35.4 Consequences of Abuse or Failure to Report Abuse

• Library: Legal Manual for NY Physicians 2014

consequences of abuse
or failure to report abuse

What action does the Department of Health take when it determines that abuse or a failure to report abuse has occurred?

The DOH issues a written report, which must be sent by registered or certified mail to each person found either to have committed an act of abuse or to have failed in the duty to report abuse. Notice of the right to a hearing must accompany the DOH’s written report.¹⁴⁶¹ A copy of the DOH’s written report must also be sent to the nursing home at which the abuse reportedly occurred.¹⁴⁶²

Once it has given the accused physician an opportunity for a hearing, the DOH reports instances of patient abuse or failure to report abuse to the OPMC.¹⁴⁶³ Professional misconduct by physicians includes neglecting a patient, abusing a patient, engaging in conduct evidencing a moral unfitness to practice medicine, violating a state statute or regulation and committing an act constituting a crime.¹⁴⁶⁴ Also, a physician who fails to report nursing home patient abuse, in violation of PHL § 2803-d, is guilty of professional misconduct under New York law.¹⁴⁶⁵

If the accused physician requests a hearing, who conducts the hearing?

The DOH will conduct an administrative fair hearing. The DOH bears the burden of proving, by a “fair preponderance of the evidence,”¹⁴⁶⁶ patient abuse or the failure to report abuse.¹⁴⁶⁷

What kind of sanctions might the Department of Health impose on a physician who abuses a nursing home...