senate Bill S4424

Provides for the reporting of medical malpractice to the office of professional medical conduct

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 05 / Apr / 2011
    • REFERRED TO HEALTH
  • 04 / Jan / 2012
    • REFERRED TO HEALTH

Summary

Provides for the reporting of medical malpractice to the office of professional medical conduct; requires the court to notify the office of professional misconduct and a physician's place or places of employment upon the filing of a felony complaint against a physician filed in this state; requires the court to notify the office of professional misconduct upon the filing of a misdemeanor complaint against a physician filed in this state.

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Bill Details

Versions:
S4424
Legislative Cycle:
2011-2012
Current Committee:
Senate Health
Law Section:
Public Health Law
Laws Affected:
Amd §230, Pub Health L; amd §§315 & 4803, Ins L; add §180.90, amd §170.10, CP L
Versions Introduced in 2009-2010 Legislative Cycle:
S3670

Sponsor Memo

BILL NUMBER:S4424

TITLE OF BILL:

An act
to amend the public health law, the insurance law, and the criminal
procedure law, in relation to requiring the reporting of medical
malpractice to the office of professional medical conduct

PURPOSE OR GENERAL IDEA OF BILL:

To more effectively hold medical professionals accountable for
egregious repetitive occurrences of unsafe, reckless, harmful, and
non-professional actions and to allow for accountability in the
medical profession for criminal behavior; to facilitate earlier
detection of patterns of unacceptable behavior by certain medical
professionals.

SUMMARY OF SPECIFIC PROVISIONS:

Adds new subsection 9-b to §230 of the Public Health Law to require
the Office of Professional Medical Conduct (OPMC) to initiate
professional misconduct proceedings against any physician who has
accrued three reports within a 5-year period, including reports
already required to be made to the OPMC in the New York Codes Rules
and Regulations.

Adds new paragraphs (3) and (4) to subsection (b) of §315 the
Insurance Law and amends other paragraphs of the same section to
require insurance companies to report any medical malpractice
dispositions against a medical professional to OPMC.

Adds a new paragraph (7) to subsection (b) of §4803 the Insurance Law
to require a managed care company or organization to report the
termination of a physician's contract to OPMC, as well as a
physician's resignation upon an internal conduct investigation.

Adds new subsection (10) to § 170.10 of the Criminal Procedure Law
to require courts to report the filing of a misdemeanor criminal
conviction against a physician to OPMC as well as to that physician's
employer(s).

Adds new § 180.90 to the Criminal Procedure Law to require courts to
report the filing of a felony criminal indictment against a physician
to (OPMC as well as to that physician's employer, if the criminal
indictment relates to the physician's employment.

EXISTING LAW:

Current law requires only minimal and periodic reporting from
insurance companies, hospitals and district attorneys as to instances
of professional misconduct by physicians. Most reporting does not go
to OPMC, which is responsible for overseeing such conduct. Reports of
dispositions from medical malpractice insurance carriers upon judgment
or settlement are currently required, but only to the Department of
Health; those reports are not received by OPMC. Hospitals are the


only entity required to report termination for conduct to OPMC. Even
still, many incidents within those realms go unreported through
loop-holes in the current reporting mechanisms.
Additionally, even when credible reports are received, no mandate
exists requiring OPMC to act in disciplining or even investigating
the health care providers who are the subject of such reports.

JUSTIFICATION:

Two percent of physicians in the state of New York account for over
1/3 of the medical malpractice payouts in the state. Nearly 90% of
physicians in New York have not paid a single malpractice claim in
the last decade.
This super-minority of medical professionals has plagued the rest of
the dignified profession who practice medicine responsibly but find
it difficult to afford the costs of medical malpractice insurance
premiums. Not only are they a detriment to their professional
colleagues, but a danger to patients as well.

Nationally, only 16% of those doctors who paid out 5 or more medical
malpractice claims in ten years faced any kind of licensure action.
This proposed legislation will effectively add meat to the bare boned
policy of holding doctors accountable for their actions, especially
recurring ones. For example, in New York between 1988 & 1998, 15
practitioners accounted for 412 medical malpractice suits and yet
only two of them lost their license.
By requiring reporting from all relevant sources and mandating action
by OPMC after enough reports have piled up against one individual in
a short period of time, this legislation ensures that a timely
investigation is done and any wan-anted action is taken to combat bad
professional conduct by physicians.

