Sacramento, CA – Despite pleas from families throughout California, who have voiced their concerns about exposing patients to substance-abusing doctors, the Senate Business & Professions Committee advanced AB 408 by an initial vote of 7 to 1.
AB 408, authored 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.
KGTV San Diego ran this recent story about the secret drug program.
The chair of the committee, Senator Angelique Ashby, voiced her reservations about the bill, mirroring many of the concerns raised by medical negligence survivors, Consumer Watchdog and the Consumer Protection Policy Center.
Senator Caroline Menjivar also highlighted a troubling scenario: physicians under the influence could potentially arrive at work and, if discovered before causing any harm to patients, be allowed to enter the program. She said this raises a critical question – how many of these doctors might have worked while impaired in the weeks prior without ever being caught?
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.
“I can’t believe that eighteen years later I have to take on this fight again on behalf of all Californians,” stated Minasian who testified at today’s hearing. “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 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.
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 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.
AB 408 is expected to be heard before the Senate Judiciary Committee on July 15th.
