Diversion program for substance-abusing doctors set to expire

For years, doctors who were found to have alcohol or drug problems were referred to a state-run program that sought to get them into treatment and make sure they didn’t harm patients. As of July 1, that program will no longer exist. The move is designed to better protect patient safety, but some question whether the new system will be an improvement.  

The Medical Board of California voted unanimously last July to allow their Diversion Program to sunset. The 203 doctors who were in the program as of last September have been divided into three categories for continued treatment and monitoring under a transition plan approved by the board.

The changes came in response to a report from the California State Auditor that found major problems with the diversion program. That report, in turn, cites the work on the enforcement monitor who looked at the board’s programs from 2003 to 2005: Julianne D’Angelo Fellmeth of the Center for Public Interest Law (CPIL) at the University of San Diego Law School.

“We started criticizing the Medical Board’s enforcement programs back in 1989,” said Fellmeth. “We have just never gone away ever since then. We didn’t get everything we wanted. In fact, we got very little of what we wanted. But we kept going back.”

Fellmeth is able to cite numerous examples of doctors she said slipped through the cracks of a program that provided little diversion and even less enforcement. These are backed up by stories of patients who didn’t know about their doctors’ multiple DUIs—and sometimes by photos of the butchery allegedly visited on patients by some impaired doctors.

But Jim Conway, a psychotherapist who has been involved in diversion programs for medical professionals since 1990, said that eliminating the program could create new problems. The new system, he said, is more likely to move the most impaired doctors to harsh disciplinary actions—such as the suspension or revocation of their licenses—while providing less oversight to physicians whose troubles are less obvious.

He said he was particularly troubles by the lack of a self-referral system directly connected to board. Under the new system, according to a document provided by the Medical Board, physicians can self-refer to private substance abuse programs; “the Board is not aware of a physician’s treatment unless a complaint is received.”

Under the old system, Conway said, doctor’s could self-refer and meet with counselor’s with a direct connection to the board. A physician would need to attend group sessions one or two times a week, depending on their progress, for five years. Conway said that he is now working with a pair of noted addiction-medicine doctors, David Greenberg and Michael Sucher, to create a private sector equivalent called the Pacific Assistance Group to provide the oversight the board once offered. It’s modeled on a program in Arizona.

The auditor’s report  cites problems such as lack of contact with physicians’ substance abuse counselors, lack of verification that physicians were attending group therapy sessions, and very slow turnaround times for getting physicians into drug testing.
Fellmeth’s work on diversion was part of a larger effort to move the Medical Board from a roll of representing the medical profession to protecting consumers, she said. It remains one of the few state boards that still has a majority of “professional” members—that is, doctors, rather than “public” members. However, the board now has eight doctors, down from 12 a few years ago; the number of public members has remained constant at seven.

She takes a dim view of professional groups that claim that “public” members don’t have the specialized knowledge needed to govern a complex field like medicine.

“They [enforcement issues] mostly have to do with drugs and sex [with patients],” Fellmeth said. “Did he commit that misconduct on such and such a day? You don’t have to be a doctor to opine on that. We ask laypeople every day to make these kinds of decisions. They’re called juries.”

The poster child offered up by some critics of the diversion program is a Beverly Hills plastic surgeon named Brian West. A Google search on his name will turn up a DUI mug shot, some gruesome pictures of his work allegedly gone wrong, and an entire websites designed to warn people about him. It will also turn up newspaper stories detailing sordid scenes, like West downing eight Heinekens in a McDonald’s parking lot during a 2003 relapse.

What you are less likely to see, Conway said, is information that reflects more positively on West. Two of West’s former patients—Tina Minasian and the late Becky Anderson—were key members of a “victim’s posse,” that often show up in news stories and hearings, Conway said. He claims both women ignored West’s post-surgery advice for their abdominal plastic surgeries, which included orders such as avoiding smoking and weight gain. He added that it will take some digging in many of the stories to turn up the fact that Minasian has lost several malpractice suits against West, that no one has been able to successfully show he worked while intoxicated, and he is still employed by a prestigious practice in Southern California. As of press time, West had not returned a call seeking comment.

Fellmeth’s two-year contract as enforcement monitor paid the CPIL $237,466. The work included two major reports on the board’s enforcement programs. According to the school’s 2005-2006 annual report, the CPIL and the Children’s Advocacy Institute, which Julie’s Fellmeth’s husband Robert Fellmeth founded in 1989 under the banner of the CPIL, brought in $700,741 for the school. This was over a quarter of the law school’s revenue. It came second only to academic programs, mainly tuition, as a revenue source.  
Candis Cohen, public information officer for the Medical Board, said this was money spent on Fellmeth’s final report was well-spent.
“It got a lot reaction by the board and board staff, all of it positive,” Cohen said. “We made many changes based on that report.”
Conway noted the West’s story also appeared in a multipage story in the Spring 2008 issue of the USD Law School’s Journal. This included the mug shot and a 20 year account of drinking and patient complaints. He questioned the group making money on enforcement programs while also printing “sensational” reports about doctors whose cases are still pending—something he said “intimidates” critics of the CPIL.

“They don’t want to be in her crosshairs,” Conway said.

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