negotiate any settlement with the Department, they promptly brought charges against the doctor.
At the Hearing our client testied, as per our advice, concerning his remorse regarding the incident and how such a thing had never happened before in his life and that he understood how wrong this event was and that such a thing would never happen again.
Also, we called the physician for whom he was working both before and after this event. That doctor stated that he had known our client for about four years and that he was an excellent part of the medical team. He also stated that he talked to our client every two weeks concerning patient/physician boundaries just to reinforce the idea that doctors can never put themselves in compromising positions with their patients.
In our summation to the Hearing Committee, two physicians and one layman, we emphasized that this incident was a solitary lapse of judgment in an otherwise blameless life. Therefore to revoke a doctor’s license is too harsh of a penalty.
The Hearing Committee found our client was guilty of the offense, but they did not revoke his license. They placed him on probation for two years allowing him to continue to practice in his institutional setting.
However, OPMC was not satisfied with this result and accordingly they appealed the matter to the Administrative Review Board, ARB. The ARB has the power to decrease or increase a penalty and OPMC asked the ARB to revoke our client’s license, despite the Hearing Committee’s findings, something the ARB has no difficulty in doing.
Thankfully, in this case, the ARB decided to affirm the Hearing Committee’s decision and our client continues to practice medicine today.
This case demonstrates that there are ways to bring even a hopeless appearing situation to a satisfactory conclusion. Obviously, a result such as this does not always happen, but one can give oneself at least the opportunity to obtain the best possible result if careful planning goes into the presentation of the facts.
This informational video was brought to you by Paul E. Walker, an experienced New York Health Care Professional Defense Lawyer.
