Excerpt from 'Physicians with Health Conditions: Law and Policy Reform to Protect the Public and Physician-Patients'.

• Author: Bailey, Tracey M.
• Position: Excerpt

Preface

The following excerpt from the Health Law Institute Policy Paper, titled Physicians with Health Conditions: Law and Policy Reform to Protect the Public and Physician-Patients, (1) introduces the reader of this Special Edition of the Health Law Review to the issues, processes and outcomes (including recommendations) related to the Policy Paper, which was first distributed and made available on-line in the summer of 2012.

Serving as an introduction, we urge readers to refer to the report in its entirety to gain a complete picture of the research that went into completing this work. For example, the full report contains sections addressing, inter alia:

i. A description of the mandate, roles and responsibilities of the Alberta Medical Association (AMA) and the College of Physicians & Surgeons of Alberta (CPSA), and consideration of the processes and relationships between them as they then existed;

ii. Consideration of key components of physician health programs;

iii. Consideration of the principles that guided the HLI-coordinated Working Group throughout the process;

iv. A summary of notable points extracted from an extensive review of other jurisdictions, including the Canadian provinces of British Columbia and Ontario, and the approaches to physician health and wellness taken in the United Kingdom, Norway, the United States of America, Australia and New Zealand; and

v. Legal issues that informed the working group's recommendations, including those regarding physician's obligations.

We would once again like to thank the members of the HLI Working Group, namely Sister Elizabeth Davis, Dr. Philip Hebert and Professor William Lahey, and, of course, both the AMA and CPSA for their continued work on this important set of issues.

Tracey M Bailey and Cameron Jefferies

April, 2013

1. Introduction/Background

   1. Introduction

      The impact of health issues on physicians' practices has recently garnered considerable media attention as one of the ways in which our health care system fails, in some instances, to protect patients from harm. At the outset, we acknowledge that there are a variety of issues that impact patient safety; it is beyond the scope of our research and this report to address all of these issues. However, this analysis focuses on the issue of health conditions of physicians that lead to a negative impact on practice. It examines how the medical profession can best ensure that the public is protected, while appropriately addressing the needs and rights of physicians as patients.

      The issues addressed in this policy paper are much more than theory; they have real-life consequences and are of concern to patients and society at large. Recent reports illustrating this matter have received considerable attention in North America. It is appropriate to begin this discussion with a brief summary of a few examples.

      The winter 2011 issue of International Anesthesiology Clinics (49:1), titled Anesthesia and Addiction, was dedicated exclusively to articles discussing the issue of addicted anesthesiologists. Dr. Ethan Bryson, associate professor at Mount Sinai School of Medicine (located in New York, New York), author or co-author of many of the articles in this special edition, and author of the forthcoming book titled Addicted Healers: 5 Key Signs Your Healthcare Professional May Be Drug Impaired, describes how addicted physicians will sustain their addictions by diverting drugs from patients. He states that anesthesiologists (who perform life-sustaining functions during surgical interventions) represent up to 30% of all addicted physicians in the United States. (2) Anesthesiologists continuing to practice while impacted by drug addictions may be extremely harmful for patients, potentially leading to injuries such as patient paralysis or irreversible brain damage. (3)

      The second example is contained in an article published in the Archives of Surgery in February, 2012, which concludes that "[a]lcohol abuse and dependence is a significant problem in US surgeons." (4) This analysis based on existing data found that the percentage of US physicians suffering from a substance use disorder is between 10-1 5 %. (5) Building from this understanding, the authors of this article surveyed American surgeons to determine the rate of alcohol misuse amongst this subset of physicians, and assessed whether or not this alcohol use was associated with incidents (defined as medical error and/or resulting medical malpractice lawsuits) based on self-reports in the survey. (6) The survey employed indicated that 15.4% of responding surgeons met diagnostic criteria for alcohol dependence or alcohol abuse. (7) Additionally, this cross-sectional study stated that "surgeons with alcohol abuse or dependency were substantially more likely to report a major medical error in the last three months, suggesting a potential relationship with quality of care." (8) The authors conclude that this "provides further evidence in support of a proactive approach to identify and treat a prevalent disorder that may affect the surgeon's ability to practice with skill and safety." (9) Finally, this article is of import as it pointed out the perceived stigma and shame that physicians (and surgeons in particular) associate with admitting to, or accepting treatment for, a chemical dependence. The authors conclude with the hope that increasing discussion will work to reduce such shame and stigma, and alter the culture, such that individuals will be less reluctant to seek the assistance they require. (10)

      There are many conditions that can affect physicians besides addictions and substance use. An area of concern currently receiving considerable attention in Canada is mistakes made in pathology and diagnostic imaging. While such errors can occur as a result of a wide range of factors, some recent cases have indicated that errors have occurred, at least in part, as a result of physician impairment due to factors such as physical health conditions. These examples raise important questions not only about impairment, but also about how effective current medical regulatory schemes are at preventing medical mistakes, as well as overseeing and managing the repercussions of harm that do occur, regardless of whether the source of harm was physician impairment or other unrelated factors. Recently, concerns about mistakes or oversights in assessing diagnostic laboratory tests have become public in Ontario, New Brunswick and Alberta. One report alleges that a pathologist, serving at the Hospital of Miramichi in New Brunswick from 1993-2007, was operating with error rates up to 1000% higher than pathology standards. (11) A review of his practice by two physicians indicated that he suffered from a significant tremor and cataract-affected vision; it was on the basis of their review that the College of Physicians & Surgeons of New Brunswick suspended his license to practice. This issue is currently before the courts in New Brunswick as a medical malpractice class action. (12) Similarly, alleged misdiagnosis based on pathology reports completed by one pathologist, serving three hospitals in Windsor, Ontario, resulted in a formal investigation as ordered by Ontario's Minister of Health and Long-Term Care. (13) The physician who made these alleged errors suffered from cataracts that affected his ability to properly assess pathology, yet he kept practicing. His colleagues, despite noticing errors in his reports, did not notify the College of Physicians & Surgeons of Ontario. (14) Alberta has initiated a review of pathology testing and diagnostic imaging in light of errors at three hospitals throughout the province (in Calgary, Edmonton, and Drumheller) in the last few months of 2011. While it is too soon to comment on whether the concerns, if substantiated, are related in part to issues of physician impairment, this review will be important to take into account if such factors are indicated. (15)

      It is understandably quite disconcerting for the public to read about physicians affected by a condition that could jeopardize patient well-being. This is especially so if the appropriate mechanisms are not in place, and/or there is a perception that they may not be in place, to protect the public from the physician whose practice has been compromised. Trust between patient and physician, and trust in the health care system generally, is essential to build...