How to file a complaint against a doctor:
- Reasons to file a complaint against a doctor.
- What is Medical Misconduct.
- How to file the complaint.
- What will happen after you file the complaint.
Reasons to file a complaint against a doctor:Fortunately, Professional Misconduct is uncommon amoung doctors. Those doctors who engage in misconduct, however, can cause harm to a great many patients over a long period of time. Patients and their families are truly the eyes and ears of our society protecting us from incompetent or dishonest doctors.
The doctor/patient relationship needs to be very confidential. When a doctor acts improperly it is usually not seen by the Office of Professional Misconduct (OPMC) because of that confidentiality. Unless patients file complaints, a doctor's misconduct can continue. By reporting doctor misconduct, you protect not only yourself, but all patients who will be treated by that doctor. Sometimes all it takes is for the doctor to be told what she/he is doing is wrong, and sometimes the doctor has to be stopped from practicing medicine.
Because of the high cost and time involved in bringing a medical malpractice case, many instances of medical malpractice will never result in a lawsuit. Those instances of malpractice will never show up on the doctor's profile and be available to other patients considering that doctor. Medical Malpractice Attorneys turn down cases every day because they are too small even when there is clear evidence of malpractice. Filing a complaint with the Office of Professional Misconduct in those cases will give you a sense of justice knowing that the malpractice did not just get swept under the carpet. If the OPMC finds the doctor to have committed malpractice, this will remain on her/his file for future reference should other complaints be filed. If the OPMC finds that malpractice rises to the level of "misconduct," that will be published on their website and available to the public.
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What is Medical Misconduct:
Medical misconduct is not just that your doctor is rude or has an abrupt bed side manner. Take a moment to see if what you are going to complain about can be considered misconduct. Below is a list of some of the things that can be considered misconduct. If you're not sure if your complaint amounts to misconduct, file the complaint and the OPMC will tell you. Misconduct generally fits within these catagories:
- Misconduct in giving care and treatment.
- Offensive conduct which may be considered misconduct.
- Fraud which may be considered misconduct.
- Moral issues which may be considered misconduct.
Misconduct in giving care and treatment:
- Being negligent or incompetent more than once.
- Being grossly negligent or incompetent even one time.
- Treating someone while the doctor is impaired by alcohol, drugs, physical or mental disability.
- Being an abuser of alcohol or drugs.
- Doing a procedure or treatment that he/she is not competent to perform or without proper supervision, except in a life or death emergency.
- Allowing someone to do a procedure or treatment who is not qualified.
- Doing a procedure or surgery with anesthesia without telling the patient every doctor, podiatrist or dentist who will be actively doing the procedure (other than residents), unless it's a life or death emergency.
- Doing any procedure, treatment or surgery not authorized by the patient or legal representative, unless it's a life or death emergency.
- Abandoning or neglecting an existing patient who needs immediate care, without making reasonable arrangements for such care.
- Not giving reasonable notice that your doctor has left a practice so you can get proper treatment.
- Not properly supervising someone who the doctor is required to supervise such as a Physician's Assistant, Nurse Practitioner or Nurse Anesthetist.
- Failing or refusing to give records or treatment information to other doctors at your request.
- Not making or keeping records of treatment. A doctor is required to keep your records for at least 6 years and an Obstetrician is required to keep them for the greater of 6 years or until the child turns 19.
- Not giving you a copy of your records when you request them. The doctor can charge you .75¢ per page and can take a reasonable time to provide them to you.
- For an ophthalmologist, not giving you your prescription upon your request.
Offensive conduct which may be considered misconduct:
- Verbally or physically harassing, abusing or intimidating a patient.
- Refusing to treat anyone because of their race, religion, color, sexual orientation or where they are from.
- Sexual contact with a patient (with very limited exceptions).
- Doing a partial or complete autopsy on a deceased person without lawful authority such as a family's consent or where required by law.
- Not completing forms for insurance, workers' compensation, employment, Medicaid or Medicare so that you can get reimbursed. The doctor can, however, charge for completing forms.
- Giving out your personal information without your permission unless required by law.
- Not wearing a label clearing identifying their name and professional title such as doctor, M.D., Physician's Assistant, P.A., Nurse Practitioner, N.P., while working in a hospital. This could also include refusing to identify himself/herself when asked.
Fraud which may be considered misconduct:
- Sending you for unnecessary or excessive tests not required by your condition.
- Promissing or guaranteeing you a specific result from a surgery or treatment.
- Using or claiming to have a "secret or special" treatment, surgery or procedure which he/she refuses to divulge to the department of health
- Trying to force you to get or use a drug, device, test, etc., which will financially benefit the doctor without telling you that she/he will benefit financially.
