Patient Protection: A Wedge Issue?

The Physician Diversion Program closed its doors July, 2008. Since then, California’s health care institutions have been in a state of confusion. For 29 years, they had access to an effective, accessible Board-sponsored program to head off the risk of physician impairment. In addition, they could be part of a solution that produced physicians with added value to patients.

Now they must deal with a Board who declares itself irrelevant on this issue. The Board opposes any secondary prevention effort. It offers no guidance, and unfortunately exhibits a lack of competence on this vital issue. The Board’s stance that a medical school course in wellbeing and continuing education hours on wellness is enough to mitigate the problem is naïve and dangerous.

So what impact has the closure of Diversion had? After careful review, one must conclude the impact is largely negative. While the private sector has picked up the ball, the current environment in California is that of accumulating risk. The very concept of patient protection has become a wedge issue.

All but three states have early intervention and prevention programs for health professionals with substance, mental health or behavioral problems. The vast majority of these programs are endorsed and partially funded by State Health Care Licensing Boards (HCLB). Other funding comes from medical associations, malpractice carriers, hospitals, foundations and participant fees.

California is one of the few states where the HCLB’s have kept the programs directly under the Boards. Most States title their programs as Physician Health or Health Professional Programs (PHP). California’s programs have been titled as Diversion programs.While somewhat accurate, the term has come to imply a legal rather than clinical connotation, precluding early detection, intervention and prevention, and implying diversion from prosecution. The same can be said about referring to these programs as serving impaired health professionals. These programs are designed to prevent overt impairment. Impairment is a functional classification which means the inability to perform work with skill and safety, for whatever cause.

The Physician Diversion Program was around for decades. In spite of being constantly attacked by a public interest law firm and its lobbyist, the former enforcement monitor for the Medical Board, it did an excellent job of combining patient protection, support for health professionals, and enhanced the quality of care for patients. The oft-repeated accusations of patient harm by the chief critic and former enforcement monitor, who has made a lucrative profession out of attacking board programs, have collapsed under scrutiny.

The critics have made political hay and enriched themselves without any burden of proof. Their public victims are allowed to present their stories, knowing there is no penalty for false complaints against doctors. One woman in particular has actively engaged in the solicitation of false complaints against a targeted physician.

These false complaints have cost. The state has spent untold amounts of money to investigate and prosecute them. The Board yielded to the pressure and went to extraordinary lengths to revoke one doctor’s license to ward off further criticism and more fake victim parades.

Lost in the wedge rhetoric is the truth about doctors who enter recovery through the State PHPs. Statistically, these doctors are actually safer, as a group, than doctors in general. Preliminary malpractice data from Illinois and Tennessee demonstrated fewer per capita malpractice cases. Long-term outcome studies involving sixteen states demonstrated essentially no patient harm involving program participants. Data suggests that actual patient harm from impaired health professionals is far more likely to occur when early reporting is delayed, often resulting in a crisis. Data also strongly suggest PHPs that encourage early referral and confidential involvement, with limits, provide enhanced quality of care for patients.

The current efforts to establish uniform standards for Board-sponsored programs under SB 1441 are also being subverted by the former enforcement monitor. The emphasis on creating standards with criminal language and emphasis will change programs so no one will enter voluntarily. The former enforcement monitor will then falsely claim the programs aren’t needed. Problems are driven underground when participant requirements are so onerous as to create delays in entry.

It is easy to evoke a negative stereotype about doctors with substance problems when genuine facts aren’t included. California deserves better. It needs proactive programs that are both supportive and have sufficient leverage. A punitive, criminalized approach will result in harm to patients.

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