Partner/Director OPMC & OPD Defense Group at Abrams Fensterman
We have heard it since we were toddlers: “honesty is the best policy.” This is especially true when it comes to licensed health care professionals supplying information on licensure applications, hospital privileges/managed care applications, and/or biennial registration renewal forms. While it may seem to be “no big deal” to conveniently omit certain information or to give an inaccurate answer on such applications, the Office of Professional Medical Conduct (“OPMC”) and the Appellate Division of the SupremeCourtofNew YorkState take this type of misconduct very seriously.
The recent case of Fodera v. Danes (2011 WL 2473025)provides an example of just how serious the consequences can be. In that case the Administrative Review Board (“ARB”) of OPMC sustained charges against a vascular surgeon finding that she had committed professional misconduct as defined in New York Education Law Section 6530(21) by making false statements on her applications for privileges at two hospitals. The ARB suspended the surgeon’s license to practice medicine for two years, but stayed the suspension and placed her on probation for five years under specified terms. The surgeon then brought a court proceeding, pursuant to article 78 of New York’s Civil Practice Law and Rules, to review the determination of the ARB. The appellate court rejected the surgeon’s case and confirmed the penalty of a two year stayed suspension with five years of probation.
Staten IslandUniversityHospital (“SIUH”) sent the surgeon a notice in early February 2004 that it had summarily suspended her privileges at the hospital. On February 26, 2004 an agreement was reached between SIUH and the surgeon whereby the suspension would be held in abeyance during the hospital’s hearing and appeal process so long as the surgeon agreed not to exercise her privileges at SIUH. In March 2005 the SIUH Executive Committee notified the surgeon that it had unanimously upheld her summary suspension. The surgeon appealed to the SIUH Board of Trustees by letter dated April 5, 2005. In May 2005, while her appeal was pending, the surgeon submitted an application for reappointment to the medical staff at St. Vincent’s Hospital, answering “no” to the question “[have] your medical staff appointment or clinical privileges ever been terminated, revoked, suspended, refused, reduced, limited or not renewed in any other hospital or health care institution or is such action pending?” (emphasis added). In addition, in an application for appointment to the medical staff of Victory Memorial Hospital, submitted in March 2006, the surgeon again responded “no” to the question inquiring whether her clinical privileges at any hospital “have… ever been, or are… currently in the process of being denied, revoked, suspended, reduced, limited, placed on probation, not renewed, or voluntarily relinquished, limited or reduced?” (emphasis added).
Section 6530(21) requires a showing that one acted “willfully” in inaccurately answering such questions on an application, in order for the inaccurate answer to be considered a violation of the law, and hence, professional misconduct. In other words, one must be found to have “deliberately” provided false answers on such an application. In this case the surgeon made various arguments trying to explain, excuse or deny her actions. However, the court rejected her claims, finding that the surgeon was notified by SIUH of the summary suspension, exercised her right to a hearing, participated in the hearing with counsel, received notice that SIUH had upheld the suspension, and exercised her right to an appeal within the hospital. Given these indisputable facts, the court found the statutory requirement of “willfulness” to have been satisfied regardless of any claims to the contrary by the surgeon. The court further held that the penalty imposed of a stayed two-year suspension with probation did not shock its sense of fairness, and therefore confirmed the determination of the ARB.
With this determination we are again reminded of the childhood lesson that honesty is indeed the best policy, especially for health care professionals filling out licensure applications, privileges applications and registration renewal forms. Not only could an incorrect answer implicate professional misconduct issues, but, depending on the application, a knowingly false answer could rise to the level of criminal conduct. All such questions must be reviewed carefully before answering, and if the provider has any doubt about how to answer, advice should be sought from an experienced professional misconduct attorney.