ASSEMBLYMAN GOTTFRIED: Okay. We are going to begin.

(Whereupon at 5:22 P.M. the State Assembly Hearing on Disciplinary Process of Physicians and Physicians Assistants was reconvened.)

ASSEMBLYMAN GOTTFRIED: Dr. Cheng and I just had an interesting discussion about the Mandarin versus Cantonese pronunciation. So it is Dr. Andrew Cheng, President Elect of the New York County Medical Society.

DR. CHENG: Do I have to be sworn in?

ASSEMBLYMAN GOTTFRIED: Yes that is all routine.

DR. CHENG: Good afternoon ladies and gentleman and Assemblyman Gottfried. I am Dr. Andrew Cheng. I practice in New York City and specialize in ear, nose and throat surgery. I am the President elect of The New York County Medical Society and I thank you for the opportunity to make these comments on the New York State Office of Professional Medical Conduct.

Two years ago, I served as a consultant to the OPMC as an ENT practitioner reviewing a disciplinary action case. The case of a Manhattan physician who allegedly performed unnecessary surgery. I had a chance to see the OPMC process up close. In many ways the process was very impressive. It was careful, step by step and fair. Through the years The New York County Medical Society, the Medical Society of the State of New York and all the physicians of New York State have supported the OPMC disciplinary process. We believe this process is necessary in order to uphold the integrity of the medical profession. It is clear that the OPMC winnows out the complaints that are brought to it and handles only those that it believes have real merit. Physicians are given a thoughtful hearing. And if further action is warranted the OPMC has a range of options. Some physicians are suspended, some lost their licenses, but with other physicians those actions are not felt to be necessary. These other physicians can be directed to educational programs instead.

I would however like to make a couple of suggestions.

One the role of medical society in assisting OPMC procedures. At one time peer review committees of medical societies did assist the OPMC by performing an educational intervention function. In 1991 the law was passed allowing members of peer review committees of county medical societies to be called upon to interview physicians in a non-punitive confidential interview. The New York County Medical Society's Executive Committee of Peer Review used to be called in to assist with cases that the OPMC's board had determined were sometimes not serious enough to require a hearing, but still required a consultation. The involved physician would meet face to face with Medical Society's Peer Review Committee to discuss the divergence from acceptable medical practice. In the Medical Society's experience, these meetings appeared to be successful in communicating the problem and provide the physician involved with suggestions for how to solve it.

However, since 1997 we have been not called upon to offer these services. But we do advocate that organized medicine become more active in providing assistance to the OPMC in the future. Talking with the peer review committee of a medical society can be appealing to the physician who is under investigation. His peers, practicing physicians understand the pressure of his everyday work and are able to measure his actions against the current standard of medical practice. Take no wrong I do not take any sanctions for any of the bad apples among us.

Two, misuse of the OPMC procedures by managed care organizations and insurance companies. I am aware of more than a few occasions on which managed care organizations or health insurance companies which are involved in sometimes billing or business disputes with physicians have threatened or actually did report physicians to the OPMC. The companies allege that the physician has committed fraud when the evidence may not clearly support such allegation. The evidence may merely indicate a dispute over billing or other business matters between two parties to a contract. Fraud, on the other hand means the physician would have had to knowingly and intentionally misinformed or defraud the insurer.

Some physicians however are intimidated by the tone of the allegation and accede to the insurance company's demands most of the time are just hand over big chunk of money to them. Sometimes even these demands may actually be unreasonable. Other physicians while they may not be intimidated may simply believe they do not have enough resource to permit the case to go through the full OPMC process. So they give in to the insurance company's demands. If the physician indeed chooses to continue the dispute he or she must go through a complicated process of being a subject of an intense investigation and review.

I believe that such threats and actions are a misuse of the OPMC and its disciplinary process. I strongly advocate that these type of conducts should be discouraged or forbidden.

In conclusion I speak on behalf of the members of the New York County Medical Society and in general most physicians in the state of New York. We support OPMC and the necessary disciplinary process and we would like to continue to work to improve the process. To help OPMC to streamline, to minimize delay and allow due process and proper representation of all phases of all investigation. Lastly I strongly oppose the misuse of the OPMC and its disciplinary procedures in what are clear cut business disputes.

