Impaired physicians. An overview and update of the legal issues.

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Impaired physicians Robert S. Walzer M.D., J.D.

a b

a

Assistant Clinical Professor of Psychiatry , Albert Einstein College of Medicine , New York b

Reiss, Walzer, & Starks , 383 Main Avenue, Norwalk, CT, 06851 Published online: 23 Jul 2009.

To cite this article: Robert S. Walzer M.D., J.D. (1990) Impaired physicians, Journal of Legal Medicine, 11:2, 131-198, DOI: 10.1080/01947649009510824 To link to this article: http://dx.doi.org/10.1080/01947649009510824

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The Journal of Legal Medicine, 11:131-198 Copyright © 1990 by Hemisphere Publishing Corporation

IMPAIRED PHYSICIANS AN OVERVIEW AND UPDATE OF THE LEGAL ISSUES

Downloaded by [New York University] at 09:58 21 May 2015

Robert S. Walzer, M.D., J.D.*

INTRODUCTION Physician impairment is the inability to practice medicine with reasonable skill and safety because of physical or mental illness including (but not limited to) aging, alcoholism, drug dependence, and habitual or excessive alcohol or chemical use or abuse.1 Notable distraction or dysfunction secondary to unremitting situational crisis, such as marital or financial stress,2 also would qualify where professional skills, conduct, or responsibilities are compromised. Burn-out syndrome, seen particularly in health care professionals and attributed to chronic overwork and fatigue, stress, and social or emotional isolation, also is a contributing factor. Reliable analyses attribute three-fourths or more of physician impairment cases to substance abuse and addiction, either "primary" or "secondary" to other underlying psychopathology.3 Various experts, and particularly some disciplinary state licensing agencies,4 dispute whether * Attorney concentrating on health law and medical-legal services. Dr. Walzer previously practiced psychiatry and psychoanalysis and was an Assistant Clinical Professor of Psychiatry at the Albert Einstein College of Medicine in New York. Address correspondence to Dr. Walzer at Reiss, Walzer, & Starks, 383 Main Avenue, Norwalk, CT 06851. The author gratefully acknowledges the assistance of Anita Oestreich, medical librarian at Norwalk Hospital (Conn.), and law librarians Christina DeLucia and Lisa Satterlund at the University of Bridgeport. Thanks also are expressed to the attorneys, physicians, and others who kindly gave of their time and wisdom in interviews and correspondence. Particular gratitude is owed to Dale Breaden, David Cerf, Francis Coughlin, Barbara Foster, Elizabeth George, Harry Matz, David Pavis, Hans Reiss, Jeffrey Stokols, Peter Wilson, and assistants Mary Schairer and Sheila McCue. To the author's wife, Dr. Ann Walzer, and sons Eric and Steven, words alone will not convey the appreciation felt. 1

FEDERATION OF STATE MEDICAL BOARDS, A GUIDE TO THE ESSENTIALS OF A MODERN MEDICAL PRAC-

TICE ACT (1988). 2

Compulsive gambling, as a source of financial and emotional stress, may result in impairment. See MEDICAL SOCIETY OF NEW JERSEY, PROTOCOLS FOR MANAGEMENT OF PHYSICIANS ALLEGED TO B E

IMPAIRED (1986). 3

DEPARTMENT OF HEALTH & HUMAN SERVICES, REPORT OF THE INSPECTOR GENERAL ON MEDICAL MALPRACTICE AND IMPAIRMENT (1986).

131


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chemical dependency impairment should be viewed as a disease or a manifestation of psychopathology. The overwhelming weight of authority is on the side of the disease theory, inclining towards a genetic predisposition that may be enhanced by personality or psychological vulnerability plus the nature and stresses of the practice of medicine.5 Similar debate concerns various forms of professional misconduct that arguably arise out of, or are symptomatic of, substance abuse or emotional problems in impairment and whether such underlying disorder mitigates guilt or the sanction to be imposed. The American Medical Association (AMA) has estimated that as many as 7% to 10% of practicing physicians are impaired.6 Other estimates go as high as 12% to 14%.7 In 1987, the New Jersey State Commission of Investigation estimated the incidence of impairment among physicians to be up to 16% and complained of the apparent inability of the Board of Medical Examiners and the State Medical Society to detect and cull out these impaired practitioners.8 The New Jersey report includes references to physicians who have sexually assaulted patients, were grossly manic and incompetent while making hospital rounds, or have been under the influence of alcohol or drugs in the course of patient care.9 In a responsible study in Georgia, 21 of 1000 (2.1%) substance abusing physicians were found in medical evaluation to be free from actual professional impairment; 920 (92%) were given a primary diagnosis of chemical dependence; and, 59 (5.9%) were diagnosed as having a primary psychiatric disorder.10 Contrary to a common assumption, the frequencies with which impairment and alcoholism are found within the medical profession do not 4

See COMMONWEALTH OF MASSACHUSETTS BOARD OF REGISTRATION IN MEDICINE, CHEMICALLY DE-

PENDENT PHYSICIAN POLICY (1988). Hereinafter, all state medical regulatory agencies will be referred to as "medical licensing boards" or "boards." 5

See Mirin & Weiss, GENETIC FACTORS IN THE DEVELOPMENT OF ALCOHOLISM, 19 PSYCHIATRIC AN-

NALS 239 (1989) ("Research over the last 20 years leaves little doubt that the risk for developing alcoholism is influenced by genetic factors"). See generally AMERICAN MEDICAL ASSOCIATION, 8TH NATIONAL CONFERENCE ON IMPAIRED HEALTH PROFESSIONALS (Conference Syllabus 1987); AMERICAN MEDICAL ASSOCIATION, MODEL IMPAIRED PHYSICIANS TREATMENT ACT (1985); AMERICAN PSYCHIATRIC ASSOCIATION, GUIDELINES TO DISTRICT BRANCHES FOR AN IMPAIRED PHYSICIAN PROGRAM

(1980). 6

PROCEEDINGS OF THE AMERICAN CONFERENCE ON THE IMPAIRED PHYSICIAN (1977).

7

Talbott & Benson, Impaired Physicians: The Dilemma of Identification, 68 POSTGRAD. MED. 56, 56 (1980).

8

REPORT AND RECOMMENDATIONS OF THE STATE OF NEW JERSEY COMMISSION OF INVESTIGATION ON IMPAIRED AND INCOMPETENT PHYSICIANS 2 (1987).

9

10

See McLaughlin v. Board of Medical Examiners, 35 Cal. App. 3d 1010, 111 Cal. Rptr. 353 (1973) (alleged public homosexuality affecting professional competency); Grannis v. Board of Medical Examiners, 19 Cal. App. 3d 551, 96 Cal. Rptr. 863 (1971) (alcoholism "dangerous or injurious to the licensee, to any other, or to the public"). Talbott, Medical Association of Georgia's Impaired Physicians Program: Review of the First 1000 Physicians, 257 J.A.M.A. 2927 (1987).


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differ from incidence in other comparable populations such as pharmacists, dentists, attorneys, or psychologists." However, a poll of 500 Massachusetts physicians found that "one third of the physicians [polled] reported recent psychoactive drug use, with one in four currently [self-treating] and one in ten currently using a drug recreationally. . . . [A]nalysis showed that [this drug use] increased the risk of impairment." While the poll produced a three percent admission to drug dependence by respondents, another four percent were found likely to abuse drugs at some time.12 Detection and diagnosis of an individual case of physician impairment generally is difficult for at least five reasons. First, the impairment is typically gradual in onset, except in the cases of some life crisis that generates sudden and usually brief distraction that spontaneously resolves. Second, a physician may not be aware of the impairment, or may tend to conceal it.13 Third, physicians generally avoid and resist treatment.14 Fourth, it is difficult or embarrassing for a patient, employee, or colleague to risk being impolite or tactless in pointedly raising the observed problem in conversation with the physician in question. And fifth, there is the fear of appearing malicious or defamatory in mentioning the observations to others. These difficulties ultimately have led to the development of a duty to report another's impairment, at least for hospitals and knowing colleagues. This duty, seen under the rubric of peer review for the interest of the public and the profession, typically accompanied by a grant of immunity from civil suit, is discussed herein. Often, an impairment problem arises, or becomes apparent, because of the concurrence of two or more contributory disorders or sources, such as habitual self-medication and marital disharmony, or substance abuse and aging. Aging increases vulnerability, and so does stress, chronic discontent, or physical illness. Alcoholism can bring out personality disorders; the converse also is true. In fact, until the American Psychiatric Association established alcoholism as one of several substance abuse disorders 11

12

Brewster, Prevalence of Alcohol and Other Drug Problems Among Physicians, 255 J.A.M.A. 1913 (1986); McAuliffe, Rohman, Santangelo, Feldman, Magnuson, Sobol, & Weissman, Psychoactive Drug Use Among Practicing Physicians and Medical Students, 315 NEW ENG. J. MED. 805 (1986). McAuliffe, et al., supra note 11, at 808 (psychiatrists were the greatest users of drugs among physicians polled in this study, anesthesiologists were second with half as many, primary care physicians third, and surgeons fourth). See also WASHINGTON STATE BOARD OF MEDICAL EXAMINERS, STATISTICAL REPORT, MONITORED TREATMENT PROGRAM (1988) (of 65 health care professionals

treated in the year, the largest specialty representation was anesthesiology (22%), while next came family practice (14%), and psychiatry was third (5%); 7% were female physicians; two of the 65 subsequently died by their own hand). 13 Valaske, The Impaired Physician: What He Doesn't Know Will Hurt Him, 34 M D . MED. J. 558 (1985). 14 See Talbott, The Impaired Physician and Intervention: A Key to Recovery, 69 J. FLA. MED. A. 793 (1982) (an individual has a tendency to deny or not recognize frightening symptoms of physical "devastation" and "loss of control"; impairment and underlying diseases tend to be "secret").


