Laurence M. Deutsch and Steven E. North
Recently, New Yorkers (and many around the country) were shocked at the news that a doctor came into the Bronx Lebanon Hospital with a rifle hidden under his lab coat and killed another physician. The shooter, Dr. Henry Bello, had been fired from the hospital two years prior to the shooting. After killing another physician, Dr. Bello took his own life at the scene.
This event is obviously tragic in itself. It also reflects a broader problem for many in the public trying to learn more about the history of their doctors.
Dr. Bello was allegedly fired from the hospital for many confrontational interactions with staff and ultimately an allegation of sexual harassment. In addition, Dr. Bello had at least two prior criminal convictions including one in which he pled guilty to “unlawful imprisonment” for lifting a woman off her feet and attempting to carry her against her will and another conviction as a “peeping Tom.”
But even after these convictions, Dr. Bello continued working at Bronx Lebanon Hospital for many years following his conviction, prior to his firing by the hospital for sexual harassment.
This begs the question of how little the public and patients really know about their doctors’ histories.
While a criminal conviction of a working physician is rare, it is not uncommon that a doctor is subject to official investigation for misconduct by the Office of Professional Medical Conduct (OPMC). According to the rules governing such proceedings, however, they are kept secret from the public unless there is a "final determination" of the doctor’s discipline. Individual physicians are searchable for prior findings of official misconduct at the OPMC website. However, doctors who enter into consent decrees or other agreements to continue practice under some form of supervision, in lieu of a formal finding of discipline, are not necessarily subject to a "determination" that is searchable by the public.
In addition, some physicians, as individuals in any walk of life, can be impaired by medical conditions, psychological conditions, physical conditions and/or substance abuse. But if such a physician harms a patient as a result of a medical or other unfitness to practice, it is notoriously difficult to obtain the prior medical or psychiatric history of the physician even if it played an actual a role in the malpractice. According to New York case law (e.g., Dillenbeck v Hess, 73 NY 2nd 278, 1989) a doctor's medical history is not normally discoverable in a malpractice case unless the doctor has first placed it "in issue" in the case.
This can result in seemingly unfair results. For example, if a patient believes that a doctor committed malpractice because the doctor was impaired by painkillers, the patient may want to try to obtain that doctors prior medical records. However, unless the doctor himself or herself placed his or her own medical condition at issue, the patient would normally be denied access to that information, according to the Dillenbeck case. By contrast, nearly anything in the patient's own medical history is "fair game" for the other side. This is sometimes rationalized by the fact that the Plaintiff brought the case, and thus has “waived” his or her own privilege.
Regardless of whether these rules seem fair, the bottom line is that obtaining information on a doctor’s criminal history, prior disciplinary involvement, or possible medical problems is extremely difficult. Given the rules governing this information, we typically tell clients that the proof in the case will normally stand or fall depending upon proof of actual malpractice in the specific case. Trying to prove malpractice by getting at the doctor's personal, criminal or health background is typically not allowed by the courts and will often be a dead end in litigation.
The strongest evidence in a case, therefore, is almost always the evidence of the medical care rendered in the case itself. It is a broader public policy question whether there should be greater transparency about doctors’ backgrounds, especially after the Bronx-Lebanon shooting. For now, however, we evaluate cases based on the facts as they appear in the particular instance.
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