The practice of medicine is perhaps one of the most mentally, as well as physically demanding and challenging of professional endeavors. Patients are today more sophisticated and knowledgeable about their own bodies and medical conditions, and thus present more burdensome demands on a doctor’s time. Government regulations on everything from fees, record keeping, as well as licensure, and the ultimate watch-dog, the tort system, dilute the satisfaction and fulfillment that should come from patient care. If you are a doctor, keeping up with changing medical care standards and good intentions may not be enough to satisfy acceptable standards of professional conduct. It behooves the doctor to be aware of the fact that under New York law (Education Law §6530), there are 48 “Definitions of professional misconduct.” Section 6531 has an “additional definition” dealing with fee splitting making in all 48.
Many of the no-no’s in medical practice under the statute are obvious. For example, conviction of a crime, illegal use of controlled substances, denying care to someone because of race, color or ethnicity, being a habitual abuser of alcohol or narcotics are all reasons for disciplinary action against a physician. But some others should give pause and reflection because they are more ambiguous and subject to interpretation.
For example, a strict interpretation of #3, “practicing the profession with negligence on more than one occasion” makes a physician who has been sued for malpractice in even only one case, potentially vulnerable to discipline by the Office of Professional Medical Conduct, if the one case shows “negligence on more than one occasion” during treatment of the patient. And who amongst us is oblivious to the plethora of self-aggrandizing advertisements for medical care. Cosmetic medicine advertisements in particular seem to routinely skirt the bounds of propriety, at least as far as definition #27 which governs the permissible bounds of advertising. If it is “flamboyant”, it is “not in the public interest” and therefore, impermissible professional conduct. “Testimonials” are also “not in the public interest.”
Other potential pitfalls which can jeopardize a medical license include “willful” failure to report another doctor’s unprofessional conduct as required under Public Health law §230(ii), fee sharing, sharing fees in exchange for facilities use, moral unfitness, failing to make copies of patient records upon the patient’s request and payment of the records, delegating responsibilities to a person not qualified to carry them out, “willfully” intimidating a patient verbally, failing to maintain accurate patient records, ordering excessive tests, in surgery failing to disclose to the patient the identities of all involved physicians, performing professional responsibilities you should know you are not competent to perform, and many more.
These definitions of professional misconduct can jeopardize a license. They give reason for pause and reflection because some conflict with the perception that well- intentioned doctors have of what is right and wrong. Regardless, the law defining professional misconduct is very detailed, it is on the books, and should be a template for how to properly guide the doctor’s professional conduct. For the lawyer defending a doctor from charges of professional misconduct lodged by the Office of Professional Conduct, Sections 6530 and 6531 of the Education Law, and §230 of the Public Health Law are at the heart of such cases. For the medical malpractice lawyer, there are golden nuggets for enlarging upon the customary Bill of Particulars and Requests to charge at the time of trial.
Irving O. Farber, Esq.