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grouped separately in its Diagnostic and Statistical Manual,15 the longstanding medical view was that alcoholism either was a personality disorder or always arose from one. This nosologic change made it more possible for researchers to study coexisting psychiatric disorders, including chemical dependence.16 Because impairment is a result or manifestation of illness (doubts of the Massachusetts Board of Registration in Medicine notwithstanding),17 it is usually treatable. And, because of a general interest in returning capable physicians to the professional work force serving the public, the trend has been to develop and provide specialized treatment and to postpone police action by the state boards of medical examiners (licensing boards) that would deprive the physician of the license to practice. This also serves the humane interest of permitting able physicians to continue to work productively. Treatment of impaired physicians tends to run a higher success rate than for like disorders in the lay population, with reliable figures reported in the area of 78% to 87% success after five or more years of followup.18 Treatment involves major rehabilitative effort, either in daily therapy and supervision, with random monitoring of blood or urine, often after a month or more of in-patient hospital care, or in a professionally recognized rehabilitation program.19 There are medical licensing boards in each of the 50 states, and in the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. In addition, there are 16 separate state boards of licensure in osteopathic medicine. These boards were legislatively created to establish educational standards and to evaluate and regulate medical practitioners in order to maintain the level of professional standards of conduct for public safety. The spectrum of disciplinary actions that are available to these boards ranges from mere confrontation of the physician and an agreement upon a rehabilitation program without license restriction to a formal hearing and decision process that could result in a suspension or revocation of the license to practice. However, the actual number of licensing board disciplinary actions for incompetence and impairment is far lower than expectations based on the above estimates of impairment among practicing physi15

AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS,

IIIR (1987). Nace, Personality Disorder in the Alcoholic Patient, 19 PSYCHIATRIC ANNALS 356 (1989). PHYSICIAN POLICY, supra note 4, at 7 (outlining some prevalent theories of underlying causes of impairment, which the Massachusetts licensing and disciplinary board divides as either illness or misconduct categories, and implies a skepticism rare in the literature about the illness view). 18 Telephone interviews with D. Cerf, Director, Arizona Board of Medical Examiners (Mar. 1989); Telephone interviews with D. Canavan, Director, Impaired Physician Program, New Jersey Medical Society (Mar. 1989). 19 Talbott, Treating Impaired Physicians: Fourteen Keys to Success, 113 VA. MED. J. 2, 95 (1986). 16


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cians at some point in their careers.20 Generally, this is attributed to silence on the part of colleagues and other professionals who know that a particular physician is impaired.21 The medical licensing boards cannot act without information provided by informants that would trigger investigation. The Federation of State Medical Boards (Federation), a nongovernmental association that links the state licensing boards and maintains the Federation Board Action Data Bank (until mid-1989 known as the Physician Disciplinary Data Bank), received information in 1987 on 2300 cases of discipline for all reasons. Of these, professional impairment was a small part primarily because, as subsequent text will explain, most identified cases comply with the board's or medical society's coercive effort to intervene with rehabilitation and are treated confidentially. Only uncooperative impaired physicians are formally disciplined and reported to the Federation by the member boards. With increasing concern for public safety and the escalation of medical malpractice litigation, state legislatures have been enacting and amending statutes addressing the problems of detecting, investigating, disciplining, and/or rehabilitating impaired physicians. While medical societies previously had been privileged to police the ranks of the practitioners, they were admittedly lackadaisical.22 Even licensing boards, statutorily charged with disciplinary function, were reported as erratic in their efforts to suspend or revoke licenses. In the past, physicians clearly were not eager to face the problem squarely, especially through discipline, and boards controlled by physicians were reported in 1983 to have shown far less action than others not thus dominated.23 Today, this trend has reversed.24 State legislatures began to define and require approaches to the problem, primarily through sharpening the role of the licensing boards, and by creating mandatory as well as permissive reporting obligations to bring physician misconduct to the attention of a concerned public body. Issues have arisen concerning licensing board activities, confidentiality, and disclosure, with due regard to the federal Freedom of Information Act 20

21

22 23

24

Kusserow, Handley, & Yessian, An Overview of State Medical Discipline, 21 J . A . M . A . 820 (1987). Id. at 823. See Breaden, Concentrating on the Problem Physician: Perspectives in Medical Discipline, keynote address, meeting on medical discipline, Medical School of the University of Adelaide (Australia, June 18-19, 1988), reported in 7 6 F E D . BULL. 42, 50 (1989). See also Reuben & Noble, House Officer Responses to Impaired Physicians, 263 J . A . M . A . 958 (1990). Derbyshire, How Effective Is Medical Self-Regulation?, 7 LAW & HUMAN BEHAVIOR 193 (1983). Dolan & Urban, The Determinants of the Effectiveness of Medical Disciplinary Boards: 1966-1977, 7 LAW & HUMAN BEHAVIOR 2 0 3 , 215 (1983). See also Medicare Panels Accused of Laxity—Nader Aide Asserts Statistics Show that Physicians Fail to Police Their Peers, N.Y. Times, Oct. 2 7 , 1987, at A25 (noting an apparent paucity of penalties levied in disciplinary proceedings). Interview with D . Breaden, Assoc. Exec. Vice Pres., Federation of State Medical Boards (Aug. 2 1 , 1989).


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(FOIA)25 and similar state sunshine laws intended to inform the public of regulatory agency activities. Amidst a crazy quilt pattern of widely varied statutes and treatment provisions for impaired physicians, state medical licensing boards, state departments that regulate the health professions and the quality of care rendered by providers, and independent medical societies have been vying for territorial control in the management of professional duties, privileges, and conscience, as well as of the public interest in delivery of quality health care. Tort theory added its particular method of improving provision of quality health care by catching in its net those who might be negligent in reporting an implied physician's misconduct or loss of skills. Controversially, most states, and now Congress, have legislated a mandatory reporting duty to which opposition by the medical profession has become less outspoken than earlier. Until 1986, there had been limited success in the effort toward a national uniformity of standards regarding the means and responsibility for identifying impaired or incompetent physicians and separating them from the practice of medicine. With the enactment in that year of the Health Care Quality Improvement Act of 1986 (HCQIA),26 Congress entered the fray, bringing along the Department of Health and Human Services (HHS). This law presents very definite requirements for the reporting of those physicians whose professional competence is compromised, and for sharing the information with licensing authorities and hospitals across the country.27 Meanwhile, the number of disciplinary actions reported by medical licensing boards of all the states had been drastically increasing, with license revocations by the end of 1986 up 60% over the June 1986 figures. The total of formal disciplinary actions reported for 1987 by the Federation of State Medical Boards shows a 15.6% increase over the 1986 total.28 The present decade, particularly in its latter half, has produced a surge of interest and contention regarding impaired physicians and their actual and potential injuriousness to the public. This article presents an update on impaired physician issues, policies, legislation, duties, and decisions. Duties considered are those now widely established by impaired physician statutes expressing collegial and institutional responsibility for reporting physician impairment through the chain of medical society, licensing board, and agency regulating the medical profession, as well as HHS. Current issues and decisions are presented regarding this mandatory 25 26 27 28

5 U . S . C . § 552 (Supp. V 1987) [hereinafter FOIA]. 42 U . S . C . § 11101 (Supp. V 1987) [hereinafter H C Q I A ] . HCQIA addresses the problem of incompetence and does not single out impairment. 1987 total actions were 2,663; 1986 total was 2,302. B. GALUSHA & D . BREADEN, FEDERATION OF STATE M E D I C A L BOARDS, 1987

FEDERATION SUMMARY OF REPORTED DISCIPLINARY ACTIONS (1989).


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reporting and the resulting expansion of the corporate hospital liability theory regarding injuries caused by impaired physicians. The question of the duty of a physician who is treating an impaired physician-patient whose impairment has not been revealed or identified by colleagues or others to report the physician-patient as posing a foreseeable risk to identifiable others also is reviewed. The ethical duty and the evolving general policy to rehabilitate the impaired physician is addressed, but primarily as it relates to the rights of the professional, with emphasis on evolving trends regarding issues of both confidentiality and discoverability of licensing board proceedings. This necessitates a presentation of the current medical theory that addiction to drugs or alcohol is a disease rather than a characterological defect. Congressional interest and the impact of the HCQIA are considered. Current developments such as unprecedented linkage of licensing boards and medical society impaired physician programs are presented. Attention is given to newly found cooperative possibilities as well as to drawbacks that include diminution of previously hard won confidentiality of medical society review and disciplinary proceedings regarding impairment of physicians. Finally, this author reviews proposals for enhanced legislative protection of confidentiality for appropriate records, and recommends wide adoption of a uniform impaired physician treatment act. Affirmative measures for detection and prevention in medical schools are emphasized. The recommendation is made that express duties and procedures in hospital bylaws would be protective of patients, the physician who is either actually or only possibly impaired, and the colleagues, staff, and corporate hospital entity. I. PHYSICIAN IMPAIRMENT, TREATMENT, AND LICENSURE A. Professional Impairment Generally Seen as a Disease Impairment of physicians generally arises from an illness or disorder that compromises professional judgment and abilities. Substance abuse and addictive disorders comprise the largest and most significant group of underlying causes. These have been classified as disease or disorder by the American Psychiatric Association in its definitive codification of diagnoses and nomenclatures.29 This manual states that, while mood or even behavior modification through the use of particular chemicals under certain circumstances, especially recreational, is frequent and generally acceptable, the 29

DIAGNOSTIC MANUAL, supra note 15, §§ 300.0-305.0.


