Physician Impairment - Consequences and Duties

April 1, 2015

Preparing for the worst possible scenarios by maintaining legal documentation is the only way a medical group can be prepared to protect itself.

Physician impairment due to drugs or alcohol is a serious issue. When physician practices are forced to deal with an impaired physician practice owner or employee, the decisions to be made and the impact on the practice can be significant. What can be done when a practice believes it has an impaired physician and how can a practice best prepare? Here are some things to consider:

1. Duty to report. Does the practice have a duty to report the physician's impairment and to whom is the report to be made? States may or may not have a requirement to report a physician who is suspected of being impaired and this can create uncertainty for those who are concerned about an impaired physician. Additionally, there is always concern that an impaired physician will deny accusations of being impaired and accuse the practice or its partners of disparagement. Since the goal is to have the physician stop practicing while the practice determines the best course to take, it is helpful if the practice has updated employment agreements, policies, and/or other governing documents that allow termination, suspension, or similar options when a practice reasonably believes a physician is impaired. While larger groups are more likely to have such policies in place, smaller groups often have non-existent, outdated, or inadequate documentation. Every practice should also be aware of what its state may require with regard to reporting impairments, theft of drugs, self-prescribing, and other possible conduct related to an impaired physician.

2. Suspension of hospital privileges. If a practice is affiliated with or directly contracted with a hospital, an impaired physician will often come to the attention of the hospital, which can lead to temporary suspension of staff privileges or other investigation. While this may assist the impaired physician in recovery, the hospital's policies on impairment are usually very specific about the goal of assisting the physician in being rehabilitated and returning to practice. This may or may not be aligned with the practice's intentions toward the physician. Many impaired physicians have stolen from a practice, put the practice at risk of malpractice claims, or in other ways impacted the practice's reputation and staff. A practice cannot rely on a hospital's policies to help the practice handle an impaired physician and must make sure its own policies are in place so it can decide whether it wishes such a physician to be able to return to the practice.

3. Accommodation under the ADA. Under federal and many state laws, drug and alcohol addictions are treated as disabilities, which can require practices of a certain size to accommodate the needs of physicians going through treatment. Knowing the rights and obligations of your practice is essential in developing a strategy to handle an impaired physician situation. The law must be taken into consideration in drafting any strategy to handle an impaired physician.

4. Adequate policies and documentation. In my experience, the most difficult situation to address arises with a practice that lacks documents to provide guidance on how to handle an impaired physician, particularly an owner. Does the practice need to keep paying the impaired physician when he is in treatment? What if you are paying another physician to cover the workload? Can an impaired physician still be paid profits of the practice? What if you do not want the impaired owner physician to return to work, even when he is in recovery? Other than specifically written documentation that allows an owner physician to be terminated or voted out (of course this does not work well in a two person group), it can be difficult to get rid of an owner physician without intervention of a court, which can be a costly and acrimonious process.

Preparing for possible future events is something most physicians do not adequately consider. When partners are healthy, amicable, and otherwise in a trusting partnership, these concerns seem like they can be put off. Unfortunately, an impaired physician in a group practice can affect its reputation, stability, and financial security. Preparing for the worst possible scenarios by maintaining proper, legal and updated documentation is the only way a group can be prepared to protect itself.