I would be happy to answer any questions. If there are any members of the public who would like to talk with me or any members of the County Medical Society, we do have grievance committee that can answer and help the public in general. I feel that that service has been underutilized. The public should feel free to call us at 212-684-4670 at County Medical Society. We do have dedicated staff and dedicated physicians to try to resolve the problems.

Thank you very much.

ASSEMBLYMAN GOTTFRIED: Okay. John Hallowell.

MR. HALLOWELL: Good afternoon. My name is John Hallowell. I am the Chief Physician Assistant in Community Hospital in Long Island and Government Affairs Chair of the New York State Society of Physician Assistants. On behalf of the New York State Society of Physician Assistants I would like to thank you for the opportunity to speak today. The New York State Society of Physician Assistants is the sole professional organization representing over 6,000 registered and licensed physician assistants in New York State. Our mission statement is to provide outstanding care to our patients, to improve the quality of care and to promote address and represent the interests and development of the PA profession in New York State.

The New York State Society of Physician Assistants endorses professional discipline and the sanctioning of medical providers that fail to meet the standards of their profession. PA's have always prided ourselves on providing competent and compassionate care to the residents of New York State. Regulating the profession is fundamental to maintaining that tradition. We believe that peer review and due process are necessary components of any professional disciplinary process.

The disciplinary process of physicians and physician assistants must number one, above all, protect patients from injury or continued harm. Number two be fair and expeditious. Number three be periodically reviewed. Number four include physician assistants in peer review.

We would like to take this opportunity to applaud the efforts of both the Office of Professional Medical Conduct and the Board for Professional Medical Conduct as we acknowledge the national recognition they have achieved over the last few years and the progress they have made in streamlining the disciplinary process. We also approve the efforts of the State Assembly in providing information about physicians and physician assistants via a website.

As a professional state society we have not been privy to the internal procedures utilized by the Office of Professional Medical Conduct in investigating and adjudicating cases, and therefore will not specifically address all of the questions posed within the Notice of Public Hearing. The process as laid out in Public health Law Section 230 seems generally fair. There are however several glaring omissions that deeply concern the physician assistants of this state.

Public Health Law Section 230 sets forth that the Board for Professional Medical Conduct comprise at least eighteen physicians of which at least two utilize non-conventional modalities, at least two doctors of osteopathy, and at least seven lay members. The statute provides the investigation and adjudication as appropriate of physicians, physician assistants, specialist assistants and unlicensed medical assistants in this disciplinary process but it is silent as to the mandated membership of physician assistants on the board. Unlike the minimum requirements for physicians and lay members there is no statutory verbiage regarding physician assistants.

In the late 1980's the New York State Society of Physician Assistants noted the lack of representation of physician assistants on the Board of Professional Misconduct. A small number of PA's were appointed to the Board of Professional Medical Misconduct and for the lack of statutory guidance were appointed as lay members. Although this was not considered optimal representation by the profession, the society was pleased to have any representation. It has been our understanding that when the BPMC hears a case involving a PA respondent there has been every effort made to have a PA be the lay member on the hearing panel. Within the given statutory confines, we appreciate the due process that the OPMC and the BPNC have given to our profession.

However as this hearing is an opportunity to examine the process of the current disciplinary system for physicians and physician assistants, the New York State Society of Physician Assistants strongly supports statutory reform to provide for at least a minimum number of physician assistants on the BPMC and that they be afforded "medical professional" membership status. It is unreasonable to expect our profession to continue to accept the lay classification as we are medical professionals being disciplined by the same body as our physician colleagues. Under the current system we believe not only is there inadequate peer review but also no true public notice when a PA is the respondent in a BPMC hearing.

Realizing the logistical concerns involved in any major statutory change, the society is of the opinion that changing the membership classifications from physician and lay to medical professional and lay would be the most obvious current resolution of this dilemma. This medical professional category would encompass both physician and physician assistant members. Certainly the society would be amendable to dialogue with the interested parties on implementation of any legislative changes, policies or procedures concerning PA discipline or practice.

In some response it was brought earlier, there have been many very favorable suggestions. The main thing is we request adequate peer review. We would not be initially on favor of any non OPMC medical professionals on this unless OPMC professionals can sit on other discipline procedure boards.

