It is now the middle of February 2025, and it is time to discuss a few recent matters that the firm has been dealing with regarding The Office of Professional Medical Conduct, OPMC, and The Office of Professional Discipline, OPD.
For those who are new to the firm, we represent medical health providers in licensure issues when there are investigations by OPMC or OPD. These issues are varied, but there are several recurring themes such as claims of medical negligence, substance abuse, sexual issues, fraud, criminal convictions, etc. This article will highlight just a few recent issues to give the reader an idea of the work we do at Walker Medical Law.
1. We represented a registered nurse who put documentation in a medical record that was not verified on the day of the exam but was taken from an earlier examination by someone else. This
act was observed by another nurse who alerted the administration of this falsification of the patient’s record. Our client admitted the act to her employer and had been terminated months before she came to us. OPD was alerted of the situation by the employer and sent an investigation letter to the nurse. Obviously, the falsification was not defensible even though it was not done for any benefit of our client–she had documented the record in order to save time given the huge number of patients she had to deal with. In this type of situation, any nurse is certainly going to be given some type of reportable discipline because there is simply no rational way to defend the act. Accordingly, our job was to minimize the impact of any discipline as much as possible. The first goal was to prevent the nurse from spending any time at all “out of practice.” The reason for this is that it is clear that the Office of Medicaid Inspector General views an actual time out-of-practice discipline as being serious enough to perhaps place the nurse on the Medicaid Exclusion List. The placement on that List can actually make a nurse almost unemployable. We negotiated with the OPD attorney and managed to avoid any time out of practice. We also were able to negotiate language in the Consent Order that said the discipline was being put in place due to a record-keeping error. This was far, far, far preferable to language that might have stated that there was a falsification of a medical record. That type of language would have been far more detrimental to the nurse’s future career. Many times we are really doing damage control to try to minimize the adverse effect of the discipline on the client’s record. That was accomplished in this case.
2. A physician had been seriously damaged in a motor vehicle accident years earlier and had agreed to surrender his/her medical license to another state. After years of physical and cognitive therapy, the doctor applied for a medical license in New York. New York determined that a Hearing had to be held to decide if the physician was sufficiently capable of practicing as a physician from a physical and intellectual point of view. At the Hearing, we introduced into evidence hundreds of hours of Continuing Medical Education courses that our client had taken over the past several years. We also had a psychologist who had done an Independent Medical Examination on the client testify at the Hearing. Additionally, we had the doctor’s spouse testify and, of course, the doctor also testified. It should be noted that the accident had left the doctor with severe physical impairments including having a very difficult time speaking clearly. Notwithstanding this obvious problem, we had the client testify about the type of practice that was envisioned and how the doctor was going to accomplish the goal given the physical limitations. The Hearing Committee voted 2 to 1 to grant a medical license to our client, and the Department agreed not to appeal this decision. Obviously, this was an extremely satisfying result from the client’s point of view and from our point of view. You do not often get the chance to favorably affect someone’s life to this degree.
3. We represented a Licensed Practical Nurse who was accused of failing to notify her superiors of the medical condition of a prisoner. This prisoner subsequently died at the prison. Obviously, this was a serious matter. To deal with the case we found a write-up of the case on the internet by a state investigative panel. That report was detailed but it was also censored in many areas so that only perhaps 70 percent of the report was readable. However, what we could read was helpful to us as it showed, in part, that our client had notified her immediate superior of the prisoner’s condition. Also, we found a witness who agreed to testify that she was present at the time and that our client had reported the events in question. We then attended the OPD interview and we presented the facts to the investigator. A few weeks later, the complaint against our client was dismissed. This was a terrific outcome.
4. We represented a physician who had a substance abuse issue. The physician had been in therapy for several years, and was in, our opinion, completely “fit to practice.” OPMC wanted the physician to sign a Non Disciplinary Consent Order which would have been posted on the National Practitioner Data Bank, with the Federation of State Medical Boards, and on the OPMC website. We objected to all of the public posting and finally reached an agreement with OPMC that the Consent Order would not be posted anywhere. That agreement eliminated the possible problem of this entire matter becoming public and damaging the client’s future medical career.
These four cases are a small sample of the types of issues we deal with on a constant basis. We attempt to obtain the best possible result in every case, and that takes a good deal of work combined with 30-plus years of experience working with both OPMC and OPD.
