Over the last several years, we here at Walker Medical Law have encountered many physicians who are addicted to drugs or have been, incorrectly, accused of substance abuse. This, of course, is an enormously dangerous situation as any doctor who is not functioning at 100% of his/her mental capacity can be a danger to patients. Also, this situation can sound the death knell for the physician’s career, as no one wants the liability of employing such a physician even if rehabilitation has supposedly been accomplished. Accordingly, when a client comes to us with this issue we have to take every step and measure that we can to end the problem so that the public is safe and the physician can go on with his/her career.
These cases come to us in several different ways. First, some physicians realize that they have a drug problem and they contact the firm. This situation is the easiest to deal with as the first massive step has been taken; that is, the physician in this scenario has actually understood that this very serious problem exists and has come looking for help. Also, this physician is still employed as the “problem” has not yet been discovered and that is a tremendous benefit for the future career of this physician. In this situation we immediately have the physician enter into an evaluation and treatment program which always includes random urine tox screens. The idea is to have the physician be enrolled in treatment with professionals and monitored to ensure that drug ingestion has ceased. One question that arises in all of these cases is whether to have the physician enroll with the Committee for Physician Health, (CPH), or utilize other groups of professionals to shepherd the doctor through this process. This choice is actually important as we have learned that one size does not necessarily fit all, and while CPH is the best path for some people, that is not always the case.
Another cohort of clients is comprised of doctors who have been terminated from their employment after being accused of abusing drugs. The situations are often when the physician is found to be unconscious or speaking incoherently while in the hospital or when someone claims to have witnessed the physician stealing narcotics from the hospital. This leads to a confrontation with the administration and the physician is most often terminated from the facility. This termination almost always leads to a reporting of the incident to the Office of Professional Medical Conduct (OPMC), and an investigation into the matter is initiated. It is this situation that is extremely dangerous for the physician’s career and it is mandatory that the matter be dealt with by attorneys who are experienced in this field. Every fact is critical, as is the timeline. We at Walker Medical Law treat this situation by, again, having the client evaluated by substance abuse professionals in addition to random testing. The client usually denies drug use so the idea is to have the physician enrolled in a program as a defensive tactic. If the physician does have a substance issue the concept is to get him/her into treatment immediately to deal with the problem as quickly as possible. On the other hand, if the physician has been unjustly accused, the substance abuse specialists we utilize will be able to state that the physician has been evaluated and he/she does not have a substance abuse issue.
A problem that always arises is whether the physician can or should continue to work at a different facility or on his or her own after the accusation is made and the physician has been terminated from the place where the issue was raised. This situation is very complicated and each case has to be evaluated on its own set of facts. If, for instance, the physician states that it is impossible for him/her to continue practicing until the drug dependency has been completely addressed, then there is the option to sign a Temporary Surrender of the medical license with The Office of Professional Medical Conduct. This Surrender is a non-disciplinary Order and it is posted on the National Practitioner’s Data Bank and on the Office of Professional Medical Conduct website. The license will remain surrendered until there is a Hearing that determines that the physician is again, “fit to practice”. You should know that this Hearing might not occur for a period of years. During that time the physician is out of work and, accordingly, without any income. Also, when the license is restored there are often many restrictions on it that make it very difficult for the doctor to obtain employment that is anywhere near the level of compensation that existed before the Surrender occurred.
Often, however, the physician maintains that the accusation of drug use is not valid and wants to contest the entire situation. When that occurs, a decision has to be made as to what is the best way forward. Our method, as was stated above, is to have the physician enter a substance program for evaluation along with random testing which is used to show that there is no evidence of any type of illicit drug use. This can, in some instances, be done with CPH but often we utilize the services of other substance experts. That decision regarding exactly how to proceed depends upon the facts of each situation.
When OPMC becomes involved they begin their own investigation. This will include an interview with the physician, and we prepare for that Interview and attend it with the doctor. It is important to know all of the facts in the case when you are at the Interview, and you should have any documents with you that are favorable to the physician. These documents can be tox screen results, letters from employers, letters from the substance counselor, etc. The plan is for the physician to put his/her best foot forward at the interview so that there is not a demand for a surrender of the license. The goal is to keep the physician working while being drug-free. The drug-free part is made provable via tox screens and we have the physician continue in the substance protocol with counselors so that we have an expert on the field available to testify as to the “fit to practice” issue. The longer you can work drug-free and do good work that will be supported by your employers, the more likely it is that you will keep your license.
This area of the law is extremely important and the decisions the physician and the lawyer make will be very, very significant. You have to understand all of the ramifications of your decisions and this can only be done by looking into the future and knowing what consequences there might be. There are many moving parts and your entire career can depend on what actions you take early in the process and, accordingly, you have to have advice that gives you a clear picture of these issues.