The New York State Society of Physician Assistants would also like to ensure that physician assistants continue to ascend into leadership roles of the BPMC, the Administrative Review Board, and the variety of committees and sub-committees chosen by the Chair. The current statue reads that only a physician may be Chair of the BPMC, and traditionally a layperson is made Vice Chair. If the classification changes from physician to medical professional language must created to ensure that a PA may be placed into either of these leadership roles. A similar situation exists with the Administrative Review Board. Currently it is comprised of three physicians and two lay members. The language would also have to be changed to allow PA's to be included as a medical professional member.

Regarding whether the original complaint should be made available to the licensee for rebuttal, the society is of the opinion that this could speed up the current process. However, the society is concerned that unless this is done in a way that assures the privacy of the complainant, this may thwart the introduction of appropriate reports thereby jeopardizing the public welfare entrusted to professional discipline. Our understanding is that a licensee is afforded an interview when there are issues of clinical practice. This appears reasonable. The hearing process itself seems the appropriate mechanism for discerning malice, if present, that has not been uncovered prior.

Regarding the investigative process, the New York State Society of Physician Assistants is aware that current statute requires all complaints be investigated. We endorse the OPMC's timely resolution of cases that do not warrant presentation to an investigative committee, as well as the utilization of consent orders. These policies are considerate of the need for both the public and the licensee to have an expeditious and fair resolution. We also commend the use of non-disciplinary administrative warnings in encouraging a licensee to improve his or her practice when there is no prosecutable deficiency, but still potential concern. The New York State Society of Physician Assistants is also supportive of the OPMC's use of retraining as a penalty option when appropriate and we applaud the OPMC's pioneering work in this area.

The society feels that a public hearing would lengthen an already lengthy process and again can jeopardize the privacy of non-complainant patients. The society also feels that notification of non-complainants of the use of their record has its merits, however it could potentially lead to the initiation of malpractice proceedings against the provider when none was initiated previously.

When the initial physician assistant legislation was created in 1972 it was apparent that the legislature envisioned some discussion between the DOH and a body representing physician assistants as part of the health care team. Especially when matters of PA scope of practice and other issues are entertained. And, an Advisory Council on Physician Assistants was created as noted in Public Health Law Section 3702. To our knowledge this Advisory Council is no longer in existence. Along with making the above statutory changes the legislature may want to consider reestablishing an Advisory Council on Physician Assistants.

We believe that our concerns can and will be addressed through collaboration with the Departments of Health and Education and that the spirit of our enabling legislation will be embraced to allow physician assistants to continue to deliver accessible, high quality, cost effective health care as part of the physician physician assistant team to all New York State residents. Peer review and due process are the backbone of the professional medical conduct system in New York and we trust that they will be ensured for the physicians and physician assistants of this state.

The New York State Society of Physician Assistants again thanks you for allowing us to testify today and for your consideration of our concerns in these matters. Thank you.

ASSEMBLYMAN GOTTFRIED: Than you very much. Andy Schlafly, American Association of Physicians and Surgeons.

MR. SCHLAFLY: Good afternoon. Thank you for this opportunity to testify. I am Andy Schlafly, General Counsel for the Association of American Physicians and Surgeons also known as AAPS. I am a member of the New York Bar, and specialize in administrative law.

Our organization AAPS is a nonprofit national group of thousands of physicians including many practicing in New York. We were founded in 1943. We file amicus briefs in defense of physicians who are unfairly treated in disciplinary proceedings as in the case of Dr. Dan Alexander v. The New York BPMC.

I want to depart from my written testimony for a minute and address a few of the comments that arose earlier today. I was particularly surprised and really shocked that the OPMC does not select the panel for its hearing committees in a random fashion. This is startling to an attorney because when we go before a court, a court of appeals anyone in the judiciary, a judicator who is provided to us is always selected in a random manner. In District Court they spin a wheel to pick the judge who is going to sit on your case. When you before the Court of Appeals and you get a three judge panel, in Federal Court for example there is a very careful and computer generated typically random process for picking those adjudicators. That keeps corruption out of the system.