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diagnostic class involves regular or recurrent use of substances that produces behavioral changes in social or occupational activity. The trend of the literature and of medical association policy as cited throughout this article is to be even more exacting in the definition as applied to physicians because of their special responsibilities. While some of the afflicted practitioners voluntarily seek treatment and/or retirement (and thus are not included in any statistics), there are those who resist doing so.30 Procrastination in turning to a colleague or the medical society for assistance is understandable because, obviously, the stakes are very high—earlier retirement or reduction in professional practice as a result of license revocation or limitation. Furthermore, the impaired physician would have to admit upon reflection the unwelcome manifestations of aging, psychiatric disorder, alcoholism, drug addiction, or a degree of substance abuse interfering with competence. These are disorders that are thus typically associated with nonrecognition or denial by the sufferer, and therefore treatment is seldom spontaneously sought. Colleagues tend to turn away and not become involved with the personal problems of another physician.31 Intervention is the term used by the medical profession for the advocacy-oriented confrontation of an impaired physician, often by trained physician intervenors, upon probable cause based on information from reliable reports. B. Impaired Physician Treatment Programs and Relations Between Licensing Boards and Medical Societies Licensing boards were the original authorities, statutorily created by each state, for examining the qualifications of health professionals and, in their present form, date to the latter half of the nineteenth century.32 Separately, medical societies were organized as academic and protective bodies for the professions, espousing ethical practice but rarely involved with discipline. The struggle by the medical societies to win some control over qualification standards, peer reviews, and disciplinary monitoring began too late and lacked coherence and strength. The great significance of the first statute that addressed the problem of impaired and incompetent physicians, passed by Florida in 1969, was that a legislature recognized the illness aspect of impairment and the need for treatment rather than only a punitive approach.33 Texas followed in 1971,34 and now almost all the states and territories have some statutory 30 31 32

33 34

Talbott, supra note 14. Id. at 793. See generally Kusserow, Medical Licensure and Discipline: An Overview ( U . S . Dept. of Health and Human Services 1986). F L A . STAT. A N N . § 458.331 (West Supp. 1989). T E X . REV. CIV. STAT. A N N . art. 4495b, § 3.08 (Supp. 1989).


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provisions for dealing with physicians whose professional abilities and competence are handicapped because of drug and alcohol misuse and other illnesses. The Legal Department of the American Medical Association created a Model Impaired Physician Treatment Act that enhances the role of the state medical societies and their treatment programs. Over 30 states have adopted this model legislation, while others have drawn from it.35 Today, more than 40 states have granted licensing boards or medical societies the express authority to provide investigation and rehabilitation with varying degrees of confidentiality as an alternative to punitive law. About 42 state medical associations have treatment programs, some contracting with recognized rehabilitation centers even in other states, often under approval or even sponsorship of the licensing boards.36 The medical societies in California, New York, Connecticut, and New Jersey have acquired or negotiated a significant responsibility for investigation and intervention in reported cases of impairment. Because the nature of impairment disorders typically involves the inability or resistance to recognize or acknowledge their presence and significance, the impaired professional generally requires confrontation and coercion by others. Impaired professionals respond most reasonably when empathic confrontation and coercion are conducted by colleagues trained to do this.37 It is natural enough that there is a chronic mutual distrust between the regulatory body and those regulated. The licensing boards and agencies generally are resistant to attempts to erode any of their regulatory activity and authority. Yet, they recognize that professional societies can more easily and economically reach out to and engage the impaired colleague, without quite as much need to provide the due process and openness that the state must offer, while curbing the work load placed on already pressed licensing and regulatory offices.38 Hence, the licensing boards, regulatory agencies, and medical societies have come to some negotiated terms or protocols for cooperative interaction in the sphere of impaired physician matters.39 These agreements define the form and channels of the impaired physician investigational and treat-

35

AMERICAN M E D I C A L ASSOCIATION SUMMARY OF ACTIVITIES, IMPAIRED PHYSICIAN PROGRAMS (1988).

36

Correspondence with D . Breaden, Assoc. Exec. Vice Pres., Federation of State Medical Boards (Feb. 1989). Talbott, supra note 14. See also Gaultieri, Cosentino, & Becker, The California Experience with a Diversion Program for Impaired Physicians, 249 J . A . M . A . 226, 227-28 (1983). Kusserow, Handley, & Yessian, supra note 20. C A L . B U S . & PROF. C O D E § 2234 (West 1989). See also Protocol Governing Participation of Established Medical Organizations in the Implementation of Public Act 844-148 (Cal. 1987); S. Peck, Director, Div. of Medical Quality Assurance, letters to Conn. State Medical Society (June 15, 1987; Jan. 1988 and still current).

37

38 39


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ment processes as to the responsibilities of the state medical associations and the licensing boards. Generally, the protocols preserve the mandated licensing and disciplinary functions of the state agencies or licensing boards while designating avenues for the medical societies to identify, confront, and rehabilitate those reported physicians found to be impaired. In addition, terms are established for sharing that information deemed necessary to the other body. Usually, this centers on the disclosure of information pertaining to the failure of rehabilitative efforts or the recalcitrance of an impaired physician. There also may be expressed the procedures to be followed for investigation of reports made to the licensing board as distinguished from reports first lodged with the medical society. Such agreements can be revised or modified by the parties from time to time. Funds can be raised for the financing of the investigational and processing activities by the states through surcharges on license fees and/or by the medical societies through additional dues. Either way, the medical profession would be the ultimate payor. Individual treatment costs are generally billed to the impaired physicians. Where significant funds are provided by one group or the other, the provider may seek a certain leverage over the recipient for greater involvement in the operation of or information acquired by the impaired physician program. Where this occurs, it is the state, typically, that is the provider seeking information or control. Various types of treatment plans and their often problematic relation to the boards are illustrated in the following representative samples. The Arizona Board of Medical Examiners, with money raised by an additional $20 per annual license registration, has funded the medical society treatment program, and this has brought some joint participation in proceedings. However, the Board sees the medical society treatment program now as "an arm" of the Board, and feels entitled to see all records previously shielded from the Board, including the records of those impaired physicians who spontaneously volunteered for treatment with the expectation that self-reporting to the society would protect their privacy from the Board.40 Thus, through its licensing power, the state asserted greater control over the impaired physician sector than it previously had succeeded in acquiring through legislation or fiat. Since confidentiality of records of such programs is a matter of great importance to these opposing and committed camps, studies of the incidence of selfreporting and informant-reporting before and after these Arizona changes in program control and privacy would be helpful to planners and legislators. The Washington State Board of Medical Examiners accomplished a 40

Telephone interview with D. Cerf, Director, Arizona Board of Medical Examiners (Apr. 5, 1989).


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similar joint venture with the medical society of the state, but has been willing to forego the feedback of information from the medical society.41 Thus, access to information regarding cooperative physicians is not uniformly considered essential to the regulatory activity of the licensing boards. The medical societies of Maine, Connecticut, and Rhode Island each have negotiated a protocol with the state licensing boards to ensure confidentiality of the society treatment programs.42 Presently, discussion is taking place between the Connecticut State Medical Society and the Department of Health Services concerning the separate processes provided to physicians reported to the licensing authority and those reported to the society. Because in Connecticut the body receiving the report may pursue investigation, the medical society seeks greater investigative control or, in the alternative, disclosure to the society of information developed in cases initiated at the state agency level. The Rhode Island licensing board customarily, rather than statutorily or by agreement, refers addiction cases to the medical society for treatment.43 The plan only regards illnesses as proper for attention, and professional impairment need not have developed. The program discloses to the licensing board the identities of physicians who do not cooperate with or who do not succeed in treatment.44 The California Board of Medical Quality Assurance, in accord with the state's Medical Practice Act,45 diverts willing cases of physician impairment to the medical society, after consultation with the Board's Diversion Evaluation Committee. Individual treatment by approved institutions and rehabilitation programs is arranged by the medical society and treatment records are granted confidentiality. If it is deemed necessary to bar the physician from the practice of medicine, this is arranged through a license suspension. Usually, the impaired physician may continue to practice under supervision by a treatment program "facilitator" while participating in the rehabilitation plan. A member of the Diversion Committee follows the case as a consultant only. However, a progress report is dispatched to this consultant periodically. The Board takes little interest thereafter except in failures, and then confidentiality assurance diminishes significantly.46

41

42

43 44

45 46

The Washington Monitored Treatment Program is incorporated as a non-profit corporation funded primarily by special assessment of state license holders. Protocol, Impaired Physician Program for Licensed M.D.'s in Maine (1987); S. Peck, supra note 39; G E N . LAWS O F R.I. ch. 3 0 1 , § 5-37-5.1 (Michie 1989). Telephone interview with H. Rakatansky, Rhode Island State Medical Society (Oct. 13, 1989). Id. See Rakatansky, Special Report: The Committee on Impaired Physicians of the Rhode Island Medical Society, 68 R.I. M E D . J. 119 (1985). C A L . B U S . & PROF. C O D E § 2332 (West 1989). Gaultieri, Cosentino, & Becker, supra note 37.


