Federal law even mandates that workers in transportation or other so-called "safety-sensitive" professions — such as pilots, school bus drivers, train engineers, and pipeline emergency response crews — are screened randomly as well. Millions of Americans with jobs that do not involve safety are regularly tested. A 2011 survey by the Society for Human Resource Management stated that 57 percent of employers require applicants to pass drug tests.
Employees are also subject to random testing along with mandatory testing following any workplace accident or injury. Why, then, don't regulators and hospitals hold doctors and nurses to the same standards when the stakes are life and death?
Although physicians are expected to abide by a Hippocratic code of ethics, this an honor system that provides little real accountability. Without much more than this assurance, patients regularly go under the knife and place their lives into a stranger's hands. Considering that the California Medical Board estimates that 18 percent of doctors abuse alcohol or drugs at some point in their career, it seems such trust almost certainly is misplaced.
Physician Impairment Examined
At the pretrial deposition for a 1991 medical malpractice case, Dr. Neil Jouvenat admitted he had abused a range of substances — including alcohol, cocaine, and other drugs — before delivering Kristy Hughes' baby on March 31, 1987. During this medical procedure, Jouvenat performed a forceps delivery that left Hughes' infant daughter, Ashley, paralyzed from the neck down.
According to the subsequent lawsuit, the hospital and two pediatricians covered up the injury and failed to take action that may have enabled Ashley's condition to improve.
"They were not only negligent, they entered a conspiracy of silence," said the Hughes' attorney, Dr. Bruce Fagel, who also practiced for more than 10 years as an emergency room physician. "The physical signs were obvious that the baby had gone through a very traumatic delivery […] Despite the evidence that this resulted from the misuse of forceps, the doctors told the family the child had a hereditary disease and would die in a few months."
The resulting Los Angeles Superior Court jury verdict was one of the largest malpractice awards in California history. When paid over Ashley's full life expectancy, the settlement will equal $460 million. None of the facts of this case should sit well with health care consumers. It's unsettling that a drug-impaired doctor was allowed to seriously botch a delivery without any intervention from anyone else who was present.
Perhaps even more disturbing, though, is the manner in which the Pomona Valley Community Hospital and Jouvenat's colleagues seemed to have been complicit in wake of his deeply negligent behavior.
Systems Built to Protect Doctors and Hospitals Nationwide
It would be easy to dismiss the Ashley Hughes story as a rare anomaly or to say it's confined to California's health care system. When viewed from a national perspective, however, a much more troubling pattern emerges — one where health care systems are built to protect doctors and hospitals instead of patients.
An article recently published in USA Today says, "more than 100,000 doctors, nurses, medical technicians and health care aids are abusing or dependent on prescription drugs in a given year, putting patients at risk."
The article also notes physician impairment is a pervasive problem that is easily hidden and inadequately policed.
In terms of consequences, "Disciplinary action for drug abuse by health care providers, such as suspension of a license to practice, is rare and often doesn't occur until a practitioner has committed multiple transgressions."
This phenomenon hasn't gone unnoticed by dissenting voices within the profession, either. To this end, a 2013 paper titled "Identification of Physician Impairment" published by the peer-reviewed Journal of the American Medical Association observes: "First, medicine is under-regulated compared with other industries. The fiduciary patient-physician relationship is generally considered to be governed by the profession, not to be tampered with by regulatory bodies. While some state and individual health system regulations exist, they tend to be weak. Second, self-monitoring is the essence of medical professionalism. Peer review is the accepted modality to identify physicians with impaired performance."
While some states have programs designed to detect and possibly rehabilitate potentially impaired physicians, the scope of these programs' mandates and authority varies widely from state to state. Much of the time, particularly in states that lack such programs, some form of injury or fatality has to occur to even prompt a review. Often, JAMA says, an "overwhelming amount of data (i.e. harmed patients) must be available before a hospital or state initiates an investigation."
Harvard Health's executive editor, Patrick J. Skerrett, expressed a similar sentiment in his 2012 op-ed piece, "Doctors aren't immune to addiction." In this post, he notes, "Because doctors have high-stakes jobs, strict requirements and intensive treatment may not be a bad idea […] Some hospitals have even started random drug testing to identify doctors, nurses, and others with a problem, but they are few and far between."
Model Legislation Proposed in November
In November 2014, California voters will consider a piece of legislation that may serve as a model for mandatory physician drug screenings. Called the Troy and Alana Pack Patient Safety Act, the ballot measure specifies numerous reforms aimed to increase accountability for medical negligence and raise the damage caps awarded in these cases.
One of the bill's primary goals is to, "Protect patients and their families from injury caused by doctors who are impaired by alcohol or drugs by requiring hospitals to conduct random drug and alcohol testing of the doctors who practice there and requiring them to test physicians after an unexpected death or serious injury occurs." The law would also require medical professionals to report any peers they suspect of abusing drugs, and to check a state prescription database before writing prescriptions for certain drugs.
Passage of the bill may help to break hospitals' "culture of silence," which has been decried by supporters of these reforms.
"This culture of silence goes well beyond the small percentage of medical errors that result in medical malpractice claims," explains Fagel. "Medical errors, including ones perpetrated by impaired physicians, continue to occur because hospitals enjoy an absolute immunity of secrecy."
Hippocratic or Hypocritical Oath?
According to The Bakersfield Californian, when the bill appears on the November ballot, it will be labeled under the heading, "Drug and Alcohol Testing of Doctors/Medical Negligence Lawsuits."
Currently, the ballot initiative faces tough opposition from hospital associations, doctors groups, and insurance companies.
Some of the stiffest opposition comes from the California Medical Board itself. The organization handles all complaints and allegations against doctors, and despite its own estimation that nearly a fifth of all physicians abuse drugs and alcohol, it opposes any legal drug-testing requirements.
Although the Board is a licensing agency with quasi-governmental powers, it is only accountable to California's physicians.
This seemingly creates a conflict of interest, as numerous critics have observed, because these same physicians are all dues-paying members. Even when it comes to existing reforms, the Board has been slow to enact changes when it comes to increasing hospital safety and physician accountability.
According to Lisa McGiffert, director of the Safe Patient Project, "The Medical Board is dragging its feet when it comes to implementing recent reforms that aim to strengthen state oversight of outpatient surgery centers and substance abusing physicians who harm patients."
With California doctor and hospital associations leading the charge, the opposition already has raised more than $33 million to fight against the bill's passage.
Thus, the stage is set for a no-holds-barred battle over whether doctors ultimately will be held to the same standard as truck drivers, retail workers, and other lower-income professions.
If the Patient Safety Act does become signed into law, though, many pundits believe that other states may follow the bill's lead in mandating drug testing for medical professionals. And eventually, the net effect may be to raise accountability for medical institutions and physicians across the country.