Impaired Health Care Practitioners: Help the Healer Heal Himself
September 1, 2010 10 minutes read
Impaired Health Care Practitioners: Help the Healer Heal Himself
Substance abuse risks multiply when ED care delivered by impaired clinicians
By Daniel M. Kincheloe, Esq. and Timothy A. Litzenburg, Esq., Hancock, Daniel, Johnson & Nagle, P.C., Richmond, VA.
The abuse of drugs and alcohol is a significant and troubling problem within the medical community. Without identification and proper treatment, impairment due to substance abuse inevitably results in a downward spiral that ultimately impacts the workplace. The danger, of course, is multiplied when the impaired person is responsible for treating critically ill or injured patients in an emergency department (ED) setting. It is imperative that medical professionals remain aware of this danger and protect against it both for the sake of ED patients and the health care providers themselves.
Drug and Alcohol Abuse Among Health Care Providers
Substance abuse is formally defined by the DSM-IV as one or more of the following symptoms that develop within a 12-month period: recurrent substance use resulting in repeated failure to fulfill work, school, or home obligations; substance use in physically dangerous situations; substance use that results in legal problems, such as drug-related arrests; and continued use of substances despite adverse consequences.1 Reports of substance abuse and concern about impairment in the medical community have been prevalent for the last century.2 Although the term "impairment" was once used only in cases of gross dereliction of duty and chronic absenteeism, the definition has been expanded over time.3 Impairment is now defined as an enduring condition that, if left untreated, is not amenable to remission or cure.3
The incidence of substance abuse among health care providers has been estimated at 6% to 8%, which mirrors that of the general population.3,4 Interestingly, the rates of use (rather than abuse) of drugs by health care providers may be as much as five times higher than the background rate.3 Some specialties are more prone than others to develop substance abuse problems. Generally, the more stressful the work environment, the higher prevalence of drug or alcohol abuse within the specialty. Accordingly, ED physicians experience substance abuse at a higher rate than other physicians. One study concluded that ED physicians abuse drugs or alcohol at three times the rate of doctors practicing in other specialties.5
Alcohol or drug abuse among nurses and doctors can be related to a variety of factors, both intrinsic and extrinsic.4 Certainly, some of the personality traits that lead people to become physicians can also lead to substance abuse. These characteristics include obsessiveness, a pattern of high achievement, and overwork.4 Extrinsic factors include long work hours, time pressures, and the demands of the profession.3,4 Easy and constant access to powerful prescription drugs also plays a clear role in substance issues seen in health care providers. Not surprisingly, physicians in general tend to use benzodiazepines and opiates more than illegal street drugs.3 Interestingly, however, ED physicians have been reported to have a higher rate of use of marijuana and cocaine than health care providers in other specialities.3 Due to long hours and stress associated with the increasingly prevalent manpower shortages in health care, the rate of substance abuse and health care provider impairment is expected to grow.6
Detection and Prevention of Harm
Despite the dire consequences associated with impairment of health care providers in the ED, drug abuse problems often go unreported and untreated for a number of reasons. Substance abusers often deny their own problems. Drug-abusing physicians also tend to self-diagnose and self-treat, rather than seeking help from other professionals. Patients are often uncomfortable with the reversal of roles presented by counseling or taking action against their nurse or doctor.3 Moreover, noticeable lapses in clinical judgment and job performance are late signs of impairment. Thus, both the impaired practitioner and his patients are unlikely to take action until a drug or alcohol problem has spun out of control.
