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Dix Hills Doctor Malpractice Investigation Results in Calls for Reform

Nov 29, 2007 | Parker Waichman LLP
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A Range Of Institutional Changes.

The Dix Hills doctor medical malpractice case could spark reforms at the New York State Department of Health.  State Health Commissioner Richard Daines said Tuesday that he is considering a range of institutional changes following public uproar over the state's handling of Dr. Harvey Finkelstein, the Dix Hills doctor who exposed hundreds of patients to blood-borne pathogen infections, including Hepatitis C and B and HIV/AIDS.  Daines is looking to speed public notification, move aggressively against bad doctors, and strengthen the state's authority to obtain medical records.  But, the proposed changes would not guarantee the public would be informed immediately simply because of the time involved in conducting these types of investigations. The commissioner said he had already initiated some changes, including establishing a team to oversee ongoing investigations to ensure they are being done in a timely fashion.

The New York State Department of Health has come under attack for taking nearly three years to advise the public about Finkelstein's hepatitis C contamination.  It took until this November to notify just 628 of Finkelstein's patients, urging them to get tested for hepatitis B and C and HIV.  Since then, the state has sent information to over 300 more people they determined were Finkelstein's patients.  Daines' boss, Governor Eliot Spitzer, called the response unacceptably slow and ordered an investigation.  By the way, state authorities are no longer trying to trace new hepatitis C cases back to Finkelstein.  Because the department has already determined a transmission occurred, its role is to simply notify the public of the risk.  The onus is on infected patients to determine where they contracted the virus and whether they have claims against a physician.

Finkelstein Case, Public Notification Was Delayed.

In the Finkelstein case, public notification was delayed, in part, by eight months of negotiations between the state and Finkelsteins' attorney over access to patients' records, some of which Finkelstein refused to release.  Because the investigation used cutting-edge genetic testing, among other state-of-the-art research techniques, scientists needed over a year to confirm hepatitis C transmission between patients during back-to-back appointments with Finkelstein.  The case then landed in investigators' routine workload and was not made a priority.  Finkelstein's case raised questions about the health department's Office of Professional Medical Conduct (OPMC), which investigates and sanctions doctors. The OPMC issued a nondisciplinary finding, allowing Finkelstein to continue practicing while being monitored for three years.

Daines oversaw the final stages of the notification process in Finkelstein's case and is appointing an expert panel to look at issues, including exactly how far back the state should go when notifying patients of their risk for infectious disease.  State Senate Health Committee Chairman Kemp Hannon has a hearing scheduled December 6th on the Finkelstein case.

When it comes to investigating physicians like Finkelstein, New York State has a system that occurs largely behind closed doors and is among a handful of states that conducts the entire probe in private and withholds a doctor's name unless the complaint is upheld.  Even after an investigation concludes, doctors are not required to notify patients if they are practicing under sanction.  What information is available is found on a state Web site critics argue is not readily accessible.

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