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In California, pending charges against a physician who does not cooperate with referral to the program are open to public disclosure. Any action taken by the board of licensure prior to assigned treatment is set aside until the physician either successfully completes the treatment, which could continue for as much as five or more years, or ceases to cooperate with the regimen.47 The physician evaluation and treatment records of the California Diversion Program, despite a nexus with the state through funding via the Board of Medical Quality Assurance and its Diversion Committee involvement, is by policy and statute48 closed to public disclosure, and the statute formalizes the relationship between the medical society treatment program and the Board. This statute is exemplary in its expression of legislative concern for confidentiality. All treatment program records are protected from subpoena even by the board. In fact, when a physician is discharged from the treatment program, the records of the Diversion Committee are destroyed. This program involves a kind of bifurcation of the board, separating the disciplinary function of the board from a rehabilitative one. Even though the board finances the medical society's treatment program, the board does not claim to control the operation. The confidential and generally nonpunitive orientation of the program is described as facilitating selfreferrals and reporting of impaired physicians by colleagues and hospitals.49 The Oregon rehabilitation program is essentially controlled by the State of Oregon Board of Medical Examiners, but it was established by the medical society and is managed cooperatively and confidentially by the society. This board generally places impaired physicians on probation status, but the commitment is to rehabilitation and privacy.50 A diversion program modeled on the California program is presently acceptable to both the Oregon Board and the medical society, "to be under the Board's arm's length control, managed by an advisory body; the Board would not be informed of the identities of volunteer physician-patients, although it appears that ultimately the board will have to know who is impaired."" The Massachusetts legislature, like all others, long ago made drug or alcohol dependency or habitual intoxication a professional misconduct violation of the conditions for being a licensee in good standing and therefore subject to discipline by the Board of Registration in Medicine. Yet, the 47 48 49 50

51

Id. C A L . B U S . & PROF. C O D E § 2332 (West 1989). Gaultieri, Cosentino, & Becker, supra note 37. Shore, The Oregon Experience with Impaired Physicians

on Probation:

An Eight Year

Follow-up,

257 J.A.M.A. 2931 (1987). Telephone interview with J. Ulwelling, Executive Secretary, Oregon State Board of Medical Examiners (Mar. 15, 1989).


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board also considers chemical dependency treatable while falling short of calling it an illness or disorder.52 Thus, the Massachusetts board urges physicians dependent on chemicals to seek treatment before they are reported to the board, but tries to ensure rehabilitation in a medical society treatment plan. While the Massachusetts board, like most boards, considers any formal action public, it also includes as publishable an assurance of discontinuance from a physician who does not admit wrongdoing or chemical dependency, but whose board folder contains convincing evidence thereof. The state's medical profession objects to this publication because, it asserts, there is no guilt admitted or found, and no penalty levied. The assurance of discontinuance contains the allegations in summary and the agreement that the physician will not violate medical practice laws. This is also reported to other states if the physician moves from Massachusetts. But a letter of agreement signed by a physician admitting chemical dependency and agreeing to enter an approved treatment program is not publicly disclosed. Such letter does not require action of the full board, and is not a disciplinary action or sanction formally voted by the board, and therefore would not be reported to the national data reporting system. It would, however, be confidentially disclosed to the physician's employer, the hospitals served, and the individual licensing boards in states where the physician holds a license. A physician's drug dependency is not reported by the Massachusetts board to law enforcement authorities unless it appears probable that the physician will endanger the public; the board does report criminal offenses otherwise.53 The Massachusetts Board of Registration in Medicine introduces an interesting approach to its monitoring of physicians in treatment: outside psychiatrists are designated by the board to review the privileged and confidential psychiatric records "in confidence, at the physician's option and expense," to provide the board with "specific information . . . and to report" only this and "relevant opinions" derived from the review of the records. Although the board is cognizant of the presence of "sensitive personal information" in "psychiatric counselling [sic] records, . . . the Board cannot disregard the importance of such information in its effort to monitor successful recovery."54 In contrast, Florida has a program known as the Physicians Recovery Network (the Network), managed by the medical society and funded partly by the Department of Professional Regulation. The Network does not provide treatment but, together with a committee appointed by the state's 52 53 54

M A S S . G E N . LAWS A N N . ch. 112, § 5(d)-(e) (West Supp. 1989). See PHYSICIAN POLICY, supra note 4 . PHYSICIAN POLICY, supra note 4 , at 20. Id. at 2 1 .


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Department of Professional Regulation, approves certain treatment providers. No information is conveyed to the Department unless the physician refuses to cooperate; no regulatory action occurs at all so long as the physician progresses satisfactorily in a board approved treatment program. Even the identity of a particular practitioner's treatment provider is not disclosed to the Department. Moreover, when the licensee is ordered by the Department to have a physical or mental examination by court order, the licensee may not be named or identified by initials in any public court records or documents, and the court proceedings are closed to the public. The Department further has agreed that if the physician reported first to the Network and is later found by the Network on confidential evaluation to be vulnerable to possible charges of violation of the Medical Practice Act,55 the physician is informed, and has a right to a second opinion before a disclosure is made to the Department.56 The New Jersey legislature has been considering recommendations for the development of a new Medical Practitioners Review Panel that would bridge the medical society and the licensing board for the handling of misconduct and impairment complaints against physicians, podiatrists, and chiropractors.57 This arrangement would remove significant power from the licensing board and also from the medical society impairment program while the legislature and board presumably could influence the more coercive protocol to be introduced. This proposed review panel would investigate and make recommendations that could include disciplinary action by the board or rehabilitation in an approved program. The panel also would be charged with monitoring and reporting to a central data collecting system any changes in staff privileges at hospitals and other health care entities including voluntary leaves of absence, malpractice awards, and settlements. Implicit in the schema of these diverse and necessarily coercive arrangements and conditions regarding treatment, discipline, and privacy is the inherent polarization between the positions of the licensure boards and medical societies. The protocols and agreements defining distinct territories and the few points of interaction between these two authorities are inventive means for working through their opposition in the protection of the public good and the practicing physicians. Each jurisdiction seems to have some need for continuing dialogue and creative compromise in this area. Each evolves a treatment program and disciplinary process that must balance the physician's rights and the 55 56

57

F L A . STAT. § 458.331(l)(s) (1989). Members of licensing boards share concern with peer reviewers about their own possible vulnerability to civil or criminal suit arising out of disciplinary activities; they seek statutory immunity. See GUIDE, supra note 1, at § XIII. Making it Harder for Bad Apples to Practice, Med. Economics, Mar. 20, 1989, at 249.


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public's needs. Generally, approved treatment programs are exempt from the general reporting requirement of hospitals and physicians to notify the board of an impaired physician, as long as the impaired physician is cooperating. The variety of the arrangements suggests that even others are conceivable. None exist that are entirely enthusiastically received by the parties involved or by observers in other jurisdictions. While part of the difficulty is the tension between the licensing boards and medical societies, part of the problem lies in the diversity of continually changing impaired physician statutes and the degree of confidentiality for the disciplinary process as provided by these and other statutes. The following section explores the latter area. H. CONFIDENTIALITY VERSUS DISCLOSURE OR DISCOVERABILITY OF GOVERNMENTAL AGENCY PHYSICIAN IMPAIRMENT PROCEEDINGS Virtually all the states and territories have adopted statutes that govern identification and discipline of the impaired practitioner. The more recent statutes tend to some similarity as experience in the area evolves. However, second to the disciplinary and treatment aspect discussed above, they present significant differences from one jurisdiction to another, particularly in respect to the confidentiality and immunity afforded the reporter and the reported physician's case records. Anonymity and shielding provisions for the reporter of physician impairment are essential to encourage reporting. A. Overview of the Problem Agencies generally have an interest in publishing or releasing data concerning their actions. Such publication is useful to the public and consistent with the policy objectives of freedom of information legislation. It also implies or indicates that work is being done by the agency in the public interest. Certainly, the public wants to know that "bad guys" are being caught and punished in accordance with the law. The regulatory and licensing bodies endorse the deterrent effects of making public examples of board disciplinary actions. A government agency that licenses health professionals has an interest in publishing disciplinary proceedings such as hearings against a physician whose professional work is held to have been harmful to the public. The medical profession, on the other hand, wants confidentiality of the entire records of investigatory findings and hearings to protect already injured egos and damaged reputations as well as the livelihoods of the


