If you are the target of a Department of Education, Office of Professional Medical Conduct, OPD, investigation, you must know how these investigations work to do your best to protect your New York State license whether you are a nurse, a podiatrist, a physical therapist or any type of health care professional other than a physician or a physician assistant.
When OPD is made aware of a complaint against you, an investigative process is set in motion. OPD first will collect evidence in the form of interviews with patients, other staff members and anyone else who might have knowledge of the issues in question. They also often are in possession of videos that may show who was in a facility and at exactly what time events occurred. In addition, they will have copies of any documents that may be applicable, some of which might have been authored by you.
After doing this phase of the investigation, OPD will invite you to an Interview with the investigator. Please do not attend this Interview without preparing for it with an attorney. It is imperative that you understand what the point of the investigation is, and how you can prepare to give the best possible presentation. Remember, your entire career can be in jeopardy and, therefore, you must be ready to defend yourself. This Interview will be recorded by OPD and you can obtain a copy of the recording. What you say in this Interview can either ruin your professional life or save it.
At the Interview, the investigator may show you parts of videos taken in a facility and the time will be visible. OPD will not give you copies of these videos before the Interview so you have to be careful that you do not make statements that are completely contradicted by the objective evidence in the videos. For example, you might state that you saw a patient at about 10:15 in the morning and that you immediately called for assistance from other staff members due to an emergency. However, the investigator can then show you the video which proves that you entered the patient’s room at 10:25 and did not call for any assistance until 10:56. As is obvious, you did not remember the timing correctly, and now it appears that you were lying to the investigator. You have to really think about these types of issues before you testify so that you do not, by mistake, state things that are clearly not accurate.
The investigator might also read portions of statements from other witnesses or play a recorded telephone conversation, perhaps a 911 call, and these pieces of evidence might help your case or harm it. In any event, you can see that you must be as prepared as possible for this Interview.
After the Interview, the investigator will present the case to a Board member to make a decision concerning the outcome of the matter. The Board member may simply say that the case should be closed without further action, and if that happens, you will no longer have to deal with it. However, the Board member may say that some type of disciplinary action should be taken. This can be the demand, for example, that you surrender your license or that you should have a suspension of your license for a period of time, typically for one, two, or three months, that your practice be monitored for a period of time, or that you should be assessed a fine and be required to take certain Continuing Education courses in a particular subject. Most types of disciplinary action will be reported on the Department website and will be reported to the National Practitioner Data Bank.
You can, of course, decide that you will not agree to the suggested disciplinary action and that will cause your case to be put in line for a formal Hearing, where a Panel will hear your case, review the evidence, take the testimony of you and other witnesses and render a decision. This is a very dangerous road to travel as you can end up with a Panel recommendation that your license be severely impacted or even revoked.
There is an intermediary step called the Informal Settlement Conference where you can attempt to settle your case on better terms without attending a formal Hearing. I will discuss the ins and outs of that process in a separate article.
The lesson to be learned here is that you truly must be prepared to attend an Interview with OPD. You really should have an experienced trial attorney help you with this process and attend the Interview with you. Your performance at the Interview can make the difference between the matter being closed without any damage to you, and having severe disciplinary action taken which can irrevocably damage your professional life.
