As a result of the expose, an independent monitor was appointed by the California legislature to audit the Board’s enforcement practices. In November 2005, a report was published that specifically addressed the flaws in the physician addiction diversion program. In 2007, the Bureau of State Audits conducted its on investigation and found, in sum, that diversion neither rehabilitated doctors nor protected the public. One of the authors of the OC Register series, William Heisel, has written about the aftermath of the diversion program downfall in “Doctors with addictions left hanging as diversion program dies” in reportingonhealth.org.

The investigating agencies revealed multiple criticisms of the 27-year-old diversion program. For instance, doctors were not always required to stop treating patients if they failed a drug test even though policy required it. In addition, the evaluation committee often determined that a drug-test failure did not constitute a relapse without feeling the need to explain their position or have the results reviewed by a medical officer. In sum, the program did not adequately and consistently monitor substance-abusing doctors. Problems ranged from chronic staffing deficiencies to failure of the board to oversee administration of the program. The study found that drug tests were only conducted on weekdays, possibly enabling “weekend” abusers to avoid detection. While it was first thought that confidentiality would encourage voluntary participating in the program, that did not happen; the vast majority of participants did so to avoid disciplinary action.

In order to fully illustrate the failure of the diversion program, Heisel conducts a very thorough case study of one very sick California doctor. The doctor is a psychiatrist who suffers from alcoholism, bulimia and kleptomania. In 2004, while still in residency at an Ivy League medical school, he is arrested for DUI, pleads guilty to a misdemeanor and is placed on three-year judicial probation. Over the course of the next four years, he will engage in dangerous and inappropriate behaviors, all under the confidentiality shield of the diversion program. His patients are never told. He will have a total of three more arrests and be placed in treatment two more times. Six months after discharge from his last stay at an in-patient treatment center, he is given his medical license back with the caveat that he continue his treatment and Board monitoring.

Six months later, in June 2008, the diversion program is abolished and monitoring ceases. Is this a good thing? The jury is still out. Had the diversion program continued, this doctor would have continued his confidential participation and patients would have had no way of knowing that their psychiatrist had pretty significant mental problems of his own. Without the program, if he slips again, he will be entirely at the mercy of the disciplinary system. His patients will be notified, but his career will be in dire jeopardy.

Addressing Substance Abuse in Physicians after the End of the Diversion Program

Since 2008, California doctors have been largely on their own if they suffer from addiction to drugs or alcohol. Those with the motivation to seek treatment can choose a treatment center and enroll. As with all medical matters, a physician’s attendance at a treatment center is confidential and will not be brought to the attention of the medical licensing board, or the public, unless a patient complaint is filed.

California doctors no longer have a safe way to undergo treatment for substance abuse while maintaining their license if they end up in the disciplinary system. If the medical board finds clear and convincing evidence that a violation of the Medical Practice Act occurred, the case is referred to the California Attorney General’s Office for filing. The result could be revocation or surrendering of the license, probation or some other action. Upon filing, a copy of the accusation is automatically made public on the Board’s web site.

If placed on probation, the physician must submit to random drug screening, refrain from using drugs or drinking alcohol, and submit to psychiatric evaluation. Regulations enacted a few months ago mandate a minimum of 104 tests the first year and at least 50 tests a year thereafter, for an indefinite period of time. Doctors will no longer be able to craft a strategy to avoid testing; the board must give approval for alternate drug testing locations when going on vacation or leaving town. A positive drug test will mean an immediate month’s suspension from work and a change in license status to “inactive,” which will be disclosed publicly. There are currently a little over 100 doctors on probation in California. Without a viable discipline diversion program, experts fear that California doctors with substance abuse issues will stay hidden until they eventually harm a patient.

http://www.reportingonhealth.org/blogs/doctors-addictions-left-hanging-diversion-program-dies

Millie Anne Cavanaugh, Esq. is licensed to practice law in California and Massachusetts. She is a former insurance defense attorney who is now an immigration attorney. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.