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Complaint about doctor languishes in state bureaucracy

BY MICHAEL AMON | michael.amon@newsday.com

June 20, 2008

Raymond Bookstaver expected a prompt response in July 2005 when he filed a complaint against Dr. Harvey Finkelstein, the Plainview physician who authorities say reused syringes and put patients at risk of disease. He says he contracted hepatitis C in Finkelstein's office and is suing the doctor.

Nearly three years later, Bookstaver said yesterday the state Office of Professional Medical Conduct had not told him the results of its probe. Investigators, he said, had not even interviewed him yet.

As it turns out, his complaint was closed last September, but OPMC neglected to inform him, said Claudia Hutton, a state Department of Health spokeswoman.

"We apologize for the error," Hutton said.

Hutton said Bookstaver, 50, of Hicksville, soon will receive a letter stating that the case had been resolved without disciplinary action. The letter will say nothing about whether Bookstaver was infected in Finkelstein's office.

"Oh, that's very nice of them," Bookstaver said, adding: "It just boggles the mind how they don't care."

New York is among a handful of states that do not name physicians unless they are found guilty of misconduct and that do not hold disciplinary hearings in public. Bookstaver was never told that, in Finkelstein's case, a hearing was never held, and that the doctor was placed under state monitoring for three years. The state never determined how Bookstaver was infected.

"New York's system is designed to protect the doctor," said Matthew Lifflander, a Manhattan lawyer who served on a State Legislature medical conduct task force in the early 1970s and is an advocate for tougher discipline laws. "It is overly bureaucratic and overly secretive, and everything takes too long."

State officials said Bookstaver's complaint took longer to resolve than most. An average complaint is dismissed or forwarded for a hearing in 234 days, Hutton said. Bookstaver's complaint, filed on July 27, 2005, was handled by OPMC's New Rochelle office, which then had the highest caseloads in the state, a state comptroller's audit found.

Bookstaver received epidural spinal injections for back pain from Finkelstein in July 2004. His hepatitis C diagnosis came in October 2004 and he made his complaint after getting a May 2005 Health Department letter saying Finkelstein patients were at risk.

As the months wore on, Bookstaver said, his wife, Loretta, made regular phone calls to OPMC but learned little.

Frustrated, she wrote letters in August 2006 to Sens. Hillary Rodham Clinton and Charles Schumer, who forwarded her complaints to the Health Department.

Dennis Whalen, then the department's No. 2 official, wrote back to Clinton with details of a probe into hepatitis C transmissions. But, he told the senator, the separate "OPMC matters are strictly confidential."

Demystifying doctor discipline

The State Legislature is considering a bill proposed by Gov. David A. Paterson to dramatically change the state's physician-discipline system. The bill in part was inspired by the state's waiting three years before publicizing the case of Dr. Harvey Finkelstein, the Long Island doctor whose improper infection-control techniques eventually triggered the notification of thousands of patients.

The bill's key elements

Make charges public when they are served on a physician. Such charges are now undisclosed.

Authorize the state to release information about any public health threat to come to light during an investigation. Now, such information is made public only after the doctor under investigation is found guilty.

Give health departments more power in conducting a public health investigation. A physician's failure to respond to records requests from health departments would be "professional medical misconduct. "

Require that the Office of Professional Medical Conduct regularly review malpractice claims and payouts to see if a doctor should be investigated.

Mandate that health plans report when they have terminated a contract with a doctor because of "impairment or misconduct. "

Make sure physicians regularly update their physician profiles, which contain information such as educational background, practice area and legal actions.

Require doctors who have lost their right to practice medicine to take steps to safeguard and make accessible the medical records of their former patients.

Allow the Board for Professional Medical Conduct to require an objective, impartial evaluation of a physician's competency.