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New York Physician Misconduct Bill Now Law

Aug 8, 2008 | Parker Waichman Alonso LLP

Under a bill that was just signed into law yesterday by New York Governor David A. Paterson, physicians who are charged with misconduct or malpractice can now be publicly identified.  Also as part of the law, the state Department of Health will now have new powers to investigate medical wrongdoing.

Legislators said the law, just one among 35 others signed by Paterson, was prompted by the Dix Hills Doctor, Harvey Finkelstein.  The Department of Health accused of Finkelstein of reusing syringes and infecting at least one patient in 2004; Finkelstein also failed to alert the general public until November.
  Finkelstein most recently settled a malpractice lawsuit with a Syosset man who claimed he contracted hepatitis C in Finkelstein’s office.  Unbelievably, Finkelstein has settled an unprecedented 11 malpractice lawsuits inside of a decade.  Although Paterson did not mentioned Finkelstein directly when drafting the bill, he did refer to the "case of the Long Island doctor who became very dangerous to the public."  Senator Kemp Hannon (Republican-Garden City), chairman of the Senate health committee, said the bill was created "100 percent because of Finkelstein."  The Finkelstein case and its many challenges provided a basis for what the health department needed to conduct better disciplinary and infectious disease investigations, said state Health Commissioner Dr. Richard Daines.  Finkelstein was also accused of reusing syringes on the same patient, but with medicine vials used on multiple patients, increasing the risk of infection

Lawmakers say that the issues the new law addresses transcend the Finkelstein case.  The new law expands the state's scope into private medical offices, which will permit health authorities more freedom in communicating with the public and in ensuring appropriate physician discipline.

"The theme we took was patient safety. It wasn't aimed at just Finkelstein," said Hannon, the bill’s sponsor.  Most significanty, legislators said that the bill allows the state Office of Professional Medical Conduct to use medical malpractice histories to initiate misconduct probes.

Finkelstein has had 11 malpractice payouts in the last decade, one of the highest numbers in the state.  Also, physicians charged with misconduct by the medical conduct office may now be publicly named if the committee is unanimous in charging the doctor, something not currently done.  Also, in the past, charges against physicians remained private until proven and the Medical Society of New York opposed naming doctors and using malpractice histories for investigations.

Now, the state can secure the medical records of those doctors suspected due to alcohol or drug abuse, the Health Department has greater power in halting dangerous practices without a hearing, and office-based surgeons must now report transmissions of blood-borne diseases.

The law also mandates that the department study possible restrictions on multidose medicine vials.  Most doctors charged with misconduct by the state Health Department will have their names made public and will be permitted one day to produce those records demanded of them by investigators. Most aspects of the law take effect in 90 days.

The health department was strongly criticized by patient advocates after it was revealed it negotiated with Finkelstein for his office records, a process that helped delay public notification to over 10,000 of Finkelstein’s patients for an incredible three years.