By Scott Brinton
The nurse, he said, immediately sends home warning letters to the parents of other children.
So why, Fuschillo wondered, did the state Department of Health wait 34 months to tell more than 800 patients, including a number of South Shore residents, that their Dix Hills doctor had put them at risk of contracting the HIV and hepatitis B and C viruses by reusing syringes in his practice?
Fuschillo, a Republican from Merrick, was speaking during a Senate hearing last Thursday at Farmingdale State College to gather ideas on how to upgrade the state's system of reporting medical mistakes and malfeasance to the public.
Sen. Kemp Hannon, a Republican from Garden City who is chairman of the Senate Health Committee, convened the forum. It came only a month after the state health department revealed that from January 2000 to January 2005, Dr. Harvey Finkelstein, an anesthesiologist and pain management specialist, reused plastic syringe barrels and drew medication from large, multi-use vials, rather than single-dose vials, at his Massapequa practice and possibly his Melville office.
After visiting Finkelstein's Island Orthopedic Sports Medicine and Physical Therapy Clinic in Massapequa in January 2005, state health officials warned the doctor to reform his injection practices, but allowed him to continue practicing medicine - and never informed the public about the possibility of infection. Health officials have since followed up to confirm that Finkelstein no longer reuses syringes. To date, the health department has not sanctioned him.
State investigators have confirmed one case of hepatitis C infection caused by the reuse of syringes at Finkelstein's practice. No patients were infected with HIV or, apparently, with hepatitis B. Officials note, however, that six of Finkelstein's patients have tested positive for hepatitis B and six more for hepatitis C, but authorities will likely be unable to prove that Finkelstein infected them.
If you need change, ask
Dr. Richard Daines, the state health commissioner, answered questions for nearly two hours at the Senate hearing. The panel of four senators and one assemblyman noted repeatedly that Daines was not commissioner when the health department began investigating the Finkelstein case in 2004, so Daines is not responsible for how the case was previously handled, but he would be held accountable for future cases.
Fuschillo told Daines, "If you need statutory changes, ask for it. If you need more staff, ask for it. We're dealing with human lives."
The senator said he believes the state should immediately notify the public about any doctor who has potentially infected multiple patients with life-threatening illnesses, such as hepatitis C in the Finkelstein case.
Eighty percent of people infected with the hepatitis C virus develop no symptoms, Daines said. Of the remaining 20 percent, roughly half to three-quarters suffer chronic liver infections and develop liver disease, usually over a period of decades, possibly leading to death. Roughly 1.6 percent of Americans carry the hepatitis C virus.
The state health department first learned of Finkelstein's syringe practices in 2004. In December that year, the Nassau County Department of Health identified two cases of acute hepatitis C infection through routine surveillance of laboratory reports. The county health department determined that both individuals had had spinal injections performed by Finkelstein.
The state health department dispatched a team of doctors to Finkelstein's Massapequa office to investigate in January 2005. Daines said that, in front of investigators, Finkelstein reused syringe barrels, with medication drawn more than once from large vials. "As the physician gave injections to patients," Daines said, "the investigators observed the physician, on several occasions, appropriately changing the needle tips between injections on the same patients, but reusing the same syringe barrel, which had been in contact with the hub of a needle placed in the patients."
The state then began an epidemiological investigation to determine if, in fact, Finkelstein had transmitted hepatitis C and other blood-borne viruses. That investigation lasted more than two years.
During that time, the state identified 98 of Finkelstein's patients who were at greatest risk of infection, and worked to track them down to notify and test them, but Finkelstein's other patients had no knowledge of his syringe practices.
On Jan. 7, 2005, state epidemiologists called the health department's Office of Professional Medical Conduct to ask whether Finkelstein had had any problems with "infection control" in the past. The answer was no. The state's epidemiological department and the OPMC then did not speak on the Finkelstein case for seven months.
"The first and primary lesson that emerges is that there must be an established system of communication between OPMC and whichever division in the vast [health] department is responsible for originating" an investigation of a physician, Daines said.
Why not notify?
When asked why the state did not notify all of Finkelstein's patients of possible infection at the outset through the media, Daines said the answer was "philosophical" in nature. Should the state health department have immediately notified every patient, potentially causing widespread panic, when it was unsure whether Finkelstein had spread hepatitis C or other viruses? Or should it have waited until it was relatively certain that he had infected a patient with a blood-borne disease? Ultimately, the state chose the latter course.
Universally, the lawmakers said the health department should have erred on the side of caution and immediately notified all patients of possible infection, which would have allowed them to act early to protect their health if necessary.
Daines, however, said the law did not allow the health department to do so. "The public health law sections creating the OPMC require that an investigation file be kept confidential, including the name of the doctor who is the subject of an investigation, unless and until there is a finding of misconduct by the Board of Professional Medical Conduct."
Sen. Eric Schneiderman, a Democrat from Manhattan, said he believes the system protects doctors, not patients, and that must change.
During his prepared testimony, Daines said the health department "continues to support greater transparency and will pursue the possibility of a statutory change."
When questioned by Schneiderman, though, Daines said he was "not sure" how the state Legislature could rewrite the law to require that all of a physician's patients be notified of a medical error leading to a possible infection.
Schneiderman retorted, "I'm happy to report that it's not that hard."
A 'failed' system
Assemblyman David McDonough, a Republican from North Merrick, said he had a hard time finding Finkelstein's 10 malpractice settlements on the state health department Web site, and had to call the department for assistance in navigating the site. "It's about impossible for the average consumer, or patient, to find this information," McDonough said.
Daines said the health department would look into streamlining the site to give the public better access to critical information, such as malpractice suits.
Sen. Carl Marcellino, a Republican from Syosset, said Finkelstein got off easy. "He doesn't even know he's doing the wrong procedure, and he keeps doing it, and all he gets is a slap on the wrist ...," Marcellino said. "I understand doctors have rights, and doctors are getting sued all over the place. Nothing happened to this man. You can only say that the system failed."
Hannon said the Senate would look into measures that the state could take to improve the health department's reporting practices when a physician is found to have made a mistake.
"We're in a whole different era," Hannon said.
Comments about this story? Brinton@liherald.com or (516) 569-4000 ext. 203.
What other states do
to report medical errors
Arthur Levin, director of the non-profit Center for Medical Consumers in New York City, spoke at length during last week's state Senate hearing on reporting medical mistakes and malfeasance to the public. Levin said that New York's notification practices are geared toward protecting doctors.
"The trend in most states has been to make the [reporting] process more transparent and less opaque," but not in New York, Levin said.
Along with the New York Public Research Interest Group and the Citizen Advocacy Center, the Center for Medical Consumers recently sent surveys to medical review boards in all 50 states, asking when and how they report problems with physicians to the public.
Thirty-eight states responded. To the question of whether patient complaints are reported, 34 said no and four said yes.
When formal charges are brought against a physician, 33 said they report them to the public; five states do not, one of them being New York.
"The public wants - and deserves - a much more transparent system," Levin said.
