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Doctors’ drug tests: a divisive issue

A surgical team works on a patient. (Photo: AUSaid)

On Oct. 23, 2013, San Diego physician Dr. Scott D. Greer submitted urine and hair samples to an investigator for the Medical Board of California, which oversees physician licensing and discipline.  Laboratory tests found the samples to be positive for opiates and oxycodone, but not for alcohol.

Nearly one year later, on Sept. 8, according to Medical Board records, Greer was placed on probation for seven years by the board.  His license was suspended for 30 days, effective Oct. 24; he agreed to myriad restrictions and requirements, including submitting to regular, random alcohol and drug testing and monitoring.

The tragic deaths of two young children in 2003, killed by a drug-impaired driver who had been prescribed prescription narcotics by several doctors helped spark the measure.

“If he tests positive for anything, he will be notified to immediately cease practice,” said Cassandra Hockenson, public affairs manager for the Medical Board.

The issue of testing doctors for drug use is a key part of Proposition 46, which has become the focus of huge campaign spending — most of it spent to defeat the initiative.  The measure also would raise the cap on pain and suffering awards in medical malpractice cases, which has been $250,000 since the 1970s, to reflect cost-of-living increases. If approved, the new cap would be about $1.1 million.

The tragic deaths of two young children in 2003, killed by a drug-impaired driver who had been prescribed prescription narcotics by several doctors – a practice called “doctor-shopping” — helped spark the measure, which would also require physicians to consult a state prescription database before prescribing addictive drugs. Bob Pack, the father of Troy and Alana Pack — 10 and 7 when they were killed — left his tech job to pursue legislative solutions, and is a principal spokesman for Prop. 46.

Opponents of Proposition 46, mainly medical malpractice insurers and the powerful California Medical Association, are pulling out all stops – dumping some $57 million into the “No” campaign, roughly $50 million more than supporters of the measure, primarily consumer groups and trial lawyers.

In the case of Greer, 62, he had voluntarily sought help for his long history of alcoholism and drug use after an “intervention” by his family in 2012. He had tried to kick his decades-old habit many times before. For several years, starting in 2003, Greer participated in a beleaguered “doctor diversion” program, administered by the Medical Board and abandoned in 2008 as ineffective, failing to protect patients in the care of participating doctors.

Greer admitted to investigators that he relapsed, providing false urine samples while in the controversial diversion program, which was scrapped by the state after multiple government and independent audits revealed major flaws.

In addition to random laboratory drug-testing, a major part of Greer’s probation includes twice-daily use of the Soberlink breathalyzer test. Results are immediately transmitted with a photograph of the subject via a mobile phone attached to the device.

 “The measure as written is a mess,” says Jason Kinney, a spokesman for the No on 46 campaign. “The drug testing provision is particularly problematic.”

The Greer case marks the first use of the technology by the state board for monitoring physician compliance on probation. “It’s potentially a very powerful monitoring tool for those with alcohol problems,” said Greer’s attorney, David Balfour of Carlsbad, who specializes in physician discipline cases, “because it can provide results instantaneously, [unlike] a random urine screen, which is typically how the board has monitored [physicians].”

Details of the disciplinary actions against Greer and other physicians are posted on the state Medical Board website, www.mbc.ca.gov.

Critics of Proposition 46 say the initiative is flawed.

“The measure as written is a mess,” says Jason Kinney, a spokesman for the No on 46 campaign. “The drug testing provision is particularly problematic.”

But testing doctors for drugs is popular with focus groups and in polls of likely voters. It is privately favored by many physicians, especially those recovering from addiction issues, who argue California needs more official incentive for doctors to seek help – and liability protections for colleagues who may be reluctant to report them.

“At its peak, the diversion program had 300 to 400 participants,” says Balfour, yet the number of Medical Board enforcement actions is considerably lower. “Two-thirds are not getting treatment. In the larger context, if 10 percent of the population [has addiction issues], 12,000 doctors would need some level of help. Not having any official program is a bad outcome.”