This bill will drive down costs of medical malpractice insurance in
the state by identifying and removing bad doctors quickly, thus
reducing the occurrences of actual medical malpractice. The entire
medical profession in New York does not deserve to suffer from the
actions of a minority of its practitioners, and neither do patients.
This bill seeks to single out those few "bad apples" and make sure
that patients as well as other doctors are protected from their
harmful acts.

PRIOR LEGISLATIVE HISTORY:

2005: A.7829/S.4906 - Assembly Calendar/Senate Insurance Committee
2006: A.7829/S.4906 - Assembly Health Committee/Senate Insurance
Committee
2007: A.5995B/S.6534A - Assembly Health Committee/Senate Rules
Committee
2008: A.5995B/S.56534A - Assembly Codes Committee/Senate Health
Committee

FISCAL IMPLICATIONS:

None. There exists no fiscal implication to the state as OPMC is
currently staffed and funded sufficiently to handle the increase in
conduct reports likely to be generated by this legislation.


EFFECTIVE DATE:

90 days following enactment.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4424

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              April 5, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, the insurance law and the  crimi-
  nal  procedure  law, in relation to requiring the reporting of medical
  malpractice to the office of professional medical conduct

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section 230 of the public health law is amended by adding
a new subdivision 9-b to read as follows:
  9-B. (A) AT ANY TIME, IF THE OFFICE OF  PROFESSIONAL  MEDICAL  CONDUCT
HAS  ACCRUED  A  TOTAL  OF  THREE REPORTS RELATING TO SEPARATE INCIDENTS
CONCERNING ONE LICENSEE PURSUANT TO PARAGRAPH THREE OF SUBSECTION (B) OF
SECTION THREE HUNDRED FIFTEEN OF THE INSURANCE LAW OR PARAGRAPH SEVEN OF
SUBSECTION (B) OF SECTION FOUR  THOUSAND  EIGHT  HUNDRED  THREE  OF  THE
INSURANCE  LAW,  SECTION 170.10 OR 180.90 OF THE CRIMINAL PROCEDURE LAW,
SECTION TWENTY-EIGHT HUNDRED THREE-E OF THIS CHAPTER, AS ADDED BY  CHAP-
TER  EIGHT  HUNDRED  SIXTY-SIX OF THE LAWS OF NINETEEN HUNDRED EIGHTY OR
SECTION FORTY-FOUR HUNDRED FIVE-B OF THIS CHAPTER, IN ANY  FIVE  CONSEC-
UTIVE YEARS, THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT SHALL COMMENCE A
PROFESSIONAL  MISCONDUCT INVESTIGATION, AS SET OUT IN SUBDIVISION TEN OF
THIS SECTION, AGAINST SUCH LICENSEE. NOTHING IN THIS  SUBDIVISION  SHALL
PRECLUDE  THE  OFFICE  OF PROFESSIONAL MEDICAL CONDUCT FROM COMMENCING A
PROFESSIONAL MISCONDUCT INVESTIGATION AGAINST A  LICENSEE  AT  ANY  TIME
PRIOR TO THE RECEIPT OF THREE SUCH REPORTS IN FIVE YEARS.
  (B)  AT  ANY  TIME,  IF THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT HAS
ACCRUED A TOTAL OF FIVE REPORTS RELATING TO SEPARATE INCIDENTS  CONCERN-
ING ONE LICENSEE PURSUANT TO PARAGRAPH FOUR OF SUBSECTION (B) OF SECTION
THREE  HUNDRED  FIFTEEN  OF  THE INSURANCE LAW OR UNDER PARAGRAPH (A) OF
THIS SUBDIVISION IN ANY TWO CONSECUTIVE YEARS,  THE  OFFICE  OF  PROFES-
SIONAL MEDICAL CONDUCT SHALL COMMENCE A PROFESSIONAL MISCONDUCT INVESTI-
GATION,  AS  SET  OUT  IN  SUBDIVISION TEN OF THIS SECTION, AGAINST SUCH