For this reason, the duty to identify impaired ED practitioners early often falls to their colleagues. Unfortunately, while substance abuse is widely considered a disease, health care providers often are hesitant to report their concerns or confront the impaired health care provider for fear of overreacting or damaging the reputation of the individual or the hospital.7 In a recent study, while 17% of physicians had direct personal knowledge of a physician who was incompetent to practice in their hospital or group, only 67% of them reported the colleague to the proper authority.8 In many cases, however, intervention by other health care professionals may be the only approach that can spur the impaired nurse or doctor to seek the help he needs.8
Pertinent Laws and Regulations
All 50 states have taken steps to facilitate identification and treatment of impaired health care providers.9 State medical licensure boards typically require that a health care provider suffering from addiction self-report the problem to the state board, and that others who are aware of a problem report their peers. To address the fear of reprisal or negatively impacting another's life and livelihood, most states have a "bypass mechanism" that allows a health care provider to report his peer directly to the state's appropriate health program.9 Typically, the impaired practitioner can engage in treatment and rehabilitation and avoid public reprimand or disciplinary action by the board. Some states exclude certain physicians from this "bypass," however, including: physicians already under discipline, those who have been terminated from a rehabilitation program, those diverting drugs from the workplace to give or sell to others, and those whose continued practice is a serious risk of harm to the public.10 The Joint Commission supports the bypass model of treatment rather than punishment. Its 2001 standards state: "The purpose of the process [of identifying and treating impaired physicians] is assistance and rehabilitation rather than discipline."10
There is also federal legislation that inures to the benefit of the impaired practitioner. The Americans with Disabilities Act provides certain protections for addicted health care providers in treatment and recovery programs. It requires that employers provide "reasonable accommodation" for an alcohol or drug addict who is participating in a rehabilitation program or has successfully completed one. It does not, however, consider a person to be under a disability because they are "currently engaging in the illegal use of drugs."11 Additionally, the Family Medical Leave Act requires employers to allow time off for qualified "treatment" of substance abuse.12
In interpreting relevant laws and regulations, courts have typically afforded a large measure of protection to health care providers' and medical boards' efforts to address substance abuse issues. By way of example, a Florida court granted qualified immunity to the director of an impaired practitioner program who suggested that a hospital suspend a physician's privileges until he underwent a substance abuse evaluation.13 During a medical malpractice case in another Florida court, a physician refused to turn over records from his own substance abuse treatment several years earlier. The court ruled that those records were privileged and confidential, and protected them from being produced in the malpractice case.14 A federal court in Hawaii dismissed a hospital from a malpractice suit in which negligent credentialing was alleged due to the surgeon's prior alcohol and drug abuse. The court found that the surgeon had undergone treatment and had complied with a monitoring program for years, and the hospital acted reasonably in granting him surgical privileges.15
Med Mal Issues and Case Studies
State laws require that health care providers comply with the standard of care, which is generally defined as what a reasonably prudent health care provider would do in the same or similar circumstances. Many medical malpractice lawsuits come down to a "battle of the experts" over whether the standard of care was breached, which is often a close question. As often as courts protect health care providers who obtain treatment, juries punish those who do not. Treatment of patients while under the influence of drugs or alcohol will invariably tip the scales heavily in favor of plaintiffs, and tends to act as a multiplier of verdict and settlement amounts.
In a 2005 Massachusetts case, a patient underwent surgical repair of his shoulder by an orthopedic surgeon. Following that surgery, the patient complained of weakness and loss of motion in the shoulder. X-ray revealed that the acromion bone had been completely resected during surgery. The surgeon had been arrested repeatedly for drunk driving in the past, and had, in fact, been sanctioned by the board of medicine for failing to disclose his driving offenses. While there was no allegation that he was under the influence of alcohol during the procedure at issue, the patient's attorneys made known their intention to bring up at trial his failure to report the drunk driving arrests. This pressure contributed to pre-trial settlement of the case in the amount of $350,000.16
In a 2000 Texas case, a patient underwent back surgery, during which he experienced acute blood loss and cardiac arrest. The patient sued the orthopedic surgeon and anesthesiologist. In addition, the patient sued the hospital for improper credentialing because the surgeon had committed malpractice in the past and was currently addicted to sedatives. While the physicians settled for comparatively modest sums, a jury assessed $12 million in punitive damages against the hospital for the credentialing claim.17
In a 1990 Maryland case, a teenage patient presented to the hospital for delivery of her baby. Fetal distress was detected and an emergency C-section was performed under general anesthesia. During the procedure, a kink developed in the oxygen hose, and the patient did not receive oxygen for five minutes. The patient sued the nurse anesthetist who was in charge of monitoring her breathing during the operation. He admitted to being under the influence of fentanyl at the time of the surgery. A jury returned a $4 million verdict in the case.18
Addressing the Problem
Considering the dangers a substance abuse issue poses to both patients and the practitioner himself, most states have established programs to prevent and treat these problems. There are two basic types of programs: "impaired practitioner programs" operated by licensure boards to deal with health care providers who have demonstrated impairment in their practice and may have inflicted harm on patients; and "practitioner health programs," often run by nursing or medical societies, which are preventative in nature and seek to help those with substance use issues before they become impaired.5
Health care providers should be familiar with the reporting requirements in their own states and institutions. In addition to state-operated programs, physician health committees often exist at hospitals, medical schools, and local and state medical societies, which serve as other options to aid the impaired practitioner in a non-disciplinary manner. If ED nurses or doctors suspect a colleague has a substance abuse problem, they should refer the impaired practitioner to the proper authority or program. In a minority of states, such reporting is required by law.3 In states where reporting is required, the reporting nurse or physician is generally granted immunity for doing so.3 But setting aside legislated reporting obligations, all health care professionals have the same ethical and moral obligations to "first do no harm" and protect against impaired ED care. Nurses and doctors should not wait until after a colleague's impairment has progressed to the point that it affects his or her job performance. Health care professionals have an obligation to report their peers when they first suspect impairment. This should not be thought of as "whistle-blowing," but rather an act of mutual help.
