Bioethics Discussion Blog: Drug Screening of Physicians: Violations of Personal Privacy vs "Peace of Mind"

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Thursday, May 22, 2014

Drug Screening of Physicians: Violations of Personal Privacy vs "Peace of Mind"





Yesterday, I received the following e-mail from Ed:

"Dr Bernstein, as a retired USAF pilot and current airline pilot who has been subjected to random drug screening for my entire professional career, why aren't medical providers who have easy access to legal drugs as well as the same to access to illegal drugs as the rest of society, subject to random drug screening? The public literally places their lives in our respective hands and it seems both professions have a ethical, moral, and legal obligation to ensure reasonable efforts are made to identify those who abuse drugs. I think this would make a great topic for your blog."

It was.. and here it is.

I wrote Ed back "Good topic for consideration. The question is not the moral, ethical or legal aspects of testing but in the physician population alone, what are the studies and statistics which confirm that such testing would make a significant difference in overall patient safety vs the validity and the economics of a test result?  An airline pilot, in daily work, may have hundreds of lives beyond his/her own at immediate highly significant risk whereas a physician's risk pool is limited to his one patient with less significant risk. ..Maurice. "

We must find the statistics to compare physicians to airline pilots with regard to drug intoxication, frequency of incidence and outcome in terms of risks to lives and health in their daily professions. In reality, the testing of physicians for drug use is already occurring in U.S. hospitals both on staff admission and also randomly. If the statistics show that drug use by physicians is minute and the consequences of such addiction is also minute, then the questions are whether such testing is simply a way to provide society and the patients some "peace of mind" and whether that benefit is sufficient to ethically permit violation of a physician's personal privacy and its professional consequences  for that patient comfort.

If statistics will show that there is a difference between the risks to patients vs passengers, would you agree that there should be a difference between physicians and airline pilots in the way society handles the drug-use issue for safety and "peace of mind"?  ..Maurice.  


Graphic: From Google Images modified by me with ArtRage 3.


14 Comments:

At Thursday, May 22, 2014 7:05:00 PM, Anonymous Anonymous said...

The consequences are not minute if you're that patient who suffers irreparable harm due to the actions of an impaired physician or ancillary staff member. What percentage of U.S. physicians (and staff) are being screened and how is it accomplished. There is a vast distinction between pre-employment testing known in advance vice being subject to truly random screening. How does random screening violate a physician's personal privacy and what are the professional consequences for a negative test? Truly random screening is a legal and effective deterrent simply because it instills the fear of being caught!

Ed

 
At Thursday, May 22, 2014 9:22:00 PM, Blogger Maurice Bernstein, M.D. said...

For those interested in California law. This coming November, California voters will be voting on the
"Troy and Alana Patient Safety Act of 2014" which requires all hospitals to check all physicians attending patients
to random drug and alcohol tests to be financed by the physicians themselves, to immediately test physicians
involved in any "adverse event". Also all physicians and pharmacists must first check the state's electronic history for the patient before first issuing any Schedule II or III drugs.

http://oag.ca.gov/system/files/initiatives/pdfs/13-0016%20%2813-0016%20%28Drug%20and%20Alcohol%20Testing-V%202%29%20%29.pdf

Oh! the Findings and Declarations of the Act paint a horrible picture of physicians as they practice medicine if "one third of all physicians, will at sometime in their careers experience a condition, including alcohol and drug abuse, that impairs their ability to practice safely." Unfortunately as part of this Act's documentation are no statistics of the frequency of death or injury directly associated with intoxicated doctors.

The basis for creating a law which invades, under penalty, the personal privacy of a physician should be supported by facts regarding the actual incidence of drug and alcohol intoxicated physicians performing medical or surgical practice and the incidence of adverse events specifically attributed to the physician's intoxication. Without some attempt to establish the facts, simply creating a law requiring invasion of privacy on assumptions or just to ease the public's worries, to me, seems unethical. Can anyone visiting this thread present references regarding the results of studies aiming to get the necessary facts? ..Maurice.

 
At Thursday, May 22, 2014 9:37:00 PM, Blogger Maurice Bernstein, M.D. said...

Ed, of course, the harmful consequences, if they occur, of any single patient being treated by a drug impaired physician whose actions or inaction created that result is not to be ignored. But, if such an event is exceedingly rare, should laws be passed which deny personal rights allowed to others, simply that this rare event can occur? This is the issue. And without the facts, should laws be passed on the basis of "it just feels that it is the right thing to do"? This is an important point and should be ethically considered in the creation of all laws and regulations. ..Maurice.