Moral issues which may be considered misconduct:
- Filing a false report or failing to file a required report.
- Paying anyone to refer patients to him/her.
- Splitting a fee with anyone who is not a partner in his/her professional practice.
- Praticing without a license or with a suspended license in NY or any other state.
- Helping anyone practice without a license or with a suspended license or failing to report someone that they know is practicing without a license or with a suspended license.
- Being found guilty of medical misconduct in NY or in any other state.
- Being convicted of a crime in NY or in any other state.
- Getting their license by false statement.
How to file the complaint:
- Gather the information you will need: This includes the name of the doctor your are complaining about, their phone number, website and address. You can get the address and license information from the medical records, including Death Certificate and Autopsy report if applicable. You will want to be able to point the investigator to portions of the medical records to support your claims.
- Write out a draft of your complaint: This will make filing out the Dept. of Health (DOH) complaint form easier and make your complaint more effective. For the most effective complaint, follow these tips in drafting the complaint:
- Write out a simple explanation of what you think was the doctor's medical misconduct. Look at What is Medical Misconduct to figure out what the doctor did wrong. Avoid complaining about every thing said or done. The investigator reading your complaint will be looking for specific things which he/she will consider medical misconduct, not that your doctor was rude, uncaring or arrogant. If your chief complaint is that an anesthesiologist left the operating room during a surgery, for example, it does not help your complaint to argue that the surgeon did not seem concerned about your feeling when explaining that your loved one did not survive the surgery. The most convincing complaint is one that is simple and straight forward.
- Explain what any doctors or other medical professionals said when they told you that they thought what the doctor did was wrong and include their names, addresses and telephone numbers. Don't be surprised if the doctor is not as frank with the OPMC investigator as she/he was with you. While a doctor may not tell the investigator point blank that your doctor committed gross negligence, she/he is still likely to point out the facts. The investigator can draw the conclusion.
- Include any research you have found, even just internet research, as soon as it fits your circumstance and shows clear incompetence.
- Include copies of all medical records you have.
- Do not try to sound like a doctor or a lawyer. Be yourself.
- Go to the Department of Health Complaint website: Read and even print out the instructions for filing the complaint.
- Fill in the necessary information: Open the DOH complaint form (requires Adobe) and print out a copy of the complaint. Answer all questions making sure to include accurate contact information for you, the doctor you are complaining about and any witnesses. Use your written draft complaint to fill in the "Description on page 2. You can attach a separate sheet, if necessary, and just put "see attached sheet" under Description.
- Sign your complaint: The complaint must be signed on the bottom and dated.
- Mail your completed complaint: Make a copy of the complaint before you are sending it. Put the complaint in an envelope with all supporting papers such as medical records, photographs, etc., and mail it to
Office of Professional Medical Conduct
433 River St., Suite 303, Troy, NY, 12180-2299
- If your complaint is about a Hospital: Mail your complaint to:
New York State Department of Health
Centralized Hospital Intake Program
433 River Street 6th Floor
Troy, New York 12180
What will happen after you file the complaint:
- Your complaint will be read by an OPMC investigator: The first thing that will happen is that your complaint will be read by an OPMC investigator and medical professionals, if necessary. They will decide if your complaint is about "medical misconduct." If they do not believe that what you are complaining about is "medical misconduct," you will be sent a letter and the complaint will be closed. For example, if you were complaining that the doctor charged you too much, that will generally not be considered medical misconduct, and the complaint will be closed.
- If the OPMC investigator or committee believes your complaint is about medical misconduct: The investigator can do the following:
- Request more information or documents from you.
- Send a copy of your complaint to the doctor and ask for her/his reply.
- Start an investigation, interview you and other witnesses and obtain relevant documents.
- After the investigation is complete: The committee will either:
- File charges against the doctor and schedule a hearing, or
- Make a finding that there is not enough evidence to show "medical misconduct" and close the investigation. You will receive a notice of that. Although no charges are filed, the complaint stays in the OPMC records should the same type of complaints be made against the doctor in the future.
- After a Hearing: If the investigation committee files charges there will be a disciplinary hearing before the OPMC Board which will have 2 doctors and 1 layperson. Ater the hearing the Board can find the doctor either guilty or innocent.
- If found innocent, the charges will be dismissed. You will receive a notice of that. Although the charges are dismissed, the complaint stays in the OPMC records should the same type of complaints be made against the doctor in the future.
- If found guilty, the Board can take away the doctor's license or suspend it for a period of time. The Board could also limit what the doctor is allowed to do with patients, issue a fine, require further training or issue a warning.
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