The legal aspects of addressing physician addiction can be thorny and complex. The first legal and ethical obligation of a clinic or hospital after discovery that a staff physician has an addiction is to safeguard patients by removing the physician from practice and counseling the physician to take a leave of absence for treatment. State laws vary on drug testing of employees.21
Some states disallow drug and alcohol testing unless the employer has a written drug and alcohol testing policy in place that meets certain legal requirements. Some state laws restrict random testing and limit grounds for testing based on “reasonable suspicion.”
State medical licensing boards typically require physicians to self-report and to report on other physicians who are unable to practice medicine safely because of drug or alcohol use.22
Most states have a bypass mechanism that allows foregoing of a report to the state licensing board and instead allows a report to the state's PHP to satisfy this requirement.23
However, these bypass programs may have eligibility requirements that exclude certain physicians from participating and require a report to the medical board. Typical exclusions are for physicians who are already under licensing board discipline, those who previously have been terminated from a professional rehabilitation program, those who have diverted controlled substances for other than self-administration, or those whose continued practice of medicine would create a serious risk of harm to the public.24
As long as the reported physician complies with the practice limitations and continuing care requirements of the rehabilitation program and abides by the requirements of the PHP, the physician engaged in a bypass program typically can avoid formal, public reprimand or disciplinary action by the licensing board. However, in California, such a bypass rehabilitation program has come under public attack for permitting impaired physicians to continue to practice and for not being effective in adequately protecting patients from substandard care.25
Federal laws, such as the Americans with Disabilities Act,26
and state civil rights laws27
generally protect physicians actively engaged in chemical dependency treatment programs as well as recovering addicts. These laws generally require “reasonable accommodation” for the recovering alcoholic and drug addict, such as a modified work schedule. (However, the Americans with Disabilities Act specifically excludes as a covered disability “psychoactive substance abuse disorders resulting from current illegal use of drugs.” 28
) Furthermore, federal and state laws mandate job protection, typically up to 12 weeks, during a medical leave for addiction treatment.29
When a physician returns to work after addiction treatment, employers and hospitals generally can impose restrictions on employment, as described in the previous section. Clinics and hospitals should spell out for the returning physician the consequences of a relapse or failure to comply with any of the return-to-work conditions.
Is an impaired or recovering physician required to disclose this status to patients as part of informed consent? State courts are split on this issue. For example, in 2000 the Georgia Supreme Court ruled that no cause of action existed against a physician for his failure to disclose his drug (cocaine) use to his patient before a surgical procedure and that this failure did not void the patient's informed consent to the procedure.30
In contrast, a Louisiana appellate court ruled in 1991 that a surgeon's failure to disclose his alcohol abuse voided the patient's consent to a lumbar spine procedure.31
The court reasoned that the alcohol abuse created a material risk relating to the physician's ability to perform the surgery, and if the physician had disclosed this information, the patient could have opted for another type of treatment.