I recently spoke with a physician seeking guidance concerning a colleague in her office she believed might be impaired by drugs. She was alarmed at the risk this posed to patients, as well as her practice’s liability, and wanted to report the physician to her superiors.
In this particular case, we decided together there was insufficient factual knowledge of any wrongful activity to support my client taking action, without further evidence. As I have discussed before, presenting information to a third party without factual evidence, when such information can be damaging, will open a physician to liability for defamation.
Because physicians are typically afraid to report their suspicions, and can actually face liability for doing so, how should physician drug use in the workplace be addressed?
Given the subversive habits of drug users, how can practices catch physician drug-users before a patient is harmed, and do so in a manner that can help a provider receive assistance he may require?
The use of drugs and alcohol by physicians is a well-known public health risk. Statistics indicate that physicians are about as likely as the general public to abuse alcohol or illegal drugs, but five times more likely to misuse prescription drugs, according to the University of Florida’s Center for Addiction Research and Education. In a profession where clear thinking, decision-making, and a steady hand are all essential tools, physician drug use is a grave concern.
To address this growing problem, experts around the country have argued that it’s time physicians, like others who have roles affecting public safety, be randomly drug and alcohol tested. After all, why are physicians treated differently than pilots or bus drivers when they all have jobs that can hurt innocent victims?
California is taking a stab at addressing the problem of physician drug use, and will present its residents with the issue of random physician drug testing on a ballot this November, known as “Proposition 46.” Apparently many in the medical industry don’t like Proposition 46, and The New York Times reports that the medical industry, including doctors, hospitals, and medical insurance companies, have already raised more than $35 million to defeat it.
The problem with Proposition 46, in particular, is that the motivation for the measure appears to be driven by lawyers. In fact, the proposed law would mainly impact the malpractice industry, increasing the ceiling for pain and suffering awards in medical negligence suits from $250,000 (set by the State legislature in 1975) to $1.1 million to reflect inflation.
Under this new law, results of random drug tests on doctors would also be reported to the California Medical Board and hospitals would be required to report the names of doctors suspected of abusing drugs or alcohol.
It’s important to note that those who oppose Proposition 46 do not necessarily believe that drug testing of physicians is inappropriate, just that it should not be applied in the manner developed by California state trial lawyers. Instead, it should be focused on helping impaired physicians and protecting patients in a manner that physicians and others in the industry can support. This requires some thoughtfulness in developing an acceptable approach, which many believe Proposition 46 lacks.
There is no doubt that an issue of drug and alcohol abuse in the medical profession exists. The vote in California will be important in how it impacts other state laws around the country.