The Doctor is Drunk

Issue March/April 2019 March 2019 By Joel Rosen
Health Law Section Review

RosenJackie had a drink at lunch with a friend and went back to work at the hospital. She’s been a nurse for 30 years. Her job is mostly administrative. She wasn’t going to see patients that day. Someone smelled alcohol on her breath. Nobody said she seemed intoxicated. She submitted to a test, which showed a blood alcohol level of .05 percent.

Jackie had never been in trouble before. She had stellar performance reviews. After the event, she was evaluated for substance abuse and didn’t have a problem. The New Hampshire Board of Nursing (BON) offered her a reprimand with 12 months of probation. She signed the settlement agreement, but when it went back to the BON, they decided instead to suspend her for three years. Jackie is 60 years old. She will never go back to nursing after a three-year suspension.

This is a real case in my office, although I changed the client’s name. This article is about health care in Massachusetts — not New Hampshire — but this sad story crystalizes two questions that remain open at the different licensing boards of both states. What does it mean to be “impaired?” And how should boards deal with impaired practitioners?

What is Impairment?

Medical professionals cannot practice while impaired. Doctors, for example, are forbidden from “practicing medicine while the ability to practice is impaired by alcohol, drugs, physical disability or mental instability.1 The regulations do not define “impairment.” The American Medical Association says an impaired physician is one who is “unable to practice medicine with reasonable skill and safety to patients.”2

A person can’t drive with a blood alcohol level over .08. A practitioner whose blood alcohol level is under the legal limit cannot be automatically considered impaired. In terms of driving, someone may be impaired if “his alertness, his reflexes, and that quick reaction that is necessary in order to drive safely in our community, has been affected by intoxicating liquor.”3

But driving is not surgery, and the standards may be different. Doctors and nurses shouldn’t drink when they are on call or about to start a shift, even if they are below the limit for driving. The BON could enact a regulation that forbids consuming alcohol before a doctor has clinical responsibilities. But I have found no such policy and no standard for determining if a doctor is impaired at any given moment.

A doctor is also considered impaired if he or she is “habitually drunk or … addicted to, dependent on, or a habitual user of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs having similar effects.”4 This is a separate regulation, but it vindicates the same policy. An addiction is something that can’t be controlled. Eventually, substance abuse can affect the doctor’s work, and a patient may be hurt.5

It is amazing how many doctors have substance problems. About 6 percent of physicians have drug use disorders and 14 percent have an alcohol use disorder.6 Anesthesiologists and emergency room doctors are three times more likely to abuse substances than the general population of physicians.7

Nurse Jackie was under the legal limit. She didn’t seem drunk. She was evaluated and had no substance abuse problem. She had no clinical responsibilities that day. There is no evidence that Jackie was impaired.

The Sanction

The Board of Registration in Medicine (BORM) requires at least 18 months of demonstrated sobriety before an impaired doctor can return to work. This requirement is not in writing. It’s just what the board has been doing for the past several years. And there is no evidence that 18 months make patients safer than six months or 24 months.

The BORM generally seeks a voluntary agreement not to practice. If the doctor does not sign this, the threat is summary suspension. Either way, the doctor stops practicing and wisely makes an appointment with Physician Health Services (PHS), a non-profit corporation that works closely with the BORM and supports doctors with health issues, including substance abuse. The doctor is evaluated and usually sent to an out-of-state counseling program for six to 12 weeks. When the doctor successfully completes the program, he or she generally signs a monitoring contract with PHS. The contract requires a breathalyzer three times a day and random drug testing. It also requires psychological counseling and other support with recovery.

The counseling programs test the doctors every day, so you would think the 18 sober months would include time in the program. They do not. The BORM starts the clock running after months of drug testing and counseling, when the doctor signs the PHS monitoring contract. The doctor can’t even apply for reinstatement until the additional 18 months are over. Several more months will go by before the BORM hears the case and issues a decision. The practical effect is that a doctor can be out of work for two years or more after having a couple of drinks at the wrong time, even if no patients were harmed.