Apparently the OPMC does not do that. There is somebody in that bureaucracy or maybe a few people who select the decision makers to sit on these cases and its inevitable that there is going to be bias that creeps into that process. I would urge you to write into the statute that the adjudicators in these cases have to be selected pursuant to a random process.

The second thing that surprised me today was to hear at least one testifier oppose improving the due process in the system. It doesn't matter who the adjudicators are if the due process is defective. You can have the smartest person in the world, the fairest person in the world but if he's getting an incomplete picture of the evidence he is going to decide the wrong way.

The due process that is used in these proceedings is very primitive. Very susceptible manipulation by insurance companies or managed care groups. There is no guarantee that the full story is going to get before those decision makers before the hearing committee. That is a real problem. Because of that managed care organizations, insurance companies are better off trying to delicense a physician than to go into court where they do face the full panoply of due process protection and they have to really show the full facts to a jury.

I mean there has been a lot of talk today about having more lay people sit on the hearing committee because we have that on jury's. If lay people can sit on jury's why can't they sit on the hearing committee? Well that's true but in the legal system we have full due process so that the lay jury hears all of the evidence and the rights of both sides are fully protected. We don't have that in these OPMC proceedings.

A lot of key elements of due process that are missing. For example the physician does not always get meaningful prior notice of the charges against him including the witnesses who are going to testify against him. You do get that in a legal proceeding that goes before a jury. A physician does not have the right to open up the proceeding to the public. I think that's an important reform that a physician should have particularly in these Lyme Disease cases.

Or a physician at his option could open up the proceeding to the public so that we can get public scrutiny of what's going on. We do have that in legal proceedings. A physician does not have the full right to cross examine witnesses.

In the Dan Alexander case that we were involved in the administrative law judge terminated the cross examination on several key issues in the case depriving the hearing committee of hearing all the evidence and the facts. We shouldn't have that. You don't have that in legal proceedings. When someone goes up and takes the witness stand against the defendant the attorney for that defendant gets full rights to cross examine that witness and bring out evidence of past convictions for example, can impeach that witness, can get all the evidence out there for the lay jury to analyze. We should have that in these OPMC proceedings.

Often times we see that a decision that comes out against a physician goes beyond the evidence that was in the record. That is another violation of due process. Decisions should only be based on what's in the record. Sometimes we see that the hearing committee will try to psychoanalyze the physician and say well he -- in one case that we handled I will give you a quote of what the hearing committee said. The hearing committee decided that the physician had "deep seeded psychological problem." There is nothing in the record to support that. They were just making this stuff up. This is a violation of due process.

Getting review of these decisions is another problem. It's a basic due process right to have the right to a meaningful appeal. We don't really have that in these disciplinary proceedings. When a decision goes against a physician and then we go into the Appellate Division of the State of New York there is extreme difference shown.

I think one of the earlier witnesses today testified that there is case law that says because there was an expert, whenever there is an expert involved in one of these hearings the courts will automatically defer to that expert. That's what we see.

I would be interested if there are any statistics as to when the New York courts have ever overturned some of these decisions by the OPMC. I haven't seen it. That's in contrast to other states. In Pennsylvania, next door, the courts frequently overturn the decisions of the disciplinary committees.

I think its worth looking at reform of how these decisions are reviewed and maybe strengthening the review on appeal and maybe calling for de novo review of certain issues and certain factual issues particularly when the hearing committee goes outside of the record in deciding against a physician.

The most important reform though that I am here to recommend today is that I think the burden of proof should be looked at. Currently the OPMC uses a preponderance of evidence standard in deciding whether to revoke a physicians license. That means that they simply look to see whether there is a 51% probability that the physician engaged in misconduct. That is too low of a standard. We see decisions where the hearing committee has actually said that. They said well we've heard testimony on both sides and we think there is a 51% probability and maybe not anymore than that the physician engaged in wrongdoing therefore we are going to revoke his license. That's shocking.

In civil cases, in cases of fraud for example the proof has to be clear and convincing evidence. It has to be more than 51%. The reason is because if there is a 49% chance that the physician didn't do anything wrong he shouldn't lose his license for the rest of his life. There shouldn't be thousands of patients who are deprived of their doctor when there is a 49% chance that the physician didn't do anything wrong.

