Michael Amon

N.Y. had subpoena power it didn’t use

Posted in Uncategorized by michaelamon on November 25, 2009


BY MICHAEL AMON
Nov. 17, 2007 P. A4
State and Nassau health authorities could have subpoenaed the medical records of a Plainview doctor who they say may have exposed hundreds of patients to bloodborne diseases by reusing syringes, but decided instead to negotiate a voluntary agreement – a process that ended up taking eight months.

State Department of Health officials – who have come under mounting criticism for not more quickly making public the lapses in infection control by Dr. Harvey Finkelstein – said yesterday they planned as far back as October 2006 to notify all of the physician’s patients that they were at risk for hepatitis B and C, and HIV.

Finkelstein initially agreed to provide some names, but not nearly as many as authorities wanted, and he hired attorneys to fight the broad notification. Still, the state decided against issuing subpoenas.

“Just because you issue a subpoena doesn’t mean you get what you want,” said state Health Department spokeswoman Claudia Hutton. “It could get tied up in court, where a judge could say ‘You’re nuts.’ We wanted to cast as wide a net as possible and we wanted his cooperation to do that as quickly as possible.”

Acting Nassau Health Commissioner Abby Greenberg, who suggested to the state the idea of subpoenaing the records early this year, ultimately agreed with the state’s decision, a spokeswoman said. Attempts to reach Nassau County Executive Thomas Suozzi, who has criticized Finkelstein for hiring a lawyer and delaying the notification process, were unsuccessful.

But negotiating with Finkelstein’s attorneys did not produce a list of names until July.

Elected officials have blasted state and county health departments for taking nearly three years to make public Finkelstein’s infection control lapses. In January 2005, health officials witnessed Finkelstein using syringes multiple times, which can contaminate multidose medicine vials.

“The notification process was outrageously long,” said state Sen. Carl Marcellino (R-Oyster Bay), who has a constituent who contracted hepatitis C in Finkelstein’s office.

State Sen. Kemp Hannon (R-Garden City), chairman of the Senate Health Committee, announced yesterday that he would hold hearings in December to determine why the notification process took so long.

And two upstate legislators announced a bill yesterday requiring the state health commissioner to notify all patients of physicians who engage in “reckless conduct” such as reusing syringes and infecting patients.

Hutton said the health department staff “truly don’t believe” that they could have notified patients and the public faster than they did.

“There are some who would argue we went overboard by doing this letter because the risk of transmission is so low,” Hutton said. “We would argue that patients have a right to know if they are put at any risk.”

Finkelstein, 52, was not cited for violations by the Office of Professional Medical Conduct in September, though he agreed to have his infection control procedures monitored for three years.

Finkelstein gave the state Health Department patient names in early 2005, allowing the state to notify 98 patients who had been injected around the same time as two hepatitis C cases were caused.

After much internal debate over several months, the health department decided on Oct. 6, 2006, to notify all of Finkelstein’s patients, and the physician balked, officials said. He hired lawyers to fight the request, which he believed would affect his business, officials said.

“Initially Dr. Finkelstein was very cooperative,” Hutton said. “Then later on he retained an attorney and was not as cooperative.”

Andy Kraus, a spokesman for Finkelstein, said that the health department’s initial request was “nearly impossible” to fulfill because it asked for “thousands” of records going back more than a decade.

While the state needed permission to look at the records kept at Finkelstein’s private office, which is not licensed by the state, they had easier access to records at the state-licensed clinics where he had given injections. They quickly learned, however, that infection controls in those facilities were fine, and they didn’t need patients names.

But they still wanted to check his private office records – all of them. By the end of October 2006, Finkelstein agreed to turn over the names and addresses of about 272 patients who were “most at risk,” Kraus said.

That wasn’t good enough, Hutton said, and the two sides agreed to meet on March 7 in Great Neck. A month later, state health officials wrote a letter to Finkelstein’s lawyer, asking for a smaller number of names – those who had received injections since Finkelstein’s Plainview practice was launched in January 2000.

After asking for deadline extensions, the law firm supplied the names electronically in June and July. The state then needed four months to convert the records to its computer system – for searching purposes – and to have its notification letter cleared by lawyers. This week, the letters began to arrive at the homes of 628 patients, all but 12 on Long Island. All were urged to get tested for hepatitis B and C, and HIV.

THE LETTER

Part of a State Health Dept. letter to lawyer for Dr. Harvey Finkelstein, dated April 5, 2007, in which the department requested the names of the doctor’s patients because they may have been exposed to diseases because of reused syringes. The names were not turned over at that time, and the state declined to pursue the case with a subpoena:

“After reviewing the information obtained during the epidemiologic investigation and at the March 7, 2007 meeting, the NYSDOH has decided to notify Dr. Finkelstein’s patients who received any type of injection at his Plainview, New York practice site from the practice’s opening in 1999 through January 14, 2005. … The NYSDOH reiterates its request for all available contact and procedure information for Dr. Finkelstein’s patients who received any type of injection at his Plainview, New York practice site since it opened in 1999 through January 14, 2005. The list, preferably in electronic format, should include each patient’s name, date of birth, full mailing address and telephone number, if available.”

KEY DATES

DECEMBER 2004 Nassau County Health Department nurse notices that two of the year’s more than 1,000 cases of hepatitis C were people who had both received injections from Dr. Harvey Finkelstein.

JANUARY 2005 State investigators visit Finkelstein’s pain management clinic in Plainview and watch him work.

JAN. 31, 2005 State sends Finkelstein a letter with recommendations to improve his infection control practices.

MAY 23, 2005 State Health Department sends letters to 98 Finkelstein patients who had received injections around the same time as two patients who had contracted hepatitis C.

MAY 30, 2006 State and county health departments hold conference call on the case with the federal Centers for Disease Control.

JULY TO OCTOBER 2006 State discusses notifying all patients

who had received injections from Finkelstein between Jan. 1, 2000, and Jan. 15, 2005.

OCT. 6, 2006 State asks Finkelstein for thousands of his patients’ names.

MARCH 7, 2007 State Health Department officials and a Nassau County health department nurse meet with Finkelstein and his lawyers in Great Neck.

APRIL 5, 2007 In letter to Finkelstein’s attorney, Jean Quarrier, a state Health Department attorney, and Barbara Wallace, director of the department’s bureau of communicable disease control, the state again says it has “decided to notify” Finkelstein’s patients. It asks for contact information for Finkelstein’s injection patients from 2000-2005 and that it be sent “as soon as possible.”

NOV. 10, 2007 State sends letters to 628 people who received injections at Finkelstein’s practice from Jan. 1, 2000 to Jan. 15, 2005.

State and local health officials have provided phone numbers for former patients of Dr. Harvey Finkelstein who are concerned they may have been exposed to hepatitis B or C, or HIV.

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