“With the Mass. board, there has been a creeping escalation with the level of sanction,” attorney Scott Liebert said. When Liebert was chief of litigation for the BORM in 1992, “The standard time out for a doctor practicing while impaired was six months followed by five years of monitoring. They gave the doctor credit for the time he was monitored in recovery. Somehow the default became 18 months. It didn’t happen in a thoughtful, planned way.”

It’s not just that the Massachusetts board has imposed different sanctions at different times. It also imposes different sanctions than other states. Here are a couple of Florida cases with extreme facts and moderate sanctions.

Dr. Major was involved in a stormy emotional fight with her former roommate…. She went drinking at various bars after the aforesaid fight and became publicly intoxicated to the extent of a .235 blood alcohol reading…. She had a physical and emotional fight with another companion while on this drinking spree and was stripped of much of her clothing…. Police arrested her in a state of undress on the street for public intoxication…. She violently resisted this arrest while in a state of extreme intoxication and was … involuntarily committed for the night.8

Dr. Major was already on probation with the Florida BORM when this happened, after losing her license once. The BORM extended her probation for three years. She was free to return to practice. Here’s another one:

Dr. Bell had a lady friend who lived in a trailer next to him. Bell believed that the friend had stolen his carton of cigarettes and bottle of vodka while Bell was “asleep.” He went to retrieve these items and entered the friend’s trailer through the floor air duct. An altercation ensued involving a butcher knife…. At the time of the arrest, Bell’s trailer was unkempt and strewn with empty liquor bottles.9

Dr. Bell got a one-year suspension with conditions, followed by five years of probation.

The point is not that the Florida BORM was right in imposing probation, where the Massachusetts board would have suspended a doctor. The point is that there is no way to know who is right, because the boards have no evidence-based standards for evaluating what the doctor needs. “There is no evidence that a doctor does better with a longer term of suspension,” Liebert said. The New Hampshire board was apparently willing to reprimand Nurse Jackie but, with no explanation, escalated to a three-year suspension.

A licensing board’s function is not retribution. Its function is to protect the public. Doctors should be out of practice for long enough to ensure they can safely return with monitoring, counseling and other conditions appropriate to ensure their sobriety. The suspension should bear a reasonable relationship to the severity of the doctor’s problem and what help he or she needs to recover. The sanction imposed should be based on something other than the general notion that more is better.

Doctors are scientists. They are trained to assess problems empirically and to practice evidence-based medicine. No doctor would argue that, if a patient is responding to a medication, the dose should automatically be doubled. But the Massachusetts board has trebled the presumptive suspension of doctors without explaining how that helps doctors to recover.

While we have been talking about the board of registration in medicine, the same principles apply to the boards of nursing, dentistry and other health care professions. Our licensing boards need a consistent definition of impairment so licensees know in advance what conduct is forbidden. And when a doctor has a problem, the board should allow the doctor to return to work when it is safe. It should not impose a minimum sanction unless there is a scientific basis to do so. 

Joel Rosen is the principal of Rosen Law Office PC. The firm assists health care professionals with licensing disputes and practice issues.

.........................................................

1 243 CMR 1.03(4)(a)(4).

2 AMA American Medical Association. “The Sick Physician: Impairment by Psychiatric Disorders, Including Alcoholism and Drug Dependence,” JAMA 1973223684–687. [PubMed]. This article deals with substance abuse and not mental or physical diseases.

3 Com. v. Gill, 56 Mass. App. Ct. 1109 (2002)

4 243 CMR 1.03(4)(a)(5).

5 See the list of work-related symptoms. Ross, Stephen, M.D., “Virtual Mentor,” AMA J. Ethics. 2003; 5(12): 420-422 (2003).

6 Regier, D.A., Farmer, M.E., Rae, D.S., et al, “Comorbidity of mental disorders with alcohol and other drug abuse,” JAMA. 1990; 264(19): 2511-2518.

7 Mansky, P.A., “Physician health programs and the potentially impaired physician with a substance use disorder,” Psychiatr Serv. 1996; 47(5): 465-467.

8 Major v. Dept. Prof. Reg. Bd. of Medicine, 503 So.2d 411, 411 (1988).

9 Bell v. Dept. Prof. Reg Bd. of Medicine, No. 92-2204 (1992).