 
At Saturday, May 24, 2014 5:33:00 PM, Blogger Maurice Bernstein, M.D. said...

Here in 2 parts, is a review of the topic written today to our blog thread by OSI, but for some reason could not be automatically published. ..Maurice.

PART I/II


I think that there are issues here that need be addressed:



One is that we clearly do not understand r-i-s-k. Consider: e.g., http://www.nytimes.com/2014/05/07/upshot/universal-mammogram-screening-shows-we-dont-understand-risk.html ; or

http://www.john-adams.co.uk/2013/10/17/slides-from-my-lecture-on-the-public-perception-of-risk/ ).



Not a clue. Period.



A second is that people change roles in life, yet seem to think (believe? for that is the holding of a position in the absence of fact) that despite their change of roles, they have a right to the same privileges of privacy as before that change.



Consider: Not being a physician ... then becoming a physician. Not being an attorney ... then becoming an attorney. Not being a pilot ... then becoming a pilot.



The enjoyment of privacy in any of the latter states is not the same as the enjoyment of privacy in any of the former.



In particular:

--one may earn a degree or develop a specialized expertise--whether it be a medical or law degree, or for example training as a pilot; and

--the people, the public (whether through a State medical licensing board, a State Bar association or Court, a State board overseeing nursing or engineering, a pilot-licensing authority or whatever field) act to allow one to employ the knowledge enfolded in that degree/expertise,



then the privilege of privacy changes dramatically.



Some may disagree with that line of thinking, and they may also question whether others have a right to know who is paying a physician's freight where papers and presentations and drugs are involved. No doubt they will continue to disagree and question in the future--and it is their right to do so.



But they well know that--at day's end--they cannot and must not prevail in the real world.



The public, the people, the State has in-vested these professionals and their professions with certain authority(ies).



For example, what greater authority might there be than to:

--push a blade or a drill into the body of another, or

--carry others to 30,000 feet, or

--advance others' rights to life, liberty, property in a court of law or before (or through) a government agency?



As a former federal civil servant, my annual income and liabilities were a matter of public record--as were those of my colleagues--for my 14 years as an attorney at one agency and my prior eight years at another. And in my decade-plus of prior private practice (or even after, for that matter), the State Bar, under the authority of the State Supreme Court, could see my personnel and professional financial records in a blink had there been a question.



The public has a right to know if and when one is not in a physical and mental state to exercise those public-granted powers or in a financial position that is or may be in conflict with one's professional duties.



The drug testing of airline crews, first military and then commercial--cockpit and cabin--arose during the Reagan administration in 1981 and 1986/87, respectively. Executive policy became statutory with the Omnibus Transportation Employees Testing Act of 1991.(See also: DOT and FAA regulations (49 C.F.R. part 40 and 14 C.F.R. part 120).



As for physician testing, the point was raised in an opinion piece in the NYT earlier this year: "Why Aren’t Doctors Drug Tested?" (http://www.nytimes.com/2014/03/13/opinion/why-arent-doctors-drug-tested.html ).

OSI

 
At Saturday, May 24, 2014 5:37:00 PM, Blogger Maurice Bernstein, M.D. said...

Continuing from OSI. ..Maurice.
PART II/II


For professionals such as physicians and attorneys who get their knickers in a twist about drug testing, I think that they need consider their positions in this nation. A 2011:

--census of physicians in the U.S. (based on 2010 data) put the number at something more than 850,000 (https://www.nationalahec.org/pdfs/FSMBPhysicianCensus.pdf);

--census of attorneys in the U.S. (based on 2010 data) put the number at something more than 1,225,000--but with only about three-quarters of that number actually in private practice (http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2011.authcheckdam.pdf );

--U.S. Census Bureau analysis put the U.S. population at something near 311,600,000 (http://www.census.gov/popest/data/state/totals/2011/).



Whine and complain as we might about this or that perceived intrusion upon our privacy, those of us who enjoy the status of physician or of attorney comprise, respectively, 0.0027 and 0.0029 percent of the U.S. population.



That is pretty honored ground. (I can hear in my mind's ear a late family member saying that we "ought to get down on our knees and thank God." I have Jewish colleagues, so I appreciate that kneeling may not always be an option. What? Would a genuflect here or a bow there be too much to ask, already?)



