I just recently concluded a negotiation with OPMC in a case involving a physician who was found to be drunk while examining patients in the office.  He was confronted by a fellow physician and ended up in a rehabilitation facility the next day.  He remained in rehab for about 12 weeks and then returned to work while entering an outpatient program with Committee for Physician Health (CPH).

The client was reported for substance abuse by the fellow physician, as is required by law, and in due course the letter arrived from OPMC asking the client to come to discuss the matter at an interview. OPMC also wanted to discuss an arrest for drunk driving that had occurred a few years ago along with the guilty plea that resulted from that arrest. The client called me and asked that I represent him as his attorney.

The first issue I addressed was the drunk driving plea.  This was very important because when the client renewed his medical license after the drunk driving plea he had answered “no” to the question on the renewal application as to whether he had been convicted of a crime since his last license renewal.  The obvious question was whether the client had falsified his medical license renewal application by lying about this drunk driving plea.  This issue had to be addressed and therefore I contacted the lawyer who had represented the doctor in the criminal matter.  He could not recall much about the matter but he went to the clerk of the court and obtained the official documentation that showed the final outcome of this charge.  Thankfully, the doctor had admitted guilt to a Violation and not a Misdemeanor or a Felony.  This was very important because the word “crime” in the license application form only applies to Misdemeanors and Felonies and therefore this plea to a Violation did not count as a “crime”.  So, I was able to prove that the doctor had truthfully filled out the medical license renewal application and that issue was put to rest.

The doctor and I then prepared for the Interview with OPMC.  It quickly became apparent that there really was not much to discuss.  The doctor had been drunk in the office while examining patients and there was no way to deny that fact.  He also had gone to rehab for several months and had admitted on numerous occasions that he was an alcoholic.  He had signed a five-year contract with the Committee for Physician Health (CPH) and was attending weekly meetings and was undergoing random urine testing for alcohol intake.  What was there to contest at this Interview regarding his alcoholism?

I have represented many physicians at OPMC interviews and I know that trying to defend behavior that is indefensible will do nothing but put your client in the worst possible position.  Here, there was nothing to do but have the client be completely forthcoming and honest about his alcohol situation.  At the Interview, he answered all of the questions honestly and we pointed out that it had by now been over a year since he had taken a drink of alcohol, that he was in complete compliance with all of the requirements of CPH and that he had never tested positive for alcohol.

Now the issue was just what OPMC was going to do about this situation.  If they charged the doctor and forced a Hearing, there would have been nothing to prove since he had admitted to all of the facts in question.  So, the issue was raised concerning having the client enter into a Consent Order which would lay out the facts of the matter and compel him to continue in treatment for a five-year period with random testing.  The problem with that result is that the Order would be posted on OPMC’s website and everyone who looked would see that the doctor had been an alcoholic and was under treatment for the problem.  Obviously, this is not something any physician wants to have available for the public to see.  The result was that we agreed to a non-disciplinary Order which required the doctor to continue in therapy with monitoring.  But, the crucial difference is that non-disciplinary Orders are not posted on OPMC’s website.  This was the best possible result for the doctor.

As can be seen from this example, even with a very unpleasant set of facts, it is possible to achieve a very satisfactory result if you take the time to analyze all of the issues and work out a game plan that makes sense.

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