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involved physicians who hope eventually to return to practice. There also is concern for the hurting families of these disabled physicians, as well as the need to protect the privileged and confidential communications between the impaired physician and the treating physician or psychotherapist. And, of course, there is the need to encourage impaired physicians to come forward voluntarily for treatment without fear of public humiliation. Guarantee of confidentiality has been the quintessential factor that has fostered the reporting of an impaired professional by an observing colleague, the willing testimony of witnesses at disciplinary hearings, and the early cooperation of the reasonable impaired physician. Therefore, all parties concerned, including the public, have a vested interest in maintaining privacy and confidentiality, because the principal objective is the earliest possible removal of impaired physicians from their position of harmfulness to the public. The other side of this coin is society's aim to return these disabled caretakers to health and to positions of responsibility for the public's gain. State medical society programs have developed various policies and approaches regarding selection and disclosure of information about particular impaired physicians that statutorily must be reported to the licensure boards. The stage of intervention by the society at which the reports shall be made to the licensing authority also is of critical concern. The recent trend generally has been away from requiring a medical society to disclose the names of cooperating impaired physicians to the licensing board or regulatory agency unless the original complaint was made to the board or agency and the case was opened there.58 In Arizona, the impaired physician is pressed by the Board of Medical Examiners to sign a consent agreement and must appear at a hearing before that body, generally following a 28-day hospitalization for evaluation and initial medical and psychiatric treatment of the disease or disorder underlying the impairment.59 While this Arizona hearing is "held behind closed doors," the press is permitted to sit in, with the "understanding" that it will not publish any content of the hearing as long as the impaired physician is cooperating with the licensing authority.60 The Arizona press does not publish without the agency "nod" for fear of risking loss of the attendance privilege.61 Presence of the press at disciplinary hearings also serves to place "additional pressure" on the physician, and resistance to the board of examiners or medical society rehabilitation program could likely provide to 58 59 60 61

See Protocol, supra note 39. D . Cerf, supra note 4 0 . Id. Id.


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the press a ground for the public's need to know of the conflict and issues.62 The New Jersey Board of Medical Examiners and the Florida Board of Professional Regulation publish in their periodic newsletters the names of physicians who receive license restrictions or other penalties, although Florida's impaired physician proceedings are statutorily closed even when necessary enforcement action is brought.63 The trend across the states has been to emphasize full confidentiality of the licensing authorities' records of impaired physician investigations, whether or not sufficient evidence of impairment is found to support a consent order or hearing process. The predominant trend toward confidentiality also extends to proceedings against those physicians who sign a consent agreement to the suspension of the professional license and to cooperation with a stipulated rehabilitation program. Rhode Island law specifies that the licensing board is granted exclusive authority to hold investigations and hearings and that they "shall remain confidential."64 California, Connecticut, Maryland, and New York, for example, also are committed to such confidentiality in order to encourage the cooperation of the medical communities generally as well as impaired physicians individually. The South Carolina Board of Medical Examiners justifies its closure of hearings and the records behind them on the basis of its interpretation of the federal and state confidentiality and public information laws, and by applying the same privilege upon which the state's supreme court relies for its deliberations during in camera closed hearings.65 Hearings are fully closed, by regulations, in about 35% of the states. Reflecting the opposite stance, the Massachusetts statute specifies that once an investigation into a physician's possible impairment is completed and results in an "order to show cause," dismissal, or "other final action," the records shall not be kept confidential.66 The complainant, as well as the investigated physician, other state or federal agencies, boards or institutions may have access to the records of the investigatory and disciplinary proceedings,67 which could be construed to include otherwise nondiscoverable peer review committee information submitted for investigation purposes. This jeopardizes the special statutory immunity granted to medical peer review records under Massachusetts law.68 62 63 64 65

66 67 68

Id. F L A . STAT. A N N . § 490.009(2) (West 1989). R.I. G E N . LAWS § 5-37-5.2 (Michie 1988). Telephone interviews with S. Seeling, Counsel, South Carolina Board of Medical Examiners (Mar. 8, July 11, 1989); S.C. C O D E REGS. 81-20, 81-26, 81-27 (1988). M A S S . G E N . LAWS A N N . ch. 112, § 5 (West Supp. 1989). Id. Id. ch. I l l , §§ 2 0 3 , 204.


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Nevertheless, this same section of the statute also provides for a penalty of $500 if any employee of the board breaches confidentiality.69 Despite this provision, members of the Massachusetts Medical Society are convinced that the Board of Registration, or one of its members, has repeatedly "leaked" confidential material to the local press, and tensions run high between the society and the board.70 A civil rights action against the Massachusetts Board of Registration in Medicine was filed by a physician who alleges that his license was revoked as part of a quota effort called by the board. The Massachusetts Medical Society is reported as attributing a "star chamber quality [to] board proceedings."71 As a result of this heated conflict over confidentiality, the Massachusetts Medical Society, in 1989, succeeded in asserting the applicability of federal confidentiality legislation.72 Inasmuch as the society is indirectly funded through its tax exempt status and the tax deductibility of members' dues, its rehabilitation program could rely upon the protection of the identity of those enrolled in federally funded alcohol and substance abuse treatment programs.73 This outcome undoubtedly will affect similar contests in other states where the medical society (and/or a similarly funded or federally assisted group) is the sole provider of the treatment program. It is the orientation of the state licensing and disciplinary bodies generally, of hostile media interests, and of some courts and legislatures toward public disclosure that the medical societies condemn and confront. Their objection is premised on the concept that administrative disclosure of information acquired in the course of impaired physician investigations or of the records of disciplinary proceedings is an avoidable obstacle to detection and treatment of other impaired physicians and also damages name, livelihood, and family. The idea of shameful and ruinous public exposure based upon an illness or mental disorder is generally repugnant. It conjures up images of public vilification of hunchbacks and "village idiots," and of the stocks in the village green. However, administrative agencies find that much of their activities can be conducted informally or amidst investigational pursuits that, in many jurisdictions, are not disclosable to the public. Widespread legislative silence on the matter of confidentiality has permitted agencies to develop unique policies and procedures safeguarding the status of confi69 70

71 72 73

Id. McGinn, M.D.'s Suit Revives Debate on State Board's Tactics, A m . Med. News, May 12, 1989, at 1, 53-55; Connecticut Medical Society Physician Health Committee Meeting, Apr. 2 7 , 1989. McGinn, supra note 70, at 5 5 . As implemented by 42 C.F.R. § 2 (1988). Personal communication with B . Levy, Chairman, Physician Health Committee, Massachusetts Medical Society (Apr. 2 7 , 1989).


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dentiality at various stages of their work. There is a trend, generally, toward cooperation with the medical profession for confidentiality, on the premise that empathic, responsible joint efforts in culling out unfit physicians will be most successful. As the history of the matter has evolved, however, a blanket of confidentiality seems impossible. Arizona's Board of Medical Examiners74 as well as the Director of that state's Impaired Physician Program75 do not quite concur with the majority on this issue, agreeing that the impaired physician process, confidential or not, is simply "not newsworthy." This assertion, however, is difficult to reconcile with the fact that a reporter is present during board proceedings against physicians and will publish that which does appear newsworthy. When, in 1972, an Arizona physician reported another in reliance on a teenager's complaint that he had molested her, and the newspapers released the story, the reported physician committed suicide, after which the girl recanted her lie.76 Because the Arizona Medical Association had relatively weak political leverage, it had been unsuccessful in establishing a protocol for an independent impaired physician program that could accord greater regard for confidentiality of the board's impaired physician records. However, in 1988, Arizona's Board of Medical Examiners and the state medical association did agree that the association would manage a rehabilitation program for impaired physicians that would be at least partly funded by the board. Treatment records would be confidential even as to the board, although the names of the physicians treated and of those screened out as unimpaired would be filed with the board.77 This gives the medical association wider scope at least in the clinical management of impaired physician cases, but maintains an avenue for dominance and control by the licensure board. But the decision of the media rather than the board or medical association determines whether any formal action is broadcast, and "the media has still been opting not to publish."78 As long as confidentiality cannot be assured, the medical profession will continue to view the entire policy of the licensing agency toward physician impairment as punitive and humiliating rather than rehabilitative, and treatable physicians therefore will avoid contact with the treatment program. Impaired physicians refrain from seeking help voluntarily, in part, out of embarrassment even in the privacy of the office of a helping

74 75

77 78

D . Cerf, supra note 40. Telephone interview with D . Damstra, Director, Arizona Impaired Physician Program (Mar. 1988). Coleman, The Impaired Physician: An Old Problem Creates the Need for New Legislation, 26 ST. LOUIS U.L.J. 727, 735 (1982). D . Damstra, supra note 7 5 . Id.