And, yes: If one is providing clinical care and/or are doing human-use/human subject research, then not only should one have to pee-in-the-cup, but the rest of the world also has a right to know exactly who is putting money into one's pocket--and exactly how much. (OSI)

End Part II/II

 
At Saturday, May 24, 2014 7:58:00 PM, Blogger Hexanchus said...

What OSI said...

Commercial Pilots, Railroad Engineers, Commercial truck drivers, bus drivers and many others whose jobs, if not performed properly (i,e, not under the influence of drugs or alcohol) may adversely affect safety of others, are subject to drug testing - why should physicians be any different?

Hex

 
At Thursday, June 05, 2014 11:07:00 AM, Anonymous Anonymous said...

A recent article in JAMA, "Identification of Physician Impairment" suggests that undetected physician impairment may be contributing to medical error and that sentinel-event and random alcohol-drug testing could be implemented to address the problem as is being done in the current "Physician Health Program (PHP)" system.

The most consequential and critical issue for physicians, if this comes to fruition, is who will be in organizational and managerial control of the system and what ideological influences will be guiding policy and practice. It is concerning that one of the co-authors of this article, Greg Skipper, is a Fellow of the American Society of Addiction Medicine with strong ties to the 12-step treatment industry and drug testing industry.

One only has to look at the history of the ASAM and FSPHP to see that it is essentially a corporate "front-group" for AA, similar to the National Council on Alcoholism and Drug Dependence (NCADD), an organization that promotes the AA agenda yet claims to have no formal ties to AA. The ASAM and FSPHP are front organizations set up and controlled by AA.

ABAM "board certification" is a sham. It is not recognized by the ABMS but they are fervently lobbying for this and will probably be successful. They have convinced medical societies and medical boards of their "expertise" with a torrent of strategic lobbying efforts on behalf of the 12-step addiction treatment industry towards the AMA (and indirectly thought the FSPHP towards the AMA), APA, FSMB, ABIM, JCAO, CSAT, consumer groups, state medical societies, congress, correction agencies, the media, and others.

Even more concerning is that none of the ASAM generated studies that they use to promote the success of their programs nor the junk science they use (EtG, PEth for alcohol screening) has been the subject of critical review or scrutiny. There is no evidence base for the system or testing methods that they currently use as a successful model to be applied to other populations. No ASAM studies have been reviewed by the Cochrane Collaboration.

 
At Thursday, June 05, 2014 11:16:00 AM, Blogger Michael Langan said...

They are not currently comparable in the current system. The groups you mentioned all have procedural protections and safeguards because the EAP (Employee Assistance Programs) were developed in collaboration with unions or other organizations working on behalf of the employers best interests. In physicians there is no oversight or regulation and the EAP programs have been usurped by unqualified "impaired physicians" who are in "recovery" and "board certified by the ASAM (not recognized by the ABMS).. Federal Drug Testing Guidelines, DOT, or some other system that provides a high level of procedural protection with strict chain-of-custody, custody and control form, MRO review, split specimen with the right to challenge at an independent lab of your choice, an appeal process, etc. Moreover, you are tested for a specific number of substances with FDA approved tests with cutoff levels that have been well thought out. (probably 5-12) And there is no way you are bI doubt you are being tested with long term alcohol biomarkers, hair, nails, etc. So the statement "if I have nothing to hide, then I should be thrilled to (constantly) prove to everybody that I don't do drugs approaches being completely correct but it is not 100% correct. Human error and false positives are a problem even under the best of circumstances. As an MRO for the MBTA I have thrown out several positive tests (mostly for PCP) after careful interview and analysis. The point is you need procedural safeguards as well as accuracy and honesty.

Now let's look at PHPs (Physician Health Programs) populated by the "impaired physicians movement." They tend to think in black and white and don't believe in cutoff levels. ("it's either their or it ain't" I heard one misguided MRO for a PHP tell a doctor once) and as untrue as this statement is there is no arguing with this type of mentality. Secondly they have introduced tests such as long term alcohol biomarkers such as EtG, PEth, EtS that are not FDA approved. They are laboratory developed tests (LDTs) and there specificity is unknown. The only drug testing systems that use these tests are those where the power differential is very high (prisoner, guard type relationship). The PHP -Doctor relationship exceeds that of the prisoner-guard. They are using long term (*biomarkers (weeks to months), alcohol, "health professionals panels," etc. etc. Of course they are making a ton of money off this as doctors are tested 1-3x per week and it is self pay. Any positive, innocent, explained, caused by a valid prescription results in being evaluated at an out of state facility.