The investigative function of the Medical Board, a so-called “self-funded” agency supported by physician licensing fees, was moved in July to the state Dept. of Consumer Affairs.

More than 128,000 physicians are licensed to practice in California, and Greer is believed by critics of the state’s doctor-discipline system to be one of hundreds – perhaps thousands — of physicians who abuse alcohol and drugs. Many may well be practicing while “impaired” and do not seek help from a patchwork physician treatment system long acknowledged by experts to be ineffectual and potentially dangerous to patients in the care of drug- or alcohol-addled doctors.

According to the Medical Board’s annual report, 394 physicians were disciplined in some way in 2012-2013, with actions ranging from license revocation (11) to probation (41) or public reprimand (47). Reasons ranged from “gross negligence” (130) to sexual misconduct (24).

Disciplinary actions for “self-abuse” of alcohol or drugs numbered only 46, with nearly half being placed on probation.

California is one of the few states in the U.S. without an official program to direct physician substance abusers into treatment and monitoring. Legislation to create a new diversion/treatment program has repeatedly failed in the state Legislature.

The investigative function of the Medical Board, a so-called “self-funded” agency supported by physician licensing fees, was moved in July to the state Dept. of Consumer Affairs after Gov. Brown signed legislation last year to reorganize board staff. In the spring of 2013, legislative oversight hearings and intense consumer-group protests over excessive physician prescribing of painkillers prompted sharp legislative criticism of the board’s failure to “protect consumers.”

The Legislature ultimately approved extending the board for four more years, but in July moved its 100-plus investigators to the Division of Investigations within the Consumer Affairs Department. The state Attorney General’s office has long had prosecutorial responsibility for board enforcement actions.

The latest legislative effort to create a physician diversion program was AB 2346 by Assemblywoman Lorena Gonzales (D-San Diego), which proposed a diversion program similar to a State Bar program for lawyers.

Julianne D’Angelo Fellmeth, administrative director of the Center for Public Interest Law at the University of San Diego Law School, has long followed physician discipline issues in California, and is a former state monitor for the Medical Board, issuing one of several scathing audits of the physician diversion program.  She often testifies in the Legislature about physician-discipline issues, and is widely regarded as an expert in the field.

“There are now three layers,” she said of the recent Medical Board reorganization. “The Medical Board, the Division of Investigations and the Attorney General’s office. We won’t know the actual impacts until after the move.” Fellmeth said she would have preferred that investigators be placed in the Attorney General’s office, to work more closely with prosecutors on enforcement cases involving physicians.

Highly critical of the diversion program, she does not favor creation of a similar successor.

“All the doctors insist that [the program] must be secret and confidential, otherwise no doctor will go into it,” she said. “So if there is a program, it [will be] secret. Patients aren’t going to find out about it.” She recalls attending a Medical Board meeting when the diversion program was in effect, when a patient appeared, uninvited, at one of the board’s public meetings, after learning that a plastic surgeon who operated on her, and several others, several years earlier, was in the diversion program.

“It was a botched plastic surgery,” Fellmeth said, “and she told the board she knew a bunch of people who had been injured by him, and they [former patients] had put up a website. Her surgery was in 2001. The physician’s license was finally revoked in 2009 for lying to investigators.”

The latest legislative effort to create a physician diversion program, Fellmeth said, was AB 2346 by Assemblywoman Lorena Gonzales (D-San Diego), which proposed a diversion program similar to a State Bar program for lawyers. “She insisted it be absolutely confidential,” Fellmeth recalled. “The State Bar program has been around for 10 years, and only 11 percent have completed it. I don’t consider that to be a successful program.”

‘A Lame Program’
“The decision to get rid of diversion was progress,” she added. “It wasn’t protecting patients, or doctors. It was a lame program. It could be gamed.”

Many hospitals require some form of drug-testing, but not all doctors have hospital privileges.