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colleague.79 Fear of charges by the board, discipline, and public disclosure is a nightmare that drives a worried, addicted physician even deeper underground.80 And others in a position to report a possibly impaired physician for investigative determination of impairment and treatment likely will avoid doing so because it is repugnant to them to "snitch" and to feel responsible for the public degradation of someone they might admire. The promise to a physician of case confidentiality facilitates cooperation and thus serves the interest or economy of agency resources. Elaborate investigation and process against the respondent becomes unnecessary, and the physician can be expected to voluntarily sign the proffered consent order, agreeing to enter a therapy program, practice under professional supervision, and to submit, when appropriate, to a regimen of random urine testing for a stipulated minimum period of years. Nevertheless, the general policy of the boards is to give impaired physicians "their bit of confidentiality," but to get them out of practice and into treatment.81 Confidentiality is criticized by consumer groups interested in identification of any presently or previously impaired physicians.82 Implementation of HCQIA and its mandate for "[e]ach Board of Medical Examiners" to report physician impairment to HHS and/or to the national data bank to be established may well exert an influence to change this posture.83 Clearly, Congress considered a resistant stance by some state medical boards in specifying that, if a state board of medical examiners does not comply with the reporting requirement, "the Secretary shall designate another qualified entity for the reporting under subsection [423](b)."84 When this federal law is fully implemented, state agencies that have this inclination toward nondisclosure likely will come into compliance unless an exception is found that will permit its survival. The emphasis on confidentiality, where offered, for the protection of complying impaired physicians ensures their continued trust in the licens79

80

81

82

83 84

See Vincent, A Well Doctor's Family: The Struggle for Intimacy, in PHYSICIAN HEALTH & EFFECTIVENESS: N E W DIRECTIONS 15 (J. Robertson & V. Vivian eds. 1985). See also Carden, Reed, Talbott, & Smith, Involving Recovering Physicians in State Medical Society Programs, in N E W DIRECTIONS, supra, at 85. Telephone interview with D . Canavan, Director, New Jersey Medical Society Impaired Physician Program (Mar. 1989). See also Carden, et al., supra note 79, at 86. F. Adams, Commissioner, Connecticut Dep't of Health Services, keynote address, Prospective View of Department Concerns, semiannual meeting, Connecticut Health Lawyers Society (Sept. 2 1 , 1987). Inlander, The Bad Doctors—Who Are They?, N.Y. Times, July 2 9 , 1989, at A25 (the president of the People's Medical Society argues that consumers should have access to the National Practitioner Data Bank and any agency information that would foster a consumer's careful selection of a physician). See 42 U . S . C . § 11133(b) (Supp. V 1987). Id. § 11133(c)(2).


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ing board and medical society as well as compliance with their consent agreements and treatment programs. It encourages a small but certain number of potential treatment candidates to volunteer for rehabilitation before any further impairment and before coercion is brought to bear. The licensing boards generally prefer to be at the center of impaired physician programs. The critical determining factors include the relative power of the board versus the medical society over individual physicians and in the halls of the legislature, as well as the degree of confidentiality to be afforded in the context of handling impaired physician matters. But even when a Board would grant full confidentiality, the question arises whether there should be public disclosure of the impaired physician who, in resistance, quits a program of treatment. Unfortunately, in this circumstance, boards perceive a duty to inform the public, because "at the moment of quitting that physician poses a threat and should be identified to the public."85 Treatment program spokespeople in Connecticut argue that resistance and relapse are integral manifestations of most impairment causing diseases, such as addictive disorders.86 However, when an impaired physician quits treatment prematurely and resumes practice, obviously this presents a potential risk to patients. Should disclosure of information be permitted or required under these circumstances? Is a case by case standard feasible? This, then, is the nub of the conflict between adversarial boards, impaired or possibly impaired physicians, and their advocate medical societies. A licensing board's disciplinary process can have a shattering effect upon impaired physicians, the great majority of whom are ordinarily responsive to treatment and able to return to productive professional lives.87 Moreover, the lack of complete confidentiality that attends this process is a serious problem. The argument is thus very strong for diversion of investigational and disclosure duties from the boards to other parties altogether. Societies of physicians know how to safeguard confidential communications and are not subject to the burden of public disclosure imposed upon administrative agencies. Moreover, they are capable of coercing reluctant and recalcitrant physicians into confidential treatment under medical society auspices. Such coercive but nonpunitive programs attract self-referrals of impaired physicians, thus achieving the most important objective. The dread with which the medical profession looks at public disclosure of board material arises from mutual protectiveness, distrust, and

86

87

Telephone interview with D. Breaden, Assoc. Exec. Vice Pres., Federation of State Medical Boards (Mar. 1989). Personal communication with E. Hecklau, Chairperson, Physician Health Committee, Connecticut State Medical Society (Oct. 12, 1989). Whitfield, Five and One Half Year Followup of 139 Alcoholic and Chemically Dependent Professionals, in NEW DIRECTIONS, supra note 7 9 , at 150 (85% were called treatment successes).


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uncertainty regarding the limits to disclosability. The medical profession is not adequately informed concerning the stages of the licensing boards' process and those to which confidentiality attaches. Given the spectrum of statutes and policies found across the states, and given that most professional literature is nationally oriented, practicing physicians have little specific information as to discoverability of licensing board records within their own states. Cases and decisions headlined in national physicians' newspapers are incorrectly perceived to be controlling in all jurisdictions. Tension between the boards and the medical profession limit the rapport needed for reciprocal educational activities. And because the boards deal with individual respondent physicians and a small committee within the medical societies, mainstream practitioners are not provided sufficient, specific information for them to develop, reflectively, their own conclusions. B. State Issues and Court Decisions Involving Confidentiality Beyond the subject of openness of licensing board proceedings generally, there are issues that concern the disclosability of the records and determinations of physicians cleared of allegations or charges. Generally, the cleared practitioners prefer nonpublication and anonymity without resultant harm to reputation. Furthermore, there are questions regarding confidentiality of information provided by a licensure applicant concerning a history of prior impairment cured by therapy. Is this information a publicly disclosable or discoverable admission? Is publication an unreasonable privacy invasion? Might it be separated from an otherwise open application? In a different vein are questions regarding confidentiality of the private treatment of a physician whose impairment or professional incompetence becomes apparent to the treating physician. This is particularly significant where the impairment has not been previously reported. How is the duty to the physician/patient balanced against a statutory reporting duty imposed on physicians aware of actual or likely impairment? Is there a duty to warn third parties? Here, too, we find that evolving law in various jurisdictions differs or conflicts. These issues and the applicable law are discussed in this section. 1. Public Disclosure of Physicians Cleared of Impairment Charges Where discipline or other action is unwarranted for lack of grounds, Maryland's Commission on Medical Discipline is required to keep confidential any information not specifically and statutorily disclosable after


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exonerating the physician and to "expunge all records of the charges."88 Maryland law furthermore restricts publication of the summary of the allegations by barring identification of the physician about whom the allegations are made as well as of the persons making the allegations and any witnesses in the investigation or proceeding.89 Connecticut similarly requires that, upon finding "no probable cause, the petition [of complaint or allegation] and the entire record of such investigation shall remain confidential . . . Z'90 While the Arizona and Connecticut licensing boards appear to hold the press at bay with an embrace, and tell editors that the disciplinary events they are permitted to attend will generate nothing newsworthy, other states' agencies, such as Florida, Texas, and Illinois (with some statutory requirement) zealously guard confidentiality of records and may even close their hearings on physician impairment (mainly by avoidance of formality). In some states (West Virginia and Florida, for example) the outcome of disciplinary proceedings are viewed as particularly important for public announcement. In fact, no one need be disciplined. When a physician is cleared of wrongdoing, it is considered newsworthy enough. Thus, in California, Nevada, and West Virginia, charges against physicians in cases pending before the state licensing boards are matters of publishable public record.91 When the Charleston (West Virginia) Daily Gazette published on its front page the names of seven physicians cleared of wrongdoing (along with seven who were not) the medical profession was enraged.92 The limited impaired physician program in that state, not as strongly established as in other states, was viewed as sustaining a significant setback.93 Harm may accrue to the reputations of the involved professionals because readers in the community may think that "where there is smoke, there's fire."94 Prior efforts in West Virginia to create statutory confidentiality for board proceedings, except where the physician was found impaired or guilty of misconduct and suffered loss of license privileges, as provided in many other states, were ruled unconstitutional by the West Virginia Supreme Court in 1986.95 The Court, in Daily Gazette Inc. v. West Virginia 88 89 90 91

92 93

94 95

M D . C O D E A N N . §§ 14-510.l(b), 14-506(b) (1988). Id. § 14-510.1(i). C O N N . G E N . STAT. § 20-13e (1989). Am. Med. News, Sept. 2 5 , 1987, at 2 & 4 6 . Telephone interview with D. Rodecker, Counsel, West Virginia Board of Medical Examiners (Apr. 1989). Am. Med. News, supra note 9 1 . Telephone interviews with M . Scholten, Exec. Director, West Virginia Medical Ass'n (Mar. & Nov. 1988). Id. Daily Gazette Inc. v. West Virginia Bd. of Medicine, 352 S.E.2d 66 (W. Va. 1986).


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Board of Medicine, affirmed the circuit court's holding that the statutory confidentiality of the proceedings of the West Virginia Board of Medicine, and "all reports, records, and nondeliberative materials introduced at such hearing" where no probable cause is found "to substantiate charges of disciplinary disqualification," is unconstitutional under the public's right of access to the courts."96 The West Virginia Supreme Court balanced the professional need for privacy against the public's need for information associated with access to courts, and determined that the latter outweighs the former where disciplinary board hearings are concerned. The disciplinary board was seen by the court as being an extension of the state judicial system,97 as it observed that "the West Virginia constitutional right to access is not limited to formal judicial proceedings . . . for it 'extends to other types of judicial and quasijudicial proceedings.' " 98 In West Virginia, primarily because there is no active medical society impaired physician program, those physicians considered impaired are reported by hospitals and colleagues to the board of examiners more likely than to the society. The disciplinary board thus has a much greater direct involvement in most cases than in many states. This board, like most others, considers investigative information private and confidential, and tries not to bring it into the open proceedings. But a consent order signed by the physician is public, even though most other states treat such orders as confidential so long as the physician continues to cooperate with rehabilitation, random urine test requirements, and supervision. Absent a court determination to the contrary, it is widely accepted by the licensing boards that any material introduced in a hearing is disclosable under the freedom of information law. Whether the respondent physician is held incompetent to practice or not, the name and determination are thus public. Those seeking at least some privacy may plead for nonpublication of the case, but the unpublished record and decision remain disclosable nevertheless. A newspaper's policy in publishing such information is an editorial one, and management may be approached by parties seeking a change. 2. Other Conflicts Concerning Confidentiality of Case Records In balancing the medical profession's need for privacy in policing itself to protect the public against the public's need for information necessary to protect itself, there is another perspective. For example, in Maryland, the State Board of Dental Examiners is considered by statute to be a 96 97 98

Id. at 70. Id. at 69. Id. (citing W. VA. CONST, art. III, § 17).


