Doctors, Medical Staff’s Drugs Put Patients at Risk

Written by Beth W. Kanik, Esq.

In 1999, Dr. Abraham Verghese wrote of his relationship with a physician who succumbed to his drug addiction in spite of all efforts to help in “The Tennis Partner”. Then, it was thought that a physician addicted to drugs was an anomaly. Nearly 20 years later, published studies have shown that each year, more than 160,000 health care providers will misuse the drugs that they have access to. Easy access to controlled substances not only puts the individual provider at risk, but also brings risk to their patients. Just as this nation’s leaders were slow to recognize the opioid crisis enveloping the nation, courts and medical societies have been slow in protecting the patients from their own medical providers.

One way medical societies and boards tried to address physician mis-use was through voluntary diversion programs. Based on widely accepted estimates of substance abuse among medical professionals, the programs typically aimed to enroll 1-3% of a state’s health care practitioners. Even at 1%, that adds up to some 50,000 people nationwide: Nearly 9,000 of the nation’s 878,000 licensed physicians, 27,000 of 2.7 million working nurses, and 15,000 or so medical technicians, nurse assistants and other clinical staff. And the programs have not reached anywhere near that many. In California in 2007, the state had 126,000 licensed physicians. But only about 250 (less than 0.2%) were in the board’s substance abuse treatment and monitoring program — far less than the 1,260 that would be a minimal estimate of the population needing assistance in 2007. In an effort to encourage self-reporting, $ 2 million was endowed to the Georgia Board of Nursing in 2014 to implement a mandatory reporting system. It is too soon to tell, however, if that endowment had changed anything.

Another way that State Medical Boards tried to attack the issue of drug addiction was through internal discipline. Recently, the California Medical Board began its investigation of drug use by the former dean of the University of Southern California’s Medical School although the investigation was triggered by newspaper accounts of his mis-use. Each year, the Georgia Medical Board either suspends, fines, or compels providers identified as substance abusers to attend rehabilitation programs if the provider wishes to either continue to treat the public. However the Georgia Medical Board have also come under attack by the press for being too slow and doing too little to attack physician mis-use.

A final way is through the court system, although certain courts have refused to allow a patient access to a provider’s substance history. In 2000, the Georgia Supreme Court in Albany Urology Clinic v. Cleveland, 272 Ga. 296 (2000) held that there was no independent duty placed upon physicians or other healthcare professionals to disclose personal life factors which might adversely impact their performance. Cleveland has been cited with approval by courts in Alabama, Colorado, Delaware, Indiana, Maryland and Pennsylvania. . However, it is unknown whether President Trump’s declaration of a “national” emergency over the opioid crisis will lead courts to re-evaluate the duty to disclose a physician’s personal life factors—i.e. opioid or other drug use—to a patient.. We should be prepared for such instances to make their way through the court system and anticipate the revaluation by the courts of a “public’s right to know”.