ENSURE YOU UNDERSTAND THE POSSIBLE DAMAGE TO YOUR BUSINESS AS A PHYSICIAN BEFORE SIGNING A CONSENT ORDER WITH THE NEW YORK STATE OFFICE OF PROFESSIONAL MEDICAL CONDUCT (OPMC)
When OPMC investigates a physician, they often have to decide whether to conclude the case by accepting some level of discipline through a Consent Order. This decision is truly important, as any discipline agreed upon may have a devastating impact on your ability to earn a living as a physician. That decision can only be made after an honest evaluation of the facts and a calculation as to the potential collateral damage that can result from the Consent Order.
The typical situation is that you, the physician, have made a relatively-serious error that has caused an OPMC investigation. At the end of the investigation, OPMC advises that it will bring formal charges of unprofessional conduct against you unless you agree to settle the matter by signing the Consent Order. When faced with this decision, some physicians resign to signing the Consent Order because they do not want to risk a worse result by fighting the charges at a formal Hearing. After all, they can have their license revoked at a Hearing, and that may permanently end their medical career.
However, before you sign the Consent Order, you must understand what can happen after the Consent Order is signed, posted to the OPMC website and filed with the National Practitioner Data Bank (NPDB). Depending on the content of the Consent Order, you may face some, or all of, the following unpleasant scenarios:
- You may be placed on the Medicaid/Medicare Exclusion List, which prevents you from being paid for care rendered to those types of patients;
- You may be barred for a period of time from being paid to treat Workers’ Compensation patients;
- You may lose your board certification;
- You may lose your hospital privileges;
- You may be removed from the approved provider list of some, or all, of the HMOs with whom you do business;
- If you have, or had, a license in another state, that state will probably bring an action against your license, even if that license is not active and you have not practiced in that state for many years.
Obviously, in the case of almost all physicians, any, some, or all of the above situations can effectively lower your ability to earn a living from your medical practice. Please note that your lawyer can determine, in advance of the signing of the Consent Order, whether some of these scenarios will actually occur. Accordingly, it is important that this inquiry takes place so that you are aware of at least some of the problems that might come your way. That being said, your attorney cannot answer all of the questions before you sign the Consent Order, so you have to judge what might happen, and what the result will be regarding your practice if the worst-case scenario occurs.
So, before you sign the Consent Order, you must understand the penalties if that Order becomes a reality. You may conclude that you cannot do worse at a Hearing, and in fact, you may fare much better at the Hearing. It depends on the issue and your view of how you can defend yourself if there is a Hearing. The matters I deal with usually appear in the following categories: criminal convictions for drunk driving, insurance fraud, assault, etc; boundary issues with patients or staff; improper prescribing of narcotics; substance abuse; the selling of medications; HIPAA violations and repeated examples of incompetent medical practice.
Of course, there are other matters, but these probably cover about 80% of the areas that I see in my practice. You have to think about the type of offense you are being charged with, the quality of the evidence against you and the quality of the defense you might be able to muster. Then, you have to decide whether it is reasonable to risk putting your career on the line at a Hearing, and if the result of the Consent Order that is being offered to you will be so harmful that you will be actually put out of practice by agreeing to the Order.
This decision is a massive one, and it can forever alter your medical career. Therefore, you should very carefully and forthrightly discuss the pros and cons with your attorney and others who will be impacted by your decision. The first issue, of course, is to be aware of the possible ramifications of settling the case with OPMC and then you balance those problems with the possible results of a Hearing. Make this decision carefully and with a clear understanding of the implications.