Treatment for and recovery from substance abuse is a multi-step process. First, some type of intervention must take place. This can take many forms. A health care provider might seek help from a physician health program, a colleague might report him to an appropriate authority, or the state licensure board might contact the practitioner as a result of some incident or report. The practitioner must then be evaluated to determine the extent of his impairment. This can take a matter of hours, or, in the case of advanced impairment, could require admission to an inpatient facility. Thereafter, the affected physician will need to undergo some type of treatment, which might include counseling, 12-step meetings, or residential treatment programs.
Fortunately, the skill set needed for successful rehabilitation has substantial overlap with the very qualities that may have led a physician to a substance abuse problem. Intelligence, strong will, and a history of high achievement will all aid the practitioner in putting these troubles behind him. As a result, overall recovery rates for physicians are routinely reported as being higher than those of the general population.19 A majority of physicians who undergo treatment are able to retain or recover their license and return to unrestricted practice.19
Conclusion
Drug and alcohol abuse disproportionately plague ED nurses and doctors. The prevalence of ED health care provider impairment and the high-stakes consequences associated with unchecked substance abuse problems underscore the importance of awareness of this issue. A shift in attitude toward substance abuse in recent decades has created a more cooperative and less punitive environment for practitioners with substance issues. Additionally, although ED health care providers collectively may be somewhat pre-disposed to substance abuse, they are also, as a group, well-equipped for successful rehabilitation. Health care providers at risk for impairment and colleagues that notice signs of substance abuse should report it to the relevant board, society, or committee to help the ED practitioner avoid negative consequences and continue to enjoy a successful career.
References
1. American Psychiatric Association. Diagnostic and statistical manual of mental disorders (Revised 4th ed.). Washington, D.C. (2000).
2. See e.g., Harris S. Alcoholism and drug addiction among physicians of Alabama. Transcripts Med Assoc Ala 1914; 685-691.
3. Baldisseri M. Impaired healthcare professional. Crit Care Med 2007;35:S106-116.
4. Khong E, et al. The identification and management of the drug impaired doctor. Australian Family Physician 2002;31:1097-1100.
5. Mansky P. Physician health programs and the potentially impaired physician with a substance use disorder. Psychiatr Serv 1996;47:465-467.
6. Kenna G, Lewis D. Risk factors for alcohol and other drug use by healthcare professionals. Subst Abuse Treat Prev Policy 2008;3:1-8.
7. DesRoches C. Physicians' perceptions, preparedness for reporting, and experiences related to impaired and incompetent colleagues. JAMA 2010;304:187-193.
8. Abbott C. The impaired nurse. AORN J 1987;46:1104-1116.
9. Berge K, et al. Chemical dependency and the physician. Mayo Clin Proc 2009;84:625-631.
10. JCAHO intent of Standard MS 2.6.
11. 42 U.S.C. § 12101 et seq.
12. 29 U.S.C. § 2601 et seq.
13. Goetz v. Noble, 652 So.2d 1203 (Fl. App. 4th 1995).
14. Yarborough v. Lewis, 652 So.2d 834 (Fl. App. 2nd 1994).
15. Domingo v. Doe, 985 F.Supp. 1241 (D.Hi. 1997).
16. Case name withheld. New England Jury Verdict Review & Analysis, Settlement February 2005 (February 2005).
17. Romero v. KPH Consolidation, (Harris County Jud. Dist. Ct. Houston, Tex. April, 2000).
18. Jones v. Romanauskas, Case No. CAL87-11172 (Prince George Co. Cir. Ct. 1990).
19. Femino J, et al. Treatment outcome studies on physician impairment: A review of the literature. R I Med 1994;345-50.
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