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"[peer] review committee" whose records are not available to the public, nor are these records discoverable or admissible for civil proceedings "except by the express stipulation and consent of all parties to a proceeding . . . " " Thus, the investigative material and records created by the medical and dental boards (which are predominantly composed of professional peers) or an investigative body in the preparation of a case against an impaired or incompetent physician or dentist are granted statutorily confidential status. As asserted by the custodian of records of the Maryland State Board of Dental Examiners in Oliver v. One Unknown Manufacturer of Metal Ligatures,1C0 public disclosure acts "focus upon the need for information rather than a broad statutory grant of disclosure"101 and exceptions from public access to administrative agency records are qualified rather than absolute immunity grants. The court upheld the right of the board to maintain the privacy of its records where the individual seeking it has no cause of action nor other recognized legal right to obtain discovery. The Maryland Public Information Act102 permits case by case determination of disclosure requirements, especially with respect to the qualified immunity granted the board by other state statutes.103 The Act also shields "the part of a public record that contains information about the licensing of an individual in an occupation or profession."104 Therefore, the Maryland State Board of Dental Examiners in Oliver asserted that one must present a "threshold showing of particularized need" to overcome a qualified privilege and obtain records of the licensing body, and should not take access thereto as a "matter of right."105 When a state's laws are in conflict or are unclear regarding immunity of records from discovery, the Maryland State Board of Dental Examiners observed, a balancing test between the private party's "need for the information and the agency's claims of privilege"106 is indicated. This ensures that protection for confidentiality attaches to the source of the record—the review committee—and not merely to the documents that may be subject to discovery when otherwise admissible and properly subpoenaed.107 Generally, in the course of disciplinary proceedings, compliance 99

100

101 102

M D . HEALTH O C C . C O D E A N N . §§ 4-501(d), (e), 14-601(d), (e) (1988) (the Dental and Medical Practice Acts, respectively). N o . 8 7 0 , M d . Ct. Spec. A p p . , Brief for Appellee (A.G.) (1987) (peer review and confidentiality argument): Telephone interview with H . Matz, Asst. A . G . , State of Maryland (Apr. 10, 1989). Brief, supra note 100, at 2 2 ; Baldridge v. Shapiro, 4 5 5 U . S . 3 4 5 , 359 (1982). M D . STATE G O V T C O D E A N N . § 10-601 (1988).

103

M D . HEALTH C O D E A N N . § 14-510 (1988).

104

M D . STATE G O V T C O D E A N N . § 10-617(h) (1988).

105

See Brief, supra note 100, at 2 4 . Id. at 2 1 . Id. at 19.

106 107


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hearings are held. These hearings provide the physician an opportunity to demonstrate that the agency's investigative findings and allegations are baseless and/or to arrive at an agreement that the physician will comply with the licensing board's requirements, without necessarily admitting impairment or misconduct. Compliance hearings generally are not considered to be public hearings.108 Rather, these hearings form part of the investigative process. In Commissioner of Consumer Protection v. Freedom of Information Commission,109 the Connecticut Supreme Court held that a news reporter could not prevail in his effort, aided by the support of the Connecticut Commissioner of Freedom of Information, to obtain documents generated for use in certain compliance hearings concerning alleged drug violations by certain arrested physicians. Unlike the Maryland statute that expressly protects identities of physicians in licensing inquiries from public disclosure,110 Connecticut legislation permits the Department of Consumer Protection to disclose compliance meetings and publicly identify individuals and institutions in a "proceeding involving the question of licensure or right to practice."" 1 But a state regulation"2 requires that, prior to a licensure revocation proceeding, the licensee must be given opportunity to show compliance with lawful requirements. The documents thus were held immune from public disclosure because they were generated in the context of compliance meetings that were preliminary to an agency proceeding rather than during the actual or formal proceeding." 3 Immunity from public disclosure insofar as freedom of information law permits, is not synonymous with nondiscoverability.114 While state public information laws address the public's right to know about agency conduct, the United States Supreme Court noted, in Baldridge v. Shapiro, that discovery provisions "focus upon the need for information rather than a broad statutory grant of disclosure."" 5 Thus, "a litigant seeking discovery must make a threshold showing of particularized need for access" to licensing records that are granted at least a qualified privilege." 6 108

See C O N N . G E N . STAT. § 21a-306 (1989).

109

207 Conn. 6 9 8 , 542 A . 2 d 321 (1988). M D . HEALTH O C C . C O D E A N N . §§ 4-501(d), (e), & 14-601(d), (e) (1988).

110 111

C O N N . G E N . STAT. § 21a-306 (1989).

112

C O N N . AGENCIES R E G S . § 2 1 a - l - 2 0 a (1988).

113

Commissioner, 542 A . 2 d at 3 2 5 . Brief, supra note 100, at 2 2 . Baldridge v. Shapiro, 4 5 5 U . S . 3 4 5 , 359 (1982). Brief, supra note 100, at 2 3 .

114 115 116

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What effect is there on the statutorily assured anonymity of the good faith reporter of the (possibly) impaired physician if records must be disclosed? While most state medical practice acts provide shields for good faith reporters, at least one state's law, Massachusetts', expressly does not keep confidential


investigative records or information of the board after the board has disposed of the matter under investigation by issuing an order to show cause, by dismissing a complaint or by taking other final action nor shall the requirement that investigative records or information be kept confidential at any time apply to . . . the person under investigation, the complaint, or other state or federal agencies, boards or institutions as the board shall determine by regulation.117

It is an inconsistent legislature that would pass a tort reform act to effect limits in medical malpractice litigation yet retain this anticonfidentiality statute that permits disclosure of board investigative findings to complainants. However, Massachusetts has done just this. It is understandable that medical societies typically destroy their reporters' identities once an investigation is completed, and are generally successful in not passing their identities to the licensing boards. Texas law generally bars discovery by plaintiffs of medical licensing board files containing complaints, adverse reports, investigatory files, and information relevant to the physician licensee or the application for the license. This information is statutorily privileged and confidential and not subject to discovery, subpoena, or publication. However, facts or determinations may be reported to an agency conducting a criminal investigation, although the information must still be kept confidential.118 While jurisdictions obviously differ on the issue of public access to all the records of the medical licensing boards as opposed to selective immunity for their records pertaining to impaired physicians, legislation and case law continue to build exemptions that cut deeply into confidentiality and the patient physician privilege."9 Connecticut and many other states have enacted statutory provisions regarding the confidentiality of board proceedings that, in the wake of the West Virginia Daily Gazette decision, could be jeopardized.120 Clearly, interested parties and legislators in other jurisdictions should be anticipating challenges similar to those asserted in

117 118 119

120

M A S S . G E N . LAWS. A N N . ch. 112, § 5 (West Supp. 1989). T E X . REV. CIV. STAT. A N N . § 4.05(d) (Vemon Supp. 1989). Daily Gazette, 352 S.E.2d 6 6 (1986) (invalidating W. VA. C O D E §§ 30-3-6 & 30-3-9(g-j) (1980), and exceptions to confidentiality in W. VA. C O D E § 30-3-14(o) (1986)). See, e.g., C O N N . G E N . STAT. § 23-13a (1989).


158

WALZER

Daily Gazette.m In South Carolina, for instance, all hearings "may be closed" to the public, unless the respondent physician requests a public forum.122 In consideration for the funding of the treatment program by the licensing board, the Arizona medical society shares the identity of all reported and volunteer (self-referred) cases with the licensing board, which urges these physicians to cooperate or risk loss of license.123 The medical society thus loses full autonomy. Since the two bodies share information, it is immaterial whether a physician's impairment or incompetence is first reported to the one or the other.124 The Washington Board of Medical Examiners has a similar funding arrangement, but it did not extract from the medical society the requirement to share data. The state of Washington also values openness, but with a policy of greater confidentiality for licensing board and peer review records than West Virginia. Connecticut, however, chose confidentiality and nondisclosure of both licensing board and medical society records regarding impaired physicians. Connecticut medical societies and the State Department of Health Services, through its Division of Medical Quality Assurance, still follow a 1987 accord. These bodies established a protocol that restored a significant degree of control over the impaired physician program to the medical societies. Confidentiality of reports of specific physician impairment as well as physician rehabilitation and random urine testing also is assured.125 Impaired physicians in Connecticut who are initially engaged in rehabilitation by the medical society without licensing board or Department of Health Services involvement may, under the protocol agreement, remain unidentified. However, these agencies prefer to obtain this information. In situations where physicians fail to participate in therapy for impairment, or when physicians are not considered to be impaired but are otherwise involved in matters or allegations of incompetence or miscon-

The West Virginia Medical Association decided not t o appeal Daily Gazette because of the costliness of t h e effort. Instead, in 1989, the society unsuccessfully sought legislation that would have diverted the cases and records of impaired physicians from the board t o the medical society, where the physician could agree to enter approved treatment. This would have removed the records from the scope of the state's Freedom of Information Act (W. V A . C O D E §§ 29B-1-1, 29B-1-2, 29B-1-4 (1988)), restoring reasonable privacy protections for physicians most in need of it. See A m . M e d . N e w s , supra note 9 1 , at 4 6 . 122 S . C . C O D E A N N . § 30-4-70 (Law. Co-op. Supp. 1988). 123 This process is usually called "intervention," and most state medical societies have volunteer physician " i n t e r v e n o r s " trained t o b e firm b u t empathetic. Licensing boards, of course, operate in a more authoritarian manner. 124 D . Cerf, supra note 18. 125 Protocol, supra note 3 9 .


