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.

On September 11, 2009 twenty-year-old Elena Shapiro, a Carolina Ballet ballerina from Winston-Salem, North Carolina, lost her life to a doctor who was allegedly driving under the influence of alcohol (DUI). Dr. Raymond Cook hit Ms. Shapiro as she was getting on the highway. Cook was arrested on suspicion of DUI and was initially charged with death by motor vehicle, DUI, failure to reduce speed, and careless and reckless driving. The doctor is an otolaryngologist and plastic surgeon and an assistant professor at the University of North Carolina School of Medicine. Cook, who is estimated to have been driving at 85 mph, has surrendered his license to practice medicine. The charges have since been amended to include second degree murder.

While, admittedly, a driver does not have to be a doctor wreak such havoc while driving drunk, what if Dr. Cook had been in the operating room instead? Dr. Castro-Moure, the chief of neurosurgery at a California hospital, had to be wrestled to the operating room floor one night before being arrested by police. Staff reported that the surgeon had thrown a fit when he was barred from operating by a nurse who suspected that he was drunk.

Castro-Moure initially became combative while attempting to begin surgery on the spine of a man who had fallen two stories. Although two other doctors had declared the injuries to be not life-threatening, and thus not requiring immediate surgical intervention, Castro-Moure disagreed and began yelling and swearing when told that the necessary equipment would need to be transferred from a different hospital. Once the equipment got to the operating room, however, a nurse refused to proceed with the surgery until the instruments were sterile. The surgeon then physically resisted efforts to subdue him; the 45-year-old Highland Hospital doctor was arrested on suspicion of being under the influence of alcohol and interfering with the duty of police officers. The consequences of a drunken surgeon operating on the spine of an injured man are almost too horrific to even contemplate.

However, medical boards all across the country must address these and other disasters waiting to happen on a daily basis. Studies have found that illicit drug use among doctors is lower than in the general public. According to a recent story in the Harvard Review of Psychiatry, however, doctors are five times more likely to misuse prescription medication. Specialties that place doctors in contact with addictive drugs, combined with ease of access to drugs and stress, result in a nightmare scenario for those susceptible to addictive behavior.

Substance abuse, alcoholism, and mental illness among doctors are not a new phenomenon. In 1958, the Federation of State Medical Boards (FSMB) declared that drug addiction and alcoholism among physicians was a disciplinary problem that needed to be addressed administratively. The FSMB requested that a program be developed for the monitoring and rehabilitation of substance abusing doctors that would serve as a model for state medical boards. The request was ignored.

Years later, the AMA Council on Mental Health produced a paper entitled “The Sick Physician: Impairment by Psychiatric Disorders Including Alcoholism and Drug Dependence” which called attention to this growing public health crisis. In 1974, a model was developed that offered a treatment-based alternative to discipline in recognition of that fact that drug and alcohol addiction is an illness. Today, the Federation of State Physician Health Programs (FSPHP) also focuses on the rehabilitation and monitoring of addicted doctors.

Once upon a time, any doctor who behaved like Castro-Moure would likely have lost his license to practice medicine permanently. Not only would such forfeiture have clearly destroyed his career, but it also would not have encouraged the surgeon to seek treatment for his alcoholism. By 1980, most states had implemented a physician health program to address the substance abuse crisis among the medical community, with a focus on managing and monitoring practicing doctors who are addicted to drugs or alcohol. The programs seek to save the lives and careers of doctors suffering from drug or alcohol addiction and protect the public by ensuring that only clean and sober doctors are licensed to practice medicine. A study of these programs has shown that doctors who are drug addicts or alcoholics actually can be treated and allowed to resume the practice of medicine.

The physician health programs (PHP) are based on a model of intervention, followed by a combination of referral for enrollment in a treatment center and random monitoring. Doctors who fail to comply, however, require quick redress in order to eventually beat their addictions. A recent study by the University of Florida found that over seventy-five percent of enrolled doctors stayed off drugs or alcohol, regardless of the particular type, during a five year monitoring period. Enrollment in the programs is almost equally divided between those who are required by medical boards, employers, or malpractice agencies to participate and those who self-refer or are referred by friends and family.

Once enrolled and under contract with a PHP, the doctor must attend group and individual therapy sessions for both the addiction and any accompanying mental health issues, residential and outpatient treatment center programs, be subjected to random visits from monitors at work, and participate in 12-step programs. Doctors are responsible for paying for the cost of the treatment center and treatment programs, drug testing, monitoring, and follow-up care.

The UF study evaluated roughly 900 doctor participants in 16 state PHPs over a six year period, which is an unprecedented scope. Successful participation in the program required abstention from drugs or alcohol for five or more years, along with random drug testing. Failures were reported to medical boards quickly; approximately 20% experienced at least one incident of failure during the study. Researchers found that, at least within the physician community, best results were achieved by a combination reward-and-punishment system. For instance, a clean drug test resulted in permission to return to work while a positive test called for immediate suspension and put one in danger of losing their license. In the five to seven years after starting treatment, three quarters were actively practicing medicine without drug abuse or malpractice. In the end, researchers determined that longevity of treatment had the most lasting effect on the level of success.

Sources:

http://spotlight.vitals.com/2009/09/dr-raymond-cook-causes-fatal-accident-and-charged-with-dwi/

http://www.huffingtonpost.com/2009/09/16/raymond-cook-doctor-kills_n_288337.html

http://findarticles.com/p/articles/mi_qn4176/is_20060309/ai_n16160545/

Millie Anne Cavanaugh, Esq. is a Los Angeles attorney specializing in immigration and naturalization law; she is a former insurance defense attorney. She is licensed to practice law in California and Massachusetts. 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.