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10563-01-1

S. 4424                             2

LICENSEE.   NOTHING IN THIS  PROVISION  SHALL  PRECLUDE  THE  OFFICE  OF
PROFESSIONAL  MEDICAL  CONDUCT FROM COMMENCING A PROFESSIONAL MISCONDUCT
INVESTIGATION AGAINST A LICENSEE AT ANY TIME PRIOR  TO  THE  RECEIPT  OF
FIVE SUCH REPORTS IN TWO YEARS.
  S  2. Subsection (b) of section 315 of the insurance law is amended by
adding two new paragraphs 3 and 4 to read as follows:
  (3) IN ADDITION TO THE REPORTS  REQUIRED  BY  THIS  SUBSECTION,  EVERY
INSURANCE  COMPANY  ENGAGED  IN ISSUING PROFESSIONAL MEDICAL MALPRACTICE
INSURANCE IN THIS STATE SHALL REPORT ANY DISPOSITION, WHETHER  BY  JUDG-
MENT  OR  SETTLEMENT,  OF  ANY  CLAIM  AGAINST  A PHYSICIAN, PHYSICIAN'S
ASSISTANT, SPECIALIST'S ASSISTANT, OR HOSPITAL LICENSED IN THE STATE, TO
THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT WITHIN THIRTY  DAYS  OF  SUCH
DISPOSITION.  EACH  HOSPITAL  OR  INDIVIDUAL  LICENSED TO OPERATE IN THE
STATE THAT IS SELF INSURED FOR  MEDICAL  MALPRACTICE  OR  INSURED  BY  A
COMPANY  NOT  LICENSED TO DO BUSINESS WITHIN THE STATE SHALL ALSO REPORT
ANY DISPOSITION, WHETHER BY JUDGMENT OR SETTLEMENT,  OF  ANY  CLAIM  FOR
MEDICAL  MALPRACTICE TO THE OFFICE OF MEDICAL CONDUCT WITHIN THIRTY DAYS
OF SUCH DISPOSITION.
  (4) IN ADDITION TO THE REPORTS  REQUIRED  BY  THIS  SUBSECTION,  EVERY
INSURANCE  COMPANY  ENGAGED  IN ISSUING PROFESSIONAL MEDICAL MALPRACTICE
INSURANCE IN THIS STATE SHALL REPORT ANY NOTICE OF LEGAL ACTION  AGAINST
A  PHYSICIAN, PHYSICIAN'S ASSISTANT, SPECIALIST'S ASSISTANT, OR HOSPITAL
LICENSED IN THE STATE, TO THE OFFICE  OF  PROFESSIONAL  MEDICAL  CONDUCT
WITHIN  TEN  DAYS OF RECEIPT OF SUCH NOTICE. EACH HOSPITAL OR INDIVIDUAL
LICENSED TO OPERATE IN THE STATE THAT IS SELF INSURED FOR MEDICAL  MALP-
RACTICE  OR  INSURED BY A COMPANY NOT LICENSED TO DO BUSINESS WITHIN THE
STATE SHALL ALSO REPORT ANY NOTICE OF LEGAL ACTION FOR MEDICAL  MALPRAC-
TICE  AGAINST  SUCH  HOSPITAL  OR  INDIVIDUAL  TO  THE OFFICE OF MEDICAL
CONDUCT WITHIN TEN DAYS OF RECEIPT OF SUCH NOTICE.
  S 3. Subsection (b) of section 4803 of the insurance law is amended by
adding a new paragraph 7 to read as follows:
  (7)(A) A MANAGED CARE ORGANIZATION SHALL  REPORT  IN  WRITING  TO  THE
OFFICE  OF PROFESSIONAL MEDICAL CONDUCT WITHIN THIRTY DAYS OF THE OCCUR-
RENCE OF DENIAL, SUSPENSION, RESTRICTION, TERMINATION, OR CURTAILMENT OF
TRAINING, EMPLOYMENT, ASSOCIATION  OR  PROFESSIONAL  PRIVILEGES  OR  THE
DENIAL  OF  CERTIFICATION  OF  COMPLETION  OF TRAINING OF ANY PHYSICIAN,
PHYSICIAN'S ASSISTANT, OR SPECIALIST'S ASSISTANT LICENSED BY  THE  STATE
FOR REASONS RELATED TO ANY OF THE FOLLOWING:
  (1)  ALLEGED MENTAL OR PHYSICAL IMPAIRMENT, INCOMPETENCE, MALPRACTICE,
MISCONDUCT OR ENDANGERMENT OF PATIENT SAFETY OR WELFARE;
  (2) ANY PROFESSIONAL REVIEW ACTION THAT ADVERSELY AFFECTS THE CLINICAL
PRIVILEGES OF SUCH INDIVIDUAL FOR A PERIOD OF LONGER THAN  THIRTY  DAYS;
OR
  (3)  ACCEPTANCE OF SURRENDER OF CLINICAL PRIVILEGES OR ANY RESTRICTION
OF SUCH PRIVILEGES OF SUCH INDIVIDUAL:
  (I) WHILE THE INDIVIDUAL IS UNDER INVESTIGATION  BY  THE  HEALTH  CARE
ENTITY  RELATING  TO  POSSIBLE  INCOMPETENCE  OR  IMPROPER  PROFESSIONAL
CONDUCT, OR
  (II) IN RETURN FOR NOT CONDUCTING SUCH AN INVESTIGATION OR PROCEEDING.
  (B) SUCH REPORT SHALL CONTAIN:
  (1) THE NAME, WORK ADDRESS, AND WORK PHONE NUMBER OF THE INDIVIDUAL;
  (2) THE HOME ADDRESS OF THE INDIVIDUAL, IF KNOWN;
  (3) DATE OF BIRTH OF THE INDIVIDUAL;
  (4) THE PROFESSION AND LICENSE NUMBER;
  (5) ANY STATES OR TERRITORIES IN WHICH THE INDIVIDUAL HOLDS A  PROFES-
SIONAL LICENSE, IF KNOWN;