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duct, enhanced confidentiality protections are not afforded by the Department.126 Confidentiality of dental society peer review records was dealt a serious blow by the Connecticut Appellate Court in Commissioner of Health Services v. Kadish,127 raising concern within the state's medical profession. Noting that medical and dental peer review records are not subject to subpoena in civil actions,128 the Kadish court overturned the trial court's ruling and refused to conclude that an investigation by the Commissioner of Health Services is a civil action within the meaning of the applicable statute. The court therefore held that civil immunity does not prevent disclosure to an administrative agency involved in an investigative proceeding. A court proceeding brought by the Commissioner, notes Kadish, is not fully an administrative one, and administrative appeals to the superior court generally may be viewed as civil actions for purposes of rules of practice.129 If the investigative proceedings lead to a finding of impairment that is contested by the respondent physician, it is possible that the peer review material could be open to public disclosure.130 Furthermore, the Kadish court's reasoning could imply that persons reporting physician impairment and witnesses testifying in peer review proceedings, especially where staff privileges of an allegedly impaired physician are at issue, could be subpoenaed to testify in a subsequent administrative hearing. Discussion at a Connecticut Medical Society meeting indicated that Kadish has had the chilling effect predicted by the dissent: society membership is now more reluctant to participate in peer review.131 Two avenues appear available for the medical society in Connecticut to seek a remedy—a legislative one that would limit or prohibit access by agencies to peer review data, and a negotiated one, in which agreement might be reached with the agency that would at least minimize the likelihood of subpoena. On a case by case basis, a plea can be made to the court to strike from the record any information considered irrelevant to the case at bar or too private for public disclosure. Clearly, the time has come, in Connecticut certainly, for carefully written review records that contain minimal supporting and no irrelevant material. 126 127

Id. 17 Conn. A p p . 5 7 7 , 5 5 4 A . 2 d 1097 (1989).

128

C O N N . G E N . STAT. § 38-19a(d) (1989).

129

Kadish, 5 5 4 A . 2 d at 1099.

130

C O N N . G E N . STAT. § 20-13e (1989).

131

Kadish, 554 A . 2 d at 1099 (dissent argued that legislative history a n d court decisions in other jurisdictions support liberal application of peer review immunity in order t o encourage the activity). See also Morse v. Gerity, 5 2 0 F. Supp. 4 7 0 , 4 7 2 ( D . Conn. 1981); Doctors Hosp. v. West, 7 6 5 S.W.2d 812 (Tex. A p p . 1988).


160

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Medical societies and at least the licensing boards in western states have not forgotten the shocking and tragic suicides of physicians that occurred during board disciplinary proceedings in Oregon in the 1970s.132 Those eight deaths and three other suicide attempts were attributed primarily to public disclosure of the charges and proceedings against the physicians. This episode still offers a legitimate rationale for strict confidentiality of these matters as well as for rehabilitative rather than disciplinary approaches to the impaired physician programs. As a result, confidentiality is statutorily assured in Oregon.133 Any information regarding physician impairment or incompetence provided to the Oregon Board of Medical Examiners is confidential and not subject to public disclosure, discoverability, or admissibility as evidence in any civil proceeding. The same statute also grants immunity from civil action for a person who in good faith reports information about an impaired physician. However, provision is made for the board to disclose information regarding the suspension or revocation of a physician's license to certain health care facilities.134 The press is permitted to attend open hearings, but generally prints only the decision, which is a matter of public record. Similarly, Illinois law zealously aims to guard confidentiality at all levels.135 So long as the physician is not in a disciplinary status (in other words, the physician is cooperative in seeking treatment), confidentiality is assured. Only when a formal complaint is filed, must records cross into public access. While the physician remains in treatment, and there is no identified victim of incompetent practice, the records and progress reports are given investigatory confidentiality. Thus, pressure is kept upon the hesitant physician to continue with prescribed treatment. But once there is a named victim, action by the Board is prompt and at the least a public consent order to obtain treatment is issued, and the license is suspended.136 It should also be emphasized that the public's need for access to the courts is not harmed by affording protections of confidentiality to the investigational records of licensing boards. However, the loss of such protections clearly is harmful to the public's interest in safer health care.137 The 132

Crawshaw, Bruce, & Eraker, An Epidemic of Suicide Among Physicians on Probation, 2 4 3 J.A.M.A. 1915 (1980). 133 O R . R E V . STAT. A N N . § 677.425 (Butterworth 1989). See also id. § 192.500(2) (h) (barring public disclosure under § 677.425). But see id. § 677.450 (the licensing board may relate disciplinary information to a health care facility). 134 Id. § 677.450. 135 I L L . A N N . STAT. c h . 111, ¶ 4400-23(1), (2) (Smith-Hurd 1989). 136 Telephone interview with J. Goldberg, Medical Prosecutor, Dept. of Professional Regulation, Illinois (May 2 6 , 1989). 137 Thacker, Discovery of Peer Review Records—Two Competing Public Policies: The Need for Liberal Discovery Versus the Need for Confidentiality, 5 3 U . M . K . C . L . REV. 6 6 3 , 674 (1985).


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ill-conceived West Virginia decision in Daily Gazette makes publicly available, indeed promotes publication of, those records previously and properly shielded. The necessity for selective confidentiality, however, is critical. The combination of mandatory reporting and the probability of public disclosure will further intensify resistance to reporting and reluctance by the impaired physician to voluntarily seek treatment.138 Maine's stringent mandatory reporting statute139 bars disclosure by its Board of Examiners or the impaired physician program of information received or generated by the board for use in a civil action. This protection also is extended to peer review information. The Maine Medical Association statistics140 indicate that this clear statutory assurance of nondisclosability blunts resistance to mandatory reporting. In Rector v. Board of Medical Quality Assurance,141 the California Appellate Court granted the plea of the appellant physician that information about his case before the board not be disclosed publicly. This physician's license was threatened by the board because, while he was president of the hospital, he had not reported an impaired physician whose travesties were well known by him, even though a mandatory reporting statute was not in existence. Because the information had come to him in his administrative role rather than through his activity as a physician, the court barred deprivation of his license. Reasoning that he had already suffered considerable inimical publicity because the impaired physician had committed outrageous sexual assaults in the hospital and the case had been page one news in the state for some time, the court ordered that its decision not be published. Through a strict interpretation of the state constitution, the West Virginia Supreme Court decided in the Daily Gazette case to allow full public disclosure even of dismissed charges. The California appellate court's broad humanistic reasoning in Rector, showing concern for a physician's self-respect and reputation, would not withstand the Daily Gazette court's narrow view relative to openness of the courts. But regard for such protection is demonstrated in the Florida Medical Practice Act, which provides that, under specified circumstances, certain noncompliant physicians will not be identified in court proceedings, records, or documents, which are to be closed to the public.142 138

Comment, The Chemically

Dependent

Physician:

Liability for Colleagues

and Hospitals in Califor-

nia, 21 S A N D I E G O L . REV. 4 3 1 , 4 5 2 (1984). 139 140

141

142

M E . REV. STAT. A N N . tit. 2 4 , § 2510(3) (1989). MAINE

MEDICAL

ASSOCIATION,

STATISTICS O N M E D I C A L DISCIPLINE A N D PHYSICIAN

IMPAIRMENT

(1987). 3 C i v . 19196 (Cal. A p p . 1982) (not reported and therefore unavailable as precedent, but the arguments a n d opinions a r e still timely a n d pertinent t o this topic). F L A . STAT. A N N . § 458.3315(4) (d) (West Supp. 1989).


162

WALZER

As in other issues of privilege, when the holder brings a civil action, the privilege generally is lost. Thus, in most jurisdictions, if a physician contests the action of a licensing board in court, the records of the board may be entered into evidence at trial. The recent Minnesota Supreme Court case of Doe v. Minnesota State Board of Medical Examiners^ is of interest in this regard. There, a physician succeeded in his effort to bar the state's Board of Medical Examiners from including in the records to be disclosed those misconduct charges against him that had been dismissed in board proceedings, as well as the portions of the final board decision relating to those charges. The background of this case involved a physician reprimanded by the board for misprescribing medications. In the same proceedings, the board found credible evidence that the physