OPMC Representative Case

A family practitioner in a rural community was confronted with allegations of professional misconduct in the treatment of eight patients over the course of many years. The physician regularly saw and treated the patients for a variety of complex medical problems. The patients had in common the fact that they were all also being treated for chronic pain.

After reviewing the physician’s office records, following the deaths of two of the patients, the New York Board for Professional Medical Conduct at the State Department of Health (the ‘Department’) charged the family practitioner with numerous counts of gross negligence, negligence on more than one occasion, incompetence on more than one occasion and numerous counts of alleged failure to maintain records, among other things.

Attorneys and physicians at the Department alleged that the family practitioner had inappropriately ordered and/or administered pain medication, administered narcotic agonists along with narcotic agonists-antagonists, failed to maintain records that accurately reflected the care and treatment rendered to the patients, failed to perform adequate physical examinations, failed to adequately monitor the patients’ use of pain medications, inappropriately prescribed acetaminophen and/or acetaminophen-containing medications to a patient with a history of liver disease; failed to adequately treat a patient for hypertension and hepatitis C, and failed to adequately treat patients for chronic pain.

The statement of charges set forth thirteen general ‘specifications’ and sixty-four particularized patient-related allegations of professional misconduct. This was obviously a most series, potentially career-ending situation for the physician who was the subject of these charges.

The family practitioner retained a large law firm in New York City. After having billed through much of the physician’s available insurance coverage, the large law firm concluded that it could not mount an effective defense to all these charges.

The physician then retained Sholes & Miller, LLP. The partners in the firm, Sarah Sholes and Robert Irving Miller, worked together on the matter. They reviewed the allegations and all of the patients’ medical and hospital records in detail. They retained highly qualified physician experts in pain management and in internal medicine to review and analyze the complex medical issues.

A hearing committee of the Board for Professional Medical Conduct conducted hearings in the matter, in Manhattan, on ten different occasions over the course of nine months. Ms. Sholes and Mr. Miller took turns attending the hearings and cross-examining the Department of Health’s expert witnesses.

Ms. Sholes and Mr. Miller, through cross-examination, repeatedly demonstrated that the expert witnesses called by the Department of Health based their opinions upon factual mistakes and incorrect review of the medical records. The defense demonstrated that the Department of Health’s experts were not credible or convincing, as the hearing committee subsequently agreed. One of the many interesting deficiencies in the Department’s presentation was that its experts had not reviewed numerous hospital records that indicated that the family practitioner had often managed these patients in a comprehensive and thoughtful manner during hospitalizations, in between office visits.

The hearing committee found that the experts called by Sholes & Miller were both objective and consistent in their testimony and that their opinions were supported by the evidence and backed up by persuasive reasoning.

In contrast, the Department of Health experts “frequently withdrew statements critical of the [family practitioner] or corrected such statements during cross-examination. They were profoundly challenged by the [family practitioner’s] experts, who appeared well versed and reliable.”

The panel issued an 85-page decision dismissing all of the Department of Health’s charges. In its decision, the committee wrote: “The hearing committee was impressed with the thoroughness of the Respondent’s medical records and [ ] willingness to undertake the care of difficult patients. The hearing committee observed that most of the patients who were the subject of this proceeding were difficult patients, with complex physical and mental issues. In addition, some of these patients required extraordinary amounts of attention. Unfortunately, many physicians, unlike the Respondent, would decline to accept these individuals as patients. However, the Respondent not only accepted these individuals as patients, but [ ] provided the necessary amounts of attention required by each particular patient. The hearing committee found that the Respondent is a caring, thoughtful, conscientious, hard-working and devoted physician.”

In their eighty-five-page decision, the hearing committee unanimously concluded that the Department of Health did not meet its burden of proving the allegations of professional misconduct.

The physician against whom the charges were brought remained actively engaged in the practice of family medicine until retirement several years later.

Result : Dismissal of charges.
Defense Attorney : For the physician: Sarah E. Sholes and Robert Irving Miller.
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