Bill About Doctors’ Substance Abuse Would Compromise Patient Safety

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If anyone should know how to steer clear of cures that are worse than the disease, it's doctors.

That's why it seems so odd — on the surface — that the California Medical Assn. would sponsor a bill to re-create a drug- and alcohol-treatment program for physicians that has failed miserably in the past. It's when you look under the surface that you recognize the CMA's real motive is to stave off a November ballot initiative that would be even tougher on doctors than the measure it's sponsoring.

The CMA's bill would compromise patient safety. That's what makes the measure so shameful. It's also being pushed along in great haste, which makes it even more suspect.

Let's stipulate that doctors suffering drug or alcohol addiction present a genuine danger to their patients. Although estimates of the addiction rate vary, the most consistent findings suggest that the alcoholism rate among physicians and surgeons is fairly close to that in the general population, but that drug abuse rates are considerably higher. Presumably, the main reason is that doctors have easy access to dangerous drugs.

Unfortunately, the state's previous effort to create an intervention program for substance-abusing physicians was a disaster. Addicted doctors were "diverted" into treatment as an alternative to disciplinary proceedings that could result in the suspension or loss of their licenses.

Operated under the jurisdiction of the California Medical Board, the diversion program was audited five times over its quarter-century life — from 1981 to 2008 — and flunked every time.

Julie D'Angelo Fellmeth, who was appointed the medical board's enforcement monitor in 2003, listed some of the landmarks: In 1982, the state auditor-general found that the program had no formal policies for detecting noncompliance by doctors with the program's terms, and that it suffered from inadequate monitoring and record-keeping. The auditor found the same problems in 1985; one case monitor hadn't visited any of his addicted clients for the last year. In 1986, same thing; the auditors found that 81% of the participants hadn't been visited for as long as seven months, and in 70% of cases, urine samples hadn't been collected according to the specified schedules. When Fellmeth audited the program in 2005, about 230 physicians were participating. They paid for their own drug testing and group therapy meetings, but the program's overhead was funded by physician license fees.

The medical board engaged in almost no effective supervision of the program, which was chronically understaffed and underfunded. Perhaps its worst feature was that doctors gamed it to evade medical board discipline. As Fellmeth wrote in her 2005 audit, in many cases the doctors' participation was kept secret "from the board's enforcement program, their patients, and the public"; often they kept seeing patients.

Goaded by her report, the medical board voted unanimously in 2008 to kill the diversion program outright. Since then, there has been no state-sponsored rehab program for doctors, though it's not absolutely clear that one is necessary.

"Substance abuse by doctors is a very serious problem," says Fellmeth, who is administrative director of the Center for Public Interest Law at the University of San Diego law school. "But that doesn't mean there has to be a state-sponsored program to deal with it."

A bigger problem is placing it under the medical board, which can barely handle the enforcement responsibilities it already has. Ed Howard, a lobbyist for Fellmeth's law center, reminded a legislative committee last month that the board's "major charge is to protect patients, not physicians."

Yet the CMA has worked tirelessly in Sacramento to saddle the board with the duty to obtain treatment for sick doctors under conditions of confidentiality, which are incompatible with its duty to discipline dangerous and unprofessional doctors. The CMA's last attempt was a 2012 bill carried by Senate Majority Leader Darrell Steinberg (D-Sacramento). The bill died after an eagle-eyed Assembly analyst figured out that it would essentially hand over the program to California Public Protection and Physician Health Inc., which claimed to be an "independent" entity but actually was a creation of the CMA and several other medical lobbying groups.

CMA's pitch is that arranging for "the successful rehabilitation of impaired physicians" comes under the medical board's "public protection mandate." But that's mere rhetoric; the board describes its mission as protecting healthcare consumers through "licensing and regulation of physicians and surgeons"; it doesn't mention rehabilitation.

CMA never explains why doctors, who typically have more money to pay for private treatment than the average addict or alcoholic, need a government-sponsored option, especially one operated under the aegis of a disciplinary body.

That brings us to the latest bill, AB 2346, which was introduced last month by Assemblywoman Lorena Gonzalez (D-San Diego). The measure would authorize the medical board to contract with an outside party for establishment of a "voluntary and confidential" program to assist physicians.

Gonzalez told me that the CMA has worked with her on the bill, but (let's face facts) it's the CMA's baby. During a hearing April 29 before the Assembly Committee on Business, Professions and Consumer Protection, Gonzalez's pitch was very CMA-like. "If this is a profession that is so riddled and so in need of assistance because of drug and alcohol abuse," she said, "then how do we not have a program to try to prevent this?"

Gonzalez insists that her proposal is different from a diversion program. But her measure replicates some of diversion's worst features: The bill would guarantee that doctors' participation in the government-sponsored substance abuse program will be kept secret from their patients and, more disturbingly, from the board. In an interview, Gonzalez defended that provision because "without confidentiality, no one would participate."

Meanwhile, the CMA's homegrown treatment program, California Public Protection and Physician Health Inc., is still in the wings, hankering after state sponsorship that would send clients its way. Fellmeth and other critics observe that the staff of CPPPH is shot through with veterans of the discredited diversion program, including its former director. Its board chairman, James Hay, was president of the CMA during the abortive legislative effort in 2012. So critics' concerns that the CMA is aiming to reestablish diversion in a different guise and with the same management are well taken.

Another reason for concern is the unseemly haste with which the CMA and Gonzalez are working. The bill didn't even exist in its present form until late April. Only days later, Gonzalez was telling the Assembly committee that providing assistance to addicted doctors was so supremely important that prompt action was required; the bill easily passed out of the committee.

Plainly, the CMA wants the bill enacted now as a weapon against a ballot initiative pushed by the consumer advocacy group Consumer Watchdog. The goal of the initiative, which qualified for the ballot last week, is to reform California's consumer-unfriendly malpractice law, known as MICRA, which closes state courts to legitimate victims of physician error and incompetence. But in a quest for votes, the consumer group unwisely larded the initiative with a mandate for random drug testing of doctors.

We explained back in December why adding the drug provisions to the MICRA initiative was a lousy strategy — the drug provisions wouldn't achieve their aims, yet would distract voters from the important issue, which is reforming the anti-consumer limitation on malpractice lawsuits. The Gonzalez bill makes that strategy look worse. If the measure passes, the CMA will be able to claim that a drug program for doctors is in place, so there's no reason for people to vote for the initiative. MICRA reform will die. And the CMA will have defeated an important advance in consumer protection.

All this will play out as we move closer to the November election. In Sacramento, very little is as it appears on the surface. And that goes double when a powerful lobby, like the California Medical Assn., is at the operating table.

Michael Hiltzik's column appears Sundays and Wednesdays. Read his blog, the Economy Hub, at, reach him at [email protected], check out and follow @hiltzikm on Twitter.

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