California voters who go to the polls on November 4, 2014 will be faced with the public safety issue whether doctors in California should be tested for drug and alcohol abuse, which is contained in California’s Proposition 46.
Part of the Official Summary for Proposition 46 states, “Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence.”
Four relevant sections of Proposition 46 provide as follows:
2350.20. Every physician shall, and any other person may, report to the board any information known to him or her which appears to show that any physician may be or has been impaired by drugs or alcohol while on duty, or that any physician who was responsible for the care and treatment of a patient during an adverse event failed to follow the appropriate standard of care. Notwithstanding any other provision of law, any physician or other person who in good faith makes such a report to the board shall not be liable under any law of this state for any statement or opinion made in such report.
2350.25. (a) Upon the effective date of the regulations adopted by the board to implement this article, hospitals shall conduct testing for drugs and alcohol on physicians as follows:
(1) On a random basis on physicians who are employees or contractors or who have the privilege to admit patients.
(2) Immediately upon the occurrence of an adverse event on physicians who were responsible for the care and treatment of the patient during the event or who treated the patient or prescribed medication for the patient within 24 hours prior to the event. Testing shall be the responsibility of the physician, who shall make himself or herself available for testing at the hospital as soon as possible, and failure to submit to testing at the hospital within 12 hours after the physician learns of the adverse event may be cause for suspension of the physician’s license.
(3) At the direction of the board following a referral pursuant to Section 2350.20 on a physician who is the subject of a referral.
(b) The hospital shall bill the physician for the cost of his or her test and shall not pass on any of the costs of the test to patients or their insurers.
2350.30. Hospitals shall report any verified positive test results, or the willful failure or refusal of a physician to submit to a test, to the board, which shall do all of the following:
(a) Refer the matter to the Attorney General’s Health Quality Enforcement Section for investigation and enforcement pursuant to Article 12 (commencing with Section 2220).
(b) Temporarily suspend the physician’s license pending the board’s investigation and hearing on the matter pursuant to Article 12 (commencing with Section 2220).
(c) Notify the physician and each of the health facilities at which the physician practices that the physician’s license has been temporarily suspended pending the board’s investigation and hearing on the matter.
2350.35. (a) If, after investigation and hearing, the board finds that a physician was impaired by drugs or alcohol while on duty or during an adverse event or that a physician has willfully refused or failed to comply with drug and alcohol testing, the board shall take disciplinary action against the physician, which may include treatment for addiction as a condition of licensure, additional drug and alcohol testing during a period of probation, and suspension of the physician’s license until such time as the physician demonstrates to the board’s satisfaction that he or she is fit to return to duty.
(b) If the board finds that a physician was impaired by drugs or alcohol during an adverse event, the board shall inform the patient or, in the case of the patient’s death, the patient’s family, of its determination.
In this day and age when public safety workers are routinely subjected to drug and alcohol testing as a condition for their continued employment, it would seem to many that it is long overdue and based on common sense that doctors, who are responsible for the public’s health, should be subjected to drug and alcohol testing too. Even the California Medical Association has not opposed the concept of some form of drug testing, although it believes that the provisions with regard to drug testing contained in Proposition 46 are defective and inappropriate.
What may come as a surprise to some people is that two well-known and respected public advocacy groups have come down on different sides of the Proposition 46 drug and alcohol testing debate.
It was recently reported that the associate director of the ACLU of Northern California criticized the drug-testing provisions of Proposition 46 because they do not limit drug testing of doctors to those doctors who are in “safety-sensitive” positions (like pilots) and also unfairly expose doctors who fail the tests to the risk of losing their medical licenses.
In response, Consumer Watchdog published on its website the August 25, 2014 letter from the father of two small children whose tragic and avoidable deaths were the impetus for Proposition 46 in which he responded to the ACLU’s criticism regarding the proposed the drug and alcohol testing of California physicians, which stated, in part: “How can the ACLU contend that some doctors are not in “safety sensitive” positions? Explain to me and the voters of our state when and in what circumstances a doctor is not in a “safety sensitive” position. Likewise, please spell out for me and the voters in what circumstances and why a doctor who practices while drunk or on drugs should not be potentially at risk of losing their medical license … As was reported recently by USA Today, more than 100,000 health care professionals currently are battling substance abuse problems around the nation. Add to that list those abusing alcohol, and the number swells to more than 500,000. California’s own Medical Board has estimated that 18% of the state’s physicians will suffer substance abuse sometime during their lives, and that up to 2% could be abusing drugs or alcohol at any one time … I understand the ACLU has never been a fan of drug or alcohol testing in any form, even when it comes to safety sensitive positions such as airline pilots, and has consistently opposed the use of DUI checkpoints as a form of deterring drunk driving. Such stands put the ACLU at odds both with public opinion and, frankly from my perspective, with common sense.”
California voters will have the final say on November 4, 2014 as to whether California physicians should be subject to drug and alcohol testing as required by California’s Proposition 46.
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