“In my experience, the problems are with doctors who don’t have privileges, who work in clinics,” Fellmeth said, citing the highly publicized 1990 case of Dr. Milos Klavana, a Valencia obstetrician who was convicted of second-degree murder in the deaths of eight infants and one fetus. The Medical Board came in for harsh criticism from patient advocates and the judge in the case for failing to intervene.

The recent Greer case is particularly instructive as a bellwether of the discipline system – and the use of high-tech, instantaneous drug testing to monitor doctors on probation.

Greer has been open about his addiction since seeking treatment in 2012, agreeing to a rigorous monitoring program and admitting to past failings. He acknowledged to investigators that he had long been abusing alcohol and drugs while still treating patients, and Medical Board public records show four DUI arrests between 1992 and 2002, with three convictions in 1992, 2000 and 2002. He entered the diversion program in 2003.

“There is no way to trace that. It’s like near-misses, like a drunk driver who has driven 300 times drunk before being caught.”

Medical Board investigators also note several brushes with San Diego law enforcement over assault allegations in 2012 involving a reported attack on a male friend, a former patient, whom Greer threatened with an ax, and an alleged “incident of domestic violence” involving a girlfriend, also a former patient, for whom he was prescribing painkillers. Neither pressed charges, according to Medical Board records, and there were no convictions, although the Sept. 8 disciplinary action by the Medical Board includes writing prescriptions for the former girlfriend without performing a required examination.

“Amazingly, there is no evidence that [Greer’s] drinking has ever resulted in any mistreatment of a patient under his care,” Dr. Mark Kalish, a psychiatrist who evaluated Greer, wrote in a report to the board. “I also don’t think there can be any question that if [Greer] continues to abuse alcohol, patient care will be compromised. The question is not if it will happen, but only when.”

Unless patients are seriously injured, or die, or file lawsuits, it is difficult to determine how many patients may have been harmed by alcohol- and drug-impaired physicians, and patient advocates blame the secrecy of the system for preventing patients from easier access to information about investigations and prosecutions. Statistics and many medical-journal articles show that physicians who do seek help, and are treated by effective programs – called Physician Treatment Programs (PTP’s) or Physician Health Programs (PHP’s) – have a very high rate of success over time, as high as 80 or even 90 percent, according to some articles.

Dr. Stephen Loyd, 47, a Tennessee physician who 10 years ago sought help for his heavy addiction to prescription pain killers through a Tennessee state program, is a frequent, albeit out-of-state, spokesman for Prop. 46. He says “nobody knows” how many patients have been harmed by drug- or alcohol-addled physicians. “There is no way to trace that. It’s like near-misses, like a drunk driver who has driven 300 times drunk before being caught.”

“I had all kinds of potential for harm,” Loyd added. “I wasn’t mean. I wasn’t psychopathic, but I harmed patients in other ways. I had a patient that I got to give me back pills one time. When he found I had gone into treatment for drug addiction, he told me he felt like he ‘caused’ me to ‘get addicted’. . .That is harm, although it didn’t dawn on me at the time that I owed him an apology. I’ve since apologized.”

For doctors who are hiding in bathrooms, they’re miserable, they’re dying. When you first intervene, they’re not going to be happy campers.”

Loyd, chief of medicine at the Mountain Home Veterans Administration Medical Center in Johnson City, Tenn., and an associate professor at East Tennessee State University Medical School, went into treatment after his father confronted him about his drug use. “I’d evaluated myself,” he said. “I was drowning, dying. I self-reported [to the state], and I was in compliance from Day One. I am one lucky SOB. I love my damn life. I get to be a doctor. I used to fuss about the check I had to write every two years for my license. I look at life differently. As bad as it was, my professional life was not suffering. But my wife had had it.”

His son and daughter were 7 and 9 when he went into treatment. His son, now a 20-year-old college sophomore, wants to go to medical school and become an addiction specialist.