I urge you to consider increasing the burden of proof for preponderance of the evidence to clear and convincing evidence. It's still lower than the criminal standard of beyond reasonable doubt but its' the standard that is used in many civil cases such as cases in fraud. It has to be clear and convincing proof that someone defrauded someone else before there can be a verdict in favor of the plaintiff.

Another thing that I heard earlier today that surprised me was there was a witness who testified that patients should be notified when their physician has a charge against him and even the patient who has complained against the physician should be notified of whether there has been a restriction of that physician's ability to practice medicine. I don't quite understand that. If a patient complains about a physician and then continues to see the physician I don't understand why that complaint should be taken seriously. There should be a presumption when a patient continues to see the physician that the patient is happy with the physician. There may be other reasons to look into what the physician is doing. But the patient's own complaint should be discounted if that patient continues to see that physician.

In one of the cases that we got involved with in the case of Dan Alexander, a patient who provided some of the most incriminating testimony against the physician continued to take his family, her family to see that physician after the alleged incident occurred. That really deprives the credibility of he allegations. I don't know why the OPMC is revoking physicians licenses based on a patients complaint when that patient and the patient's family continues to see the physician. It doesn't make any sense to me.

Finally I think there needs to be greater discovery rights by the physicians with respect to the experts and the hearing committee members. If you get into civil litigation the litigants have discovery rights. They can inquire into the evidence against them. They can depose people who are going to testify against them. They can get all the records beforehand, before the trail so they are not ambushed by surprise evidence. There should be discovery rights in these disciplinary proceedings as well. One of the things that are going to come out if physicians have stronger discovery rights is they will be able to uncover the conflicts of interest that create bias in the proceedings.

If there is an expert who is going to come in and testify against that physician that physician can get discovery rights on that expert beforehand. The physician will be able to uncover whether there is a conflict of interest that is rally driving this. Whether there is an insurance company behind it for example. I think in other states they do have some limited discovery that enable physicians to weed out the bias and the conflict of the interest that undermine the integrity of the proceeding.

In conclusion the Association of American Physicians and Surgeons opposes the intimidation of physicians through deprivation of their rights at disciplinary proceedings. This interference destroys the integrity of the patient physician relationship and the ethical practice of medicine. Please consider the reforms that the AAPS suggests and that others have suggested at this hearing.

Thank you again for inviting me.

ASSEMBLYMAN GOTTFRIED: Question for Mr. Schafley. You referred in the Alexander case to cross examination having been curtailed. Can you tell me a little in what way it was?

MR. SCHLAFLY: In several critical respects and the problem is that the Administrative Law Judge the ALJ has broad discretion to cut off questioning. That's in contrast to real trials where the rules of evidence governs and the accused gets almost unlimited cross examination rights. What happened in the Dr. Alexander case was there was a malpractice attorney who had talked to a number of the witnesses who came forward and then testified against the doctor. We really feel it was driven by a malpractice attorney. It then got into the media and we feel that some of the allegations were insided by either the attorney or the media reports.

However, upon cross examination of these witnesses who were accusing the doctor, the ALJ cut off questioning related to how these witnesses decided to come forward and who they talked to before they came forward with their complaints. That was really critical to the case.

He cut it off in another respect too because there was an allegation of sexual misconduct. One of the questions had to do with whether the witness had raised allegations of sexual abuse by other people in the past and the ALJ cut that off. Where as in a real court of law there would be broad likes of cross examination by an accused.

ASSEMBLYMAN GOTTFRIED: Ordinarily in proceedings where there is statutory language that talks about the proceeding not being bound by the rules of evidence that usually is applied to let more things in on the theory I suppose that all those silly technical rules that lawyers learned in law school are all designed to keep things out. That's all in quotes in case anyone is interested. Sounds like at least in this particular case the lack of being restrained by the rules of evidence worked in the opposite direction?

MR. SCHLAFLY: That's right.

ASSEMBLYMAN GOTTFRIED: Okay. Questions?

ASSEMBLYMAN MILLER: What you said was pretty good.

ASSEMBLYMAN GOTTFRIED: Okay. Thank you very much.

MR. SCHLAFLY: Thank you.

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