There are many reasons a doctor may face medical misconduct proceedings, one of which is being convicted of a crime. As a potential collateral consequence for criminal convictions, the possibility of losing your medical license is one of the most severe. Unlike criminal cases, in which the state must prove their case against you beyond a reasonable doubt, the burden of proof in a disciplinary hearing is lower and is by a preponderance of the evidence, the standard that is used in civil cases. Besides criminal convictions, there are 42 other grounds for a possible finding of misconduct and varying levels of penalties. With the stakes being so high, it may be important for you to seek help when you learn that you are being investigated for medical misconduct.
The OPMC and Investigations of Medical Misconduct
In New York, allegations of medical misconduct are investigated and prosecuted by the Office of Professional Medical Conduct, or OPMC. This body acts according to the statute under which it was created and granted authority, New York Public Health Law § 230 et seq. The investigators of the OPMC are nurses, doctors, healthcare professionals and people who come from backgrounds in investigation, such as former law enforcement officers. When a complaint is made to the OPMC, the agency is required to investigate. Any person is able to make a complaint, including former patients, hospitals and others.
When the OPMC receives a complaint, they must investigate the circumstances. Even frivolous complaints will be investigated on at least a cursory level. If the OPMC investigators believe there may be some valid basis to the complaint, the OPMC sends a notice to the doctor who is being investigated. They are then allowed to respond with evidence of their own. The OPMC may make the doctor submit to a competency exam if the OPMC believes the physician may have practiced medicine incompetently. The results of the exam will be sent to the doctor and the OPMC. The doctor is allowed to seek an exam from an accredited institution on their own as well. If the OPMC believes the licensee may be guilty of medical misconduct, they will be charged with it under New York Education Law § 6530, which lists all of the different types of actions that are deemed to be medical misconduct in the state. A hearing will be set before the committee, and the doctor may be represented by legal counsel.
Criminal Convictions and Misconduct Hearings
If the reason for the OPMC referral is a criminal conviction, the licensee will go through an expedited process. New York Education Law § 6530(9)(a) specifically states that a conviction for a crime under New York law, federal law or any other jurisdiction if the conduct would have been a crime in New York, is medical misconduct. The expedited proceeding is specifically authorized under New York Public Health Law § 230(12)(b) when the physician’s conviction is a felony. If the conviction occurred outside of the state, a full hearing process will instead be used as the doctor may challenge whether that conviction would be a crime if committed in New York. Upon receiving notice of the conviction and prior to the hearing, the OPMC may issue an order of summary suspension that directs the physician immediately halt their practice of medicine until their hearing.
The hearing must be scheduled within 90 days of when the doctor was served with the notice of their summary suspension. While all felony convictions may lead to the physician’s losing their license regardless of whether the felony had to do with the doctor’s practice of medicine, certain misdemeanor convictions may as well. The OPMC may seek to revoke a doctor’s license if the underlying conduct of the misdemeanor conviction is related to other areas that are considered to be misconduct, such as sexual relations with a patient or other assorted misdemeanor crimes.
The Burden of Proof at the OPMC Hearing
At the hearing, the investigators will be required to prove the misconduct by a preponderance of the evidence. This standard is lower than that in criminal cases and means that they will have to show that it is more likely than not to have occurred. That burden is relegated only to those physicians who face full hearings. For those who have been convicted of a felony and who were referred for the expedited hearing, the investigators will not need to prove the misconduct happened by a preponderance of the evidence. This is because the doctor, upon their conviction, was already proven guilty by the higher burden of proof of beyond a reasonable doubt in criminal court, and a felony conviction is specifically delineated as medical misconduct under the law. Instead, the expedited hearing will concern the type of punishment the doctor should receive for their conviction.
Plea and Allocution in a Criminal Case
If you have been charged with a crime, it is important that you discuss the potential collateral consequences of your medical license with your attorney. Unlike with attorneys facing disbarment for felony convictions, a doctor will not automatically lose their license if they are convicted of a felony. However, the stakes are very high and revocation is likely, so care must be taken when considering any plea in your criminal case. If you do plead guilty to a felony, it is also important that you are careful during your allocution, which is when you enter your plea in criminal court. You should refrain from making statements that effectively box you in with your OPMC hearing, such as that you will lose your license.
Possible Sanctions and Penalties
The possible sanctions and penalties for medical misconduct depend upon what type of misconduct the person is found guilty of. If a person is not found guilty of misconduct but is found to have committed a technical violation, they may receive an administrative warning. These are not published anywhere and simply provide information for remediation.
If they are found guilty of medical misconduct, the least severe sanction is censure, which is published and may require the doctor to complete community service hours and attend continuing medical education courses. The doctor may also be placed on probation, during which time their ability to practice medicine will be limited. The next most severe penalty is a license suspension, which may be for a set period or indefinitely. Finally, the physician may have their license revoked and be forever prevented from practicing medicine. If the misconduct is found to be especially egregious, the doctor may also be fined $10,000 for each identified violation.
Why a Medical License Defense Attorney Is Important
If you are facing a medical misconduct hearing, it may be advisable for you to seek help from a medical license defense attorney. If the type of misconduct for which you’ve been charged is not a felony, they may call witnesses to testify on your behalf, present evidence and cross-examine the witnesses called to testify against you at your full hearing. If you are facing an expedited hearing, your attorney may still present mitigating evidence to try to obtain a lesser penalty than license revocation. In this way, you may be able to save your medical license so you can move forward with your life.