Loyd said he supports Prop. 46 because, unlike Tennessee and other states, California has no official system for doctors to get help. “Assuming 2 percent prevalence, there are 2,500 to 3,000 docs who are actively addicted,” Loyd said, “but there is no mechanism, no leverage, to get them into treatment programs.” And while random drug testing of physicians – as called for in Prop. 46 — “won’t be the magic bullet,” he said, “it is an initial deterrent.”

“People look at this as being punitive,” he added. “But for doctors who are hiding in bathrooms, they’re miserable, they’re dying. When you first intervene, they’re not going to be happy campers.”

A September USC/LA Times poll showed weak support for the measure, with 50 percent opposed, 37 percent in favor and 12 percent undecided. Dave Kanevsky of American Viewpoint, the Republican pollster in the bipartisan survey team, characterized approval for the measure as “a mile wide and an inch deep.” Support “looks strong but starts to fold when voters hear both sides,” he told the Los Angeles Times. Sixty-eight percent of those polled favored the provision for drug-testing of doctors.

“We ought to be able to do as well as Alabama, where we were doing about 80 physician interventions a year, in a state with 13,000 practicing physicians.”

Dan Schnur, director of the Jesse Unruh Institute of Politics at USC, said proponents of the measure – mainly consumer groups and trial lawyers – “were very smart. They tried to cover up a controversial measure (limits on malpractice awards) with a popular one (doctor drug testing).” But, he added, “a ballot measure is only as strong as its weakest link.”

Like most legislating-by-initiative, lacking action by a state Legislature repeatedly unable to agree on workable laws to effectively regulate either physician drug use or doctor discipline, the measure is widely regarded as legally flawed – and, like most initiatives, likely to be challenged in court.  Once again pitting doctors and lawyers over malpractice caps, the measure includes provisions such as random drug testing – and a requirement that doctors consult a statewide prescription drug database before prescribing addictive drugs – which are sure to capture public interest.

California Needs Education, Intervention
According to Medical Board records, Greer had been licensed to practice since July 27, 1981. He had graduated magna cum laude in 1974 from UC-Irvine with a Bachelor’s degree in biological sciences, received a Master’s in biochemistry from California State University, Long Beach, in 1976, and a medical degree from the University of Utah in 1980. He did his internship and residency in internal medicine at Los Angeles County/USC Medical Center and a fellowship in gastroenterology at Scripps Clinic. 

He entered private practice in 1985 and currently works for the Center for Family Health in San Diego. He is by many accounts a conscientious and caring physician, when he’s clean and sober, which his attorney says he has been since his family intervened and he entered treatment in 2012.

Dr. Gregory Skipper, an addiction specialist and author of many medical-journal articles on physician addiction treatment, is director of the Promises Physician Treatment Program in Santa Monica, where Greer was treated. He cannot discuss specific patients, but is quoted in Medical Board documents as one of the physicians who treated and/or evaluated Greer. Skipper has run or advised physician treatment programs in other states, including Alabama and Oregon, and says California is remiss in not having a program for doctors needing help.

“It’s such a startling fact that California doesn’t have [a program],” Skipper said. “There needs to be a program for education and intervention, which is what other states have. We ought to be able to do as well as Alabama, where we were doing about 80 physician interventions a year, in a state with 13,000 practicing physicians. We are so behind in this in California.”

“If it’s just discipline and enforcement, that’s not enough,” he added. Protection for colleagues who may want to report an impaired physician – sometimes called a “snitch law” – is necessary, he said, which requires physicians to report a colleague’s impairment, but protects the reporting physician from liability. As for drug testing, he said, “if it’s done willy-nilly, it will be unsuccessful.” He favors drug testing of physicians at key junctures in their careers — “before appointment to a hospital, for license renewal.”

And, like most physicians, he favors confidentiality for doctors receiving treatment. “It’s a medical condition,” he said. “It should be private. If doctors refuse to cooperate, they should be reported immediately.”


Ed’s Note: Sigrid Bathen, a Sacramento journalist who has frequently written about physician discipline, is a regular contributor to Capitol Weekly. She teaches journalism at California State University, Sacramento and can be reached at sbathen@csus.edu  

 


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