So this is comparing apples and oranges.

 
At Thursday, June 05, 2014 11:21:00 AM, Blogger Maurice Bernstein, M.D. said...

In the United States, all physicians are licensed to practice their profession by each individual state and their state medical boards. I would look to each state to set standards, perform and be responsible for the random testing of physicians and not be dependent upon any private organizations. ..Maurice.

 
At Friday, June 06, 2014 8:21:00 AM, Blogger Maurice Bernstein, M.D. said...

I still have a couple questions unanswered. What is the statistical risk of a patient at any one time to be examine and/or treated by a physician who is at that time intoxicated with drugs or alcohol?

And is comparing magnitude of the risks involved between a intoxicated commercial airline pilot and an intoxicated physician, both performing their duties dealing with the number of humans affected in one negative event and the severity of the injury (including death) for those involved in that single event.

These statistics should be an important part of the rationale and decision with regard to universal random testing of all physicians compared to airline pilots. ..Maurice.

 
At Wednesday, June 11, 2014 6:11:00 PM, Anonymous Anonymous said...

Dr Bernstein, since physicians are not randomly tested uniformly or widely, there's no data to address statistical risk. Furthermore, I'm willing to bet the numbers are similar between patients and passengers on a daily basis either receiving care or flying. If correct, I would argue the statistical risk is greater to patients simply because providers aren't subject to the deterrent effect of random screening. Finally, the numbers of providers actually involved in a single patients care (OR for example) is dramatically higher when compared to two pilots flying hundreds of passengers from point A to B. Their professional career and livelihood is on the line and they know it!

For the period 1995 through 2002, the most recent data I could easily find, the FAA reported a prevalence rate of 0.03% for flight crews subject to random screening or post accident/incident alcohol testing.

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2041869/

The only accident I could find actually attributed to illicit drug use occurred in 1988.

http://www.nytimes.com/1989/02/02/us/drug-use-ruled-a-cause-in-plane-crash.html

Statistically, those are pretty low numbers. And the procedural protections and safeguards we enjoy to ensure random screening is administered uniformly and objectively can be applied to physicians and ancillary staff as well. Finally, I previously asked how does random screening violate a physician's personal privacy and what are the professional consequences for a negative test; please elaborate.

Ed

 
At Wednesday, June 11, 2014 7:21:00 PM, Blogger Maurice Bernstein, M.D. said...

Ed, there would be virtually no professional consequences to required random testing of physicians if the test result is negative. There would be profound temporary, if not permanent, consequences if the test result was erroneously positive, a result which is certainly possible. And then what?

With regard to violation of personal privacy, personal privacy has Constitutional and general legal support in many areas of society. At times, everyman's privacy must be invaded, but for a valid cause. In the case of physicians having their blood or urine tested the cause should be well established by statistics demonstrating substantial life or health risks to patients and society if physician privacy is not invaded. This entry into anyone's privacy (home,blood or urine or whatever) demands some facts supporting necessity and not.without the facts, simply for the public to attain the comforting "peace of mind". ..Maurice.

 
At Tuesday, July 15, 2014 7:52:00 AM, Blogger M Banterings said...

I have to agree with Maurice.

It may surprise those of you who read my other comments that I am AGAINST drug testing. Things like this have been rammed down our throats "to keep us safe." Just like the modesty debate, the unseen harm is ignored.

Drug testing treats us all as criminals. There is no "innocent until proven guilty," the concept assumes you just haven't been caught yet.

Look what it has done to our schools: they now resemble prisons they assume all students are criminals.

Metal detectors, pat downs, no cell phones, uniforms, lock downs, etc. am I describing a high school, a prison, or both?

The patriot act and the NSA wire taps are too keep us safe. Those who say I am doing nothing wrong so they can look don't see the harm done to civil liberties.

Whether discussing civil liberties or medical safety, consider this:

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” -Ben Franklin

 
At Thursday, August 21, 2014 10:10:00 AM, Blogger OMINTWIZO said...

Dr. Greg Skipper is a convicted felon. He was convicted of theft and possession of controlled substances in November of 1990 in Hamhill County, Oregon. He served three years probation. Prior to that he was in trouble with the Oregon Medical Board for illegal use of controlled substances from at least 1982 to 1986. Google Greg Skipperfelon. OMC

 

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