S. 4424                             3

  (6) THE DATE OF THE ACTION TAKEN AGAINST SUCH INDIVIDUAL;
  (7) A DETAILED DESCRIPTION OF THE ACTION TAKEN; AND
  (8)  THE  REASON OR REASONS FOR THE MANAGED CARE ORGANIZATION'S ACTION
OR THE NATURE OF THE ACTION OR CONDUCT WHICH LEAD TO THE RESIGNATION  OR
WITHDRAWAL AND THE DATE THEREOF.
  S 4. Subdivision 9 of section 170.10 of the criminal procedure law, as
renumbered by chapter 449 of the laws of 1992, is renumbered subdivision
10 and a new subdivision 9 is added to read as follows:
  9.  UPON  THE  FILING  OF A MISDEMEANOR CONVICTION IN A LOCAL CRIMINAL
COURT AGAINST A PHYSICIAN LICENSED BY THE STATE, THE COURT SHALL  NOTIFY
THE  OFFICE  OF PROFESSIONAL MEDICAL CONDUCT OF SUCH CONVICTION IN WRIT-
ING. SUCH NOTIFICATION SHALL BE GIVEN NO LATER THAN FIVE DAYS  FOLLOWING
THE  FILING  OF  THE  CONVICTION WITH THE COURT, EXCLUDING SATURDAYS AND
SUNDAYS.
  S 5. The criminal procedure law is amended by  adding  a  new  section
180.90 to read as follows:
S 180.90 PROCEEDINGS UPON FELONY INDICTMENT; LICENSED PHYSICIAN.
  UPON  THE  FILING  OF  A  FELONY  INDICTMENT IN A LOCAL CRIMINAL COURT
AGAINST A PHYSICIAN LICENSED BY THE STATE, THE COURT  SHALL  NOTIFY  THE
OFFICE  OF PROFESSIONAL MEDICAL CONDUCT. THE COURT SHALL ALSO NOTIFY THE
DEFENDANT'S PLACE OR PLACES OF EMPLOYMENT OF SUCH INDICTMENT IN WRITING,
IF SUCH INDICTMENT RELATES TO THE PHYSICIAN'S EMPLOYMENT. SUCH NOTIFICA-
TION SHALL BE GIVEN NO LATER THAN FIVE DAYS FOLLOWING THE FILING OF  THE
INDICTMENT WITH THE COURT, EXCLUDING SATURDAYS AND SUNDAYS.
  S  6.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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