Sacramento, CA – A bill that will put patients at risk from doctors who continue practicing while abusing drugs or alcohol passed off the floor of the California State Assembly yesterday and moves on to the Senate.
AB 408 by Assemblymember Berman and sponsored by the Medical Board of California, would create a secret drug and alcohol “diversion program” where the Board would send doctors who have substance abuse problems, instead of taking disciplinary action. AB 408 does not require disclosure to Medical Board enforcement staff, or consequences, for a doctor in the program that fails a drug test, skips a drug test, or otherwise violates the program. This silence about relapse by doctors who are actively treating patients is not limited to doctors who choose treatment voluntarily, as proponents claim. It applies to doctors sent to the program by the Board who would otherwise have faced discipline, including those found using substances at work, said Consumer Watchdog.
“With AB 408 Assemblymembers and the Medical Board prioritize doctors’ interests over keeping their patients safe. The bill would eliminate the Medical Board’s responsibility to investigate and act if it refers a doctor to treatment and that doctor fails a drug test. That means patients will be harmed by doctors who relapse, just as they were in the last program that was shut down for putting patients at risk,” said Consumer Watchdog executive director Carmen Balber.
The Medical Board’s prior diversion program was abolished after failing five state audits because doctors who entered the program could relapse with no consequences and patients were harmed. To prevent this from happening again, the Legislature passed oversight rules called the “Uniform Standards” and applied them to doctors in diversion programs. AB 408 exempts doctors from the law, eliminating oversight and accountability from the program. Consumer Watchdog has urged preserving those patient protections.
Tina Minasian, an advocate for patient rights in California, suffers lifelong injuries inflicted by a substance-abusing surgeon who was a participant in the former confidential physician diversion program. She played a pivotal role in advocating for the closure of the prior failed Diversion Program, and enacting the Uniform Standards so any future program would better protect patients.
“I can’t believe that eighteen years later I have to take on this fight again on behalf of all Californians,” stated Minasian. “We gained too many protections in the past fifteen years to give them up. I lost everything when I was harmed and cannot allow another Californian to endure what I did.”
The bill would allow doctors to seek treatment to avoid discipline even if they were impaired on the job. For example: A San Francisco doctor suspected of stealing drugs from her hospital was recently arrested after she was found passed out in an operating room shortly after she was scheduled to participate in a toddler’s surgery. Under AB 408 the Board could send that doctor into diversion instead of the disciplinary investigation, treatment oversight and consequences for relapse that are all mandatory under current law. The bill does not require reporting of a positive drug test to the Board, so the doctor could continue treating patients while keeping diversion program violations secret and place patients in harm’s way.
Read Consumer Watchdog’s opposition letters on AB 408 here and here.
The History of the Medical Board and Physician Diversion
The former confidential physician diversion program was subjected to a critical sunset review in 2007 after five failed audits by the state and a critical report from an Enforcement Monitor revealed significant failures in drug testing and oversight. In response, patients stepped forward to share their harrowing stories of harm and loss due to the negligence of doctors in the program. The Medical Board of California recognized the severity of these revelations and terminated the program in 2008. That same year, a pivotal hearing on the diversion program was convened at the state Capitol. The chair of the joint committee announced SB 1441, legislation designed to establish Uniform Standards for Substance-Abusing Health Care Professionals in California. Passed into law in 2008, SB 1441 was a vital step toward rectifying the failures of the previous diversion program. It empowered the Medical Board with essential tools to monitor substance-abusing licensees and enforce meaningful consequences for offending physicians, prioritizing the protection of patients and fostering a culture of accountability among healthcare providers. In 2016, SB 1177 was enacted, which allowed the Medical Board of California to recreate a new physician diversion program that adhered to the Uniform Standards.
AB 408 discards those consumer protections and reconfigures any future program in the image of the failed diversion program.
