SOMETIMES YOU CAN ACTUALLY WIN AN OPMC HEARING AFTER YOU HAVE BEEN CONVICTED OF A CRIME
We recently represented a physician who was convicted of a crime, violating a court order involving an Order of Protection, in another state. Any conviction, any felony or misdemeanor, is, by definition, unprofessional conduct and will result in The Office of Professional Medical Conduct, OPMC, seeking a punishment against the licensed New York physician.
In our case OPMC demanded that the physician agree to a Consent Order which would have carried the sanction of a Censure and Reprimand. That agreement would have resulted in a report to the National Practitioner Data Base and a public listing of the Order on the OPMC website. Without the physician’s agreement to this Consent Order, OPMC stated that a Hearing would be scheduled and the only issue to be discussed would be the type of punishment that would be meted out to the physician.
We evaluated this situation and advised the physician that the New York Education Law states that any case against a physician can be dismissed at the Hearing “in the interest of justice” if the facts so dictate. However, a dismissal at a Hearing in the face of any criminal conviction is very, very difficult to manage and there is always the risk that a Hearing Panel might hand out a sanction that is more punitive than what was offered by OPMC.
After a long discussion, our client decided to take the risk and go to the Hearing to have an opportunity of avoiding the Data Bank report and the OPMC public posting.
To prepare for the Hearing we scheduled three people to testify on behalf of the client – a physician, a nurse and a social worker. All of these people were well acquainted with the physician and all testified to the dedication and professional excellence of our client and that any sanctions the Panel might decide upon would likely have a tremendously negative impact on the client’s career. We emphasized that the criminal conviction had nothing to do with medical care and instead revolved around an unrelated personal matter and therefore punishment of the physician in this setting would be very prejudicial and would be out of proportion to the infraction.
Our client testified, as the last witness, and the testimony was, in our opinion, credible and rational. The entire issue was described and the point was driven home that any sanction at all would be a mark against the physician forever and would adversely damage employment opportunities in the future. This result, we argued, would be grossly unfair and inappropriate.
Thankfully, the Hearing Panel agreed with our position and their opinion dismissed the Charges “in the interest of justice”. The rationale was that the physician had an exemplary academic and employment record and to issue a sanction would very possibly adversely impact employment in the future. Any sanction would have been out of proportion to the underlying conduct at issue and would not benefit patient care in any way. The Panel did, of course, state that it did not condone any type of criminal conduct, but the conviction itself was punishment enough for the physician and nothing would be gained by sanctioning the physician further.
The lesson to learned from this matter is that, with the right set of facts, it is possible to go to a Hearing and make the case that the Panel should, in the interest of justice, dismiss the charges, even in the face of a criminal conviction. This takes no small degree of courage on the part of the physician along with a great deal of preparation by the lawyer.