NY State Senate Bill 2009-S3670

Senate Bill S3670

2009-2010 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Mar 27, 2009	referred to health

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2009-S3670 (ACTIVE) - Details

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 2011-2012 Legislative Session:: S4424

2009-S3670 (ACTIVE) - 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.

2009-S3670 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3670

 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 § 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.

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).

 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.

 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.6534A: Assembly Codes Committee/Senate Health
Committee.

 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.

 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.

2009-S3670 (ACTIVE) - Bill Text download pdf

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

                                  3670

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 27, 2009
                               ___________

Introduced  by Sens. FLANAGAN, HANNON, RANZENHOFER, VOLKER -- 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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06684-01-9

S. 3670                             2

GATION, AS SET OUT IN SUBDIVISION TEN  OF  THIS  SECTION,  AGAINST  SUCH
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;

S. 3670                             3

  (5)  ANY STATES OR TERRITORIES IN WHICH THE INDIVIDUAL HOLDS A PROFES-
SIONAL LICENSE, IF KNOWN;
  (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.  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 5. 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  6.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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Senate Bill S3670

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John J. Flanagan