250.999           Guidelines for Reporting Professional Misconduct:

Paragraph (a) of Subdivision (11) of section 230 of the Public Health Law provides:  “MSSNY, the New York State Osteopathic Society or any district osteopathic society, and statewide medical specialty society or organization, and every county medical society, every person licensed pursuant to articles one hundred thirty-one, one hundred thirty-one-B, one hundred thirty-three, one hundred thirty-seven and one hundred thirty-nine of the education law, and the chief executive officer, the chief of the medical staff and the chairperson of each department of every institution which is established pursuant to article twenty-eight of the public health law shall, and any other person may, report to the board any information which such person, medical society, organization or institution has which reasonably appears to show that a licensee is guilty of professional misconduct as defined in sections sixty-five hundred thirty and sixty-five hundred thirty-one of the education law.  Such reports shall remain confidential and shall not be admitted into evidence in any administrative or judicial proceeding except that the board, its staff, or the members of its committees may begin investigations on the basis of such reports and may use them to develop further information.”

Questions have been raised concerning how county medical societies should process complaints received from the public either by telephone or in writing.  It is questionable whether the mere receipt of a complaint by a county medical society, where the county medical society does not have first-hand or direct information regarding the alleged misconduct, and where the county medical society has not conducted any investigation of its own, constitutes information which reasonably shows that a physician is guilty of professional misconduct.  The resources and ability of county medical societies to investigate complaints varies with each society.

The following are suggested Guidelines for the County Medical Societies In Reporting Complaints of Professional Misconduct: 

Whether to make an investigation.

(1) Whether a particular complaint should be investigated must be a decision made by the county medical society.  It is recognized that the county medical society may not have the resources to investigate all complaints.

(2)a  If the county medical society investigates a complaint and finds that the evidence reasonably shows that the physician is guilty of professional misconduct as defined by section 6530 of the Education Law, the county medical society has an obligation to report to the Office for Professional Misconduct (OPMC).  If the county medical society investigates and finds that the information does not reasonably show that the physician is guilty of misconduct, the county medical society need not report to the OPMC.  The complainant should be advised that if he is dissatisfied with the findings, he, as an individual, may file a complaint with the OPMC against the physician.

(2)b  The word “reasonable” cannot be defined for the purposes of these guidelines, and, whether information “reasonably” shows that a physician is guilty of professional misconduct depends upon the facts and circumstances of the case.  The county medical society should be prepared to show that its findings were objectively made.  According to the law, any person, organization or medical society who reports or provides information to the OPMC in good faith and without malice shall not be subject to an action for civil damages or other relief as the result of such report.

(2)c  It should be understood that in any case where the county medical society investigates a complaint, the OPMC may at a later time subpoena the records of the county medical society.

(3)  If the county medical society does not investigate a complaint, the following procedures are suggested:

(a)  If a complaint is made “verbally,” the complainant should be advised that the individual can file a complaint with the OPMC on his own.  The county medical society should provide information regarding whether the complaint should be forwarded.  If the complainant prefers, the county medical society may forward the complaint to the OPMC on behalf of the complainant, if he will submit the complaint in writing. “Do not forward a complaint unless it is in writing.”

(b)  If the initial complaint is received by the county medical society in writing, the complainant should be contacted and informed that he can either file a complaint with the OPMC on his own, or, if the complainant prefers, the county medical society will forward the complainant’s letter to the OPMC.

(c)   If the county medical society forwards a written complaint of the complainant to the OPMC without having made its own investigation, both the complainant and the OPMC should be informed in writing that the county medical society has made no investigation, and in forwarding such complaint, the county medical society takes no position regarding the alleged misconduct of the physician.

(d)  In lieu of paragraphs (a)-(c), if the county medical society prefers not to forward a complaint which it has not investigated, the county medical society should provide information to the complainant regarding how he, as an individual, may file a complaint with the OPMC.

(e)  Records should be kept regarding the complaint received and information disseminated by the county medical society.  (Council 6/16/83; Reaffirmed HOD 2013; Reaffirmed HOD 2023)