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Does a Medical Board Consultant Have a Duty to Care?

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Three years ago, the State Medical Board of Ohio ordered me, with the tacit threat of license suspension, to undergo a 72-hour evaluation for substance abuse at a drug rehab hospital in northeastern Ohio. A year before that, a personal crisis had thrown me into an acute state of grief, anxiety, insomnia, and panic attacks — in the immediate aftermath, I used drugs and alcohol to self-treat my symptoms. Although nine months had passed since I recovered from this crisis, a diplomat of the American Society of Addiction Medicine (ASAM), who spent less than 15 minutes reviewing my case, diagnosed me with alcoholism and addiction and “recommended” inpatient treatment at the facility where he was the medical director. He made it clear that, if I refused his recommendation, he would, within 48 hours, report me to my board as “non-compliant,” putting my medical license in jeopardy. 

Although I continued to see my personal therapist, attend group therapy, and take an antidepressant, I would not — could not and did not — accept his recommendation. Five months later, more than a year after I had recovered emotionally, my career in medicine was over. To this day I wonder: How could a board-certified specialist in addiction medicine get a diagnosis so wrong and do so much damage, yet not be accountable for his malfeasance?

Part of the answer lies in how physician-consultants, licensed health care professionals who advise medical boards and physician health programs (PHPs) on health-related matters, are regarded professionally. As advisors, their fiduciary duty is to the board and PHP, not to their practitioner-patients (i.e., the licensed health care professional they are evaluating). Since a physician-consultant is merely promulgating theories, there is no formal physician-patient relationship and no specific duty to care for his practitioner-patient according to prevailing standards. Put simply, these consulting physicians are impervious to allegations of malpractice because they aren’t considered to be “practicing medicine.” No practice, no malpractice. 

Let’s assume, for argument’s sake, that the consulting physician is a board-certified ASAM specialist, as mine was. Certainly, such a specialist should be able to accurately determine if a patient is currently suffering from alcohol use disorder and, if so, to what extent. Certainly, such a specialist should know that alcohol use is not tantamount to alcohol abuse and that most instances of problematic drinking are mild and/or self-limited. He should also know that the least-restrictive effective treatment should be offered and that inpatient treatment is appropriate only for those with serious, recalcitrant alcoholism who have failed outpatient treatment and have serious comorbid physical or mental health conditions. Standard of care also requires that the physician evaluate evidence from the patient’s colleagues, family, and personal physicians, as well as the results of drug screens and other lab tests, before reaching his conclusions.

Mutual regard, benign intent, and honesty are necessary components of any fiduciary relationship. It should not matter whether the individual himself requests the consult or a third party compels it. In fact, because this is a mandated evaluation that leaves the patient vulnerable to adverse consequences of misdiagnosis, the consultant must exercise scrupulous due diligence in reaching his conclusion. A physician who consults for his board or supervises care at a “board-approved” treatment facility — or participates in any professional activity that requires a medical license — should follow the same code of ethics and standards that a physician with similar credentials under similar circumstances must follow. Thus, if a consultant for a medical board or PHP fails to exercise due diligence, and erroneously diagnoses a practitioner-patient with a potentially impairing illness and recommends treatment that is both inappropriate and dangerous, he should be held liable for damages.

In spite of generally agreed-upon standards for diagnosis and treatment of substance use disorders (SUDs), there are examples of medical board consultants wrongfully diagnosing a practitioner with alcoholism or addiction. In some instances, these consultants have diagnosed practitioners with SUD based on anonymous and unsubstantiated accusations of impairment. They have even diagnosed practitioners, who have valid prescriptions for controlled substances that they are using responsibly, with impairing medical conditions even though there is no evidence of an impact on their professional performance. 

Why is this happening? Why should a practitioner-patient who meets none of the diagnostic criteria for serious substance abuse be labeled an alcoholic or addict and remanded to prolonged inpatient care and years of follow up? Why should he be considered impaired in the ability to practice merely because of an allegation of substance abuse or mental illness? Why are so-called “potentially impaired practitioners” automatically considered imminent threats to public safety? Why is a professional license being used as a tool of coercion into unnecessary, expensive, and potentially dangerous medical regimens that have been implicated in suicides?  

The answer to these questions comes from identifying the individuals or entities that benefit from these practices. The consultant benefits monetarily from referrals of allegedly impaired professionals by his board or PHP. The inpatient facility benefits from the consultant’s recommendations for institutionalization, particularly because the recommended duration of care is significantly longer for health professionals than for other members of the public. The medical board benefits because a high rate of licensee discipline enhances their reputation for protecting the public. The PHP benefits from the referrals of those who are identified as potentially impaired. Even attorneys for both the board and the practitioner under investigation benefit from increased demand for legal services.

The conflation of problematic substance use with serious substance abuse, the trend towards using generic medical treatment, including hospitalization, as quasi-discipline, and the increasing fervor to identify potential impairment clearly benefit these players, but there’s no evidence that the upsurge in the identification of “impaired professionals” improves public welfare. Unfortunately, there is evidence that these practices do unnecessary and often irreparable harm to the accused practitioner and the patients in his care.

Some licensees are getting medical treatment as part of license discipline. Thus, someone must be practicing medicine and therefore someone must be liable for violating standards of care and causing harm. If the consultant is merely propounding theories, the rehab facility simply following orders, the lawyer just lawyering, and the PHP only screening and monitoring — then who owns that liability? Perhaps we should consider the individual licensed physicians who comprise the majority of the board. Perhaps board members should be held jointly and severally liable for violations of medical standards by their consultants. Alternatively, a case could be made that the entire board should be held criminally liable for practicing medicine without a license. If that were to happen, I predict that the board would quickly conclude that its consultants do indeed have "a duty to care."

Anne Phelan-Adams MD is a retired physician with 35 years of clinical experience. She is currently devoting her time to writing, editing, and working with a physician organization, The Center for Physician Rights.

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