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Does Governor Pataki Oppose Patient
Rights to Choose Medical Treatment
and their Type of Physician?

Does He Oppose Basic Legal Rights For
Cutting-Edge Physicians?

**********

New York bills to limit due process
abuse by the OPMC
vetoed by Governor Pataki

Marcus A. Cohen

Last December, George E. Pataki, Governor of New York, vetoed bills passed by the Legislature during the 2004 session that would have safeguarded the due process rights of physicians investigated and charged with misconduct by the Office of Professional Medical Conduct (OPMC).

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"When the government fears the people, you have liberty. When the people fear the government, you have tyranny."
Thomas Jefferson

In his veto message, Governor Pataki acknowledged that these bills, passed by the Assembly and Senate, represented "a well-intentioned attempt to respond to what some licensees and patients perceive to be a bias" on the part of the Board for Professional Medical Conduct (BPMC) and the OPMC against complementary and alternative medicine; i.e., CAM. (The BPMC serves as the pool of physicians and laypersons that sit on the panels hearing OPMC cases.)

The Governor based his decision not to sign the bills into law on "considerable opposition ... from a broad spectrum of interested parties." He named, among other opponents, the Medical Society of the State of New York, the New York State Trial Lawyers Association, and "various patient advocates." (Note that his veto message did not refer to these "patient advocates" by name.)

Proponents of health-care reform are regrouping for another attempt to pass health-care reform bills in the 2005 legislative session. Their analysis of the briefs and letters submitted to Governor Pataki, urging him not to sign, found significant variation in specific objections to the 2004 bills, with different opponents objecting to certain provisions but not others.

With this in mind, the proponents are considering less comprehensive changes in the manner in which physicians are investigated and tried by the OPMC and BPMC. They plan on concentrating in the upcoming legislative session on reforms that raised lesser objections among the opposing parties, most of whom voiced concern that wholesale change would, as the Governor's veto message put it, "result in unnecessary and inappropriate delays in the process of disciplining medical professionals."

Provisions of the Vetoed 2004 OPMC Due Process Reform Bills

In a preamble of sorts to his veto message, the Governor summarized the major provisions of the 2004 bills:

  • Require the immediate disclosure of information that could show that a doctor under investigation or trial had not engaged in unprofessional medical conduct.
  • Require an investigatory committee to agree not only that a hearing is necessary, but also on the specific nature of the alleged misconduct and the grounds for charges.
  • Limit the ability of the BPMC to conduct a comprehensive review of an MD's
  • Provide that charges must be served 40 days before a hearing (rather than 20 days), in cases where the physician's license has not been summarily suspended.
  • Make various changes in the timing of hearings.
  • Grant physicians the right to an informal settlement conference, and require the health commissioner to approve proposed settlements meeting certain criteria.
  • Set a statutory standard for qualifying experts consulted in disciplinary proceedings; also, impose new requirements for disclosing the identity and reports of such experts.
  • Provide that the testimony of a duly-qualified expert will suffice to establish medical and scientific publications as reliable authorities.
  • Exclude providers of health-care services other than MDs from serving on investigative and hearing panels.
  • Require the BPMC to make its best efforts to assure that appointment of members to such panels is done on a rotating basis.
  • Provide that rulings by an administrative officer may be immediately appealed to a senior administrative officer prior to an appeal to an administrative review board ARB.
  • Provide, if an ARB disagrees with the dismissal of a charge, that the ARB must remand the matter for reconsideration or a new hearing which is not subject to appeal.
  • Authorize an MD who has been disciplined to reopen a matter based on newly-found factual, medical, or scientific evidence--if the new evidence appears likely to change the result.
  • Permit a consumer treated by a physician to file a written statement with the OPMC or BPMC regarding a charge against the physician if the physician has given that consumer treatment that is the subject of the charge.

As Governor Pataki observed in his veto message, the package of OPMC reforms in the 2004 bills was indeed "comprehensive" and "far-reaching," containing provisions likely to stir opposition among various parties worried that enactment of the whole package might further complicate and encumber the OPMC's disciplinary process.

In this connection, it's worth recalling the recent testimony of two organizations that criticized the OPMC for failing in numerous ways to afford due process. In an Assembly hearing at the end of January 2002, spokesmen for the New York State Bar Association (the Health Law Section), and the Association of American Physicians and Surgeons recommended most of the procedural modifications proposed in the vetoed package. (See my report on this hearing in April 2002 issue for specifics.)

Regarding the "broad spectrum of interested parties" (Pataki's veto message), which opposed portions of the 2004 bills: The parties supporting the OPMC reform bills constituted a diverse coalition too--among the most vocal; groups representing patients and providers of CAM, patients with persistent Lyme disease, law and medical associations, and at least one county-wide citizen-group spurred to defend a locally-respected mainstream physician whose license the OPMC revoked for reasons believed spurious by this group.

The veto of the 2004 OPMC reform package leaves this "counter-spectrum" of proponents with the pragmatic task of trying to arrive at a consensus with opponents on which reforms are doable during this year's legislative session. In the meantime, the due process abuse attested to in the 2002 Assembly hearing will continue to hover like a pall over OPMC proceedings.

This is not merely a problem of perceived biases against certain medical approaches, as Governor Pataki viewed it in his veto message. Its ultimate effect will be to deprive New Yorkers of therapeutic options in cases resistant to conventional care, where the OPMC revokes the licenses of MDs who provide beneficial treatment that departs, in the OPMC's eye, from community practice (the OPMC's prime standard for determining unprofessional medical conduct). New Yorkers with cancer and chronic Lyme in particular will have a distressing time finding effective treatment beyond mainstream medicine, unless they go outside the Empire State.

Cancer is now the number 1 killer of Americans under 75 years of age. Further, as a recent article in Fortune revealed (3/22/04), despite new approaches and therapies, there has been little improvement in the cancer death rates since 1950.

The diagnosis and treatment of long-term Lyme disease remains enmeshed in a dispute over appropriate care, with the OPMC (and sister State medical boards) prosecuting the minority of Lyme physicians who offer long-term antibiotic care. One advocate for chronic Lyme patients told this columnist that a few of these patients, immediately upon hearing of Governor Pataki's veto of the 2004 OPMC reform bills, fearing renewed prosecution of their doctors, felt like committing suicide.

Several physicians charged with misconduct have turned to the Federal Court to obtain Constitutional guarantees of a fair trial, denied them by alleged abuse of due process by the OPMC and other state disciplinary boards. My next column will report on these suits. That column will also update the situation with Dr. Jennifer Daniels, the subject of my first Townsend column in early 2004.

by Marcus A. Cohen
8 East 96th Street #1C
New York, New York 10128 212-427-0707
Fax 212-348-8288
marcusacohen@aol.com
COPYRIGHT 2005 The Townsend Letter Group
COPYRIGHT 2005 Gale Group



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