How Professional Misconduct Complaints Can Impact Medical Malpractice Claims

By: Rafi Cheema, Esq., MLMIC Legal Department

Impact of Medical Misconduct Disciplinary Actions on Malpractice Claims

Various types of evidence can be used in medical malpractice litigation – plaintiff or defendant. One notable type of evidence is evidence arising from professional misconduct proceedings.

Professional misconduct findings arising from negligent medical care allegations can seriously impact medical malpractice lawsuits. In very limited circumstances, professional misconduct findings may be admissible as evidence of a physician’s negligence in a medical malpractice lawsuit.

Understanding Professional Misconduct Complaints

To understand the impact of professional misconduct findings on medical malpractice lawsuits, we first need to understand the nature of professional misconduct proceedings. Professional misconduct complaints can range from a documentation issue to a physician engaging in sexual misconduct against a patient or providing negligent medical care. One need not be a former patient to file a complaint against a physician; rather, a family member can file a professional misconduct complaint. The Office of Professional Medical Conduct (OPMC) reviews complaints against physicians, physician assistants and specialist assistants, and determines whether an investigation is warranted.  If an investigation finds evidence of professional misconduct, charges may be filed and a hearing scheduled. A committee for the State Board for Professional Misconduct conducts the hearing, makes findings, and imposes penalties, if appropriate. Penalties can include revoking, suspending or limiting a physician’s license, issuing a censure and reprimand, ordering education and/or retraining, levying a fine, or requiring community service.

While the Board can impose a fine on a physician found to have engaged in professional misconduct, compensation of a claimant alleging medical malpractice is not within its purview. An aggrieved patient who is seeking financial compensation must file a lawsuit in the court system.

Relationship Between Professional Misconduct Proceedings and Civil Litigation

The use of a professional misconduct finding against a physician arising from instances of negligent care or medical malpractice can be an indicator of the claim’s success in a civil court. A finding of professional misconduct arising from a complaint of malpractice or negligent care does not necessarily mean that a jury would also find that the physician under consideration has committed malpractice. Each proceeding has different elements, with different rules of evidence and different factfinders. Professional misconduct is defined by statute and includes “negligence on multiple occasions,” as well as a long list of other acts or omissions constituting professional misconduct. Findings against a physician are determined by the Board after a hearing. Medical malpractice requires proof of medical negligence elements (duty and breach) in addition to two elements never required for professional misconduct, causation, and damages. Also, the standard of proof, rules of evidence, civil procedure, and the factfinder in a medical malpractice action differ from professional misconduct matters. As a consequence, findings arising from the same incident may yield different outcomes in these distinctly different forums.

Any adverse finding entered against a physician is public record and a savvy plaintiff’s attorney may bring it up during the discovery process of a lawsuit. Thus, all misconduct matters involving a defendant physician should be reviewed and discussed before the physician’s deposition is conducted.

As is evident from the foregoing, the impact of professional misconduct complaints on medical malpractice lawsuits cannot and should not be overlooked, especially when the professional misconduct complaint has the potential to be admissible in a civil lawsuit. An adverse finding can change the course of a civil malpractice lawsuit. So, determining admissibility is key when defending a civil lawsuit following an OPMC finding.

Admissibility as Evidence

Admissibility of findings in a professional misconduct matter is very limited. As a general rule, admissibility of evidence depends on whether evidence is relevant and whether its probative value outweighs the risk of undue prejudice. While this same standard applies to the admissibility of professional misconduct findings as evidence, the courts narrowly read the relevance requirement and broadly protect against the prejudicial impact of this type of evidence. Relevance limits admissibility to findings specifically addressing care of the plaintiff seeking admission and addressing only the care alleged to be negligent in the action.  Findings unrelated to the pending medical malpractice allegations or the plaintiff seeking admission are inadmissible as they are both marginally relevant at best and highly prejudicial. Thus, even though findings or consent agreements may be publicly available, admissibility in medical malpractice cases is very limited.

So, what can physicians do to address professional misconduct investigation by OPMC? Any physician facing a professional misconduct complaint should consult with an attorney as soon as possible and always before making any statements to an investigator. This is particularly important if the allegations of professional misconduct arises from medical care that have or may result in a medical malpractice lawsuit. An attorney can assist you in knowing the process and your rights when dealing with this stressful situation.

Likewise, if you have been involved in a professional misconduct proceeding and are also defending a medical malpractice claim, speak with your attorney about the impact findings may have in your case.

Legal Defense Costs Coverage

If you are a MLMIC insured, we recommend reaching out to MLMIC to determine if you have coverage for healthcare providers facing administrative actions brought against a physician or advanced practice provider by a governmental body such as the Office of Professional Misconduct. This optional coverage solely covers defense costs associated with administrative actions. It does not cover any fines or sanctions imposed by government entities, and there is no deductible.

There are two limits of coverage available ($25,000 and $100,000) which applies per policy period, per insured.

MLMIC insureds can apply for this optional coverage which is subject to approval and is for an additional premium here.

MLMIC’s dental professional liability policies include built-in legal defense cost coverage of up to $25,000 for administrative actions and Medicare/Medicaid fraud or abuse. Qualifying dentist policyholders can increase this limit to up to $100,000 for an additional premium.

MLMIC policyholders can reach out to our healthcare attorneys for questions about healthcare law inquiries by calling (800) 275-6564 Monday-Friday, 8 a.m.-6 p.m. or by email here.

Our 24/7 hotline is also available for urgent matters after hours at (877) 426-9555 or by emailing hotline@tmglawny.com.

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If you are not already a MLMIC insured, learn more about us here.

Sources:

1. Understanding New York’s medical Conduct Program – Physician discipline. (n.d.). https://www.health.ny.gov/publications/1445/#:~:text=The%20New%20York%20State%20Health,assistant%20and%20unlicensed%20resident%20physician.
2. NYS Professional Misconduct Enforcement –Discipline Complaint Form. (n.d.). https://www.op.nysed.gov/enforcement/discipline-complaint-form#:~:text=For%20information%20on%20filing%20a,New%20York’s%20professional%20discipline%20system.
3. New York State Education Law 6530 Definitions of Professional Misconduct. (n.d.). https://www.health.ny.gov/professionals/office-based_surgery/law/6530.htm  
4. Mazella v. Beals, 27 N.Y.3d 694 (2016), https://casetext.com/case/mazella-v-beals-22
5. Maraziti v Weber, 185 Misc. 2d 624, 626, https://casetext.com/case/maraziti-v-weber-1

This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions. Policy coverage is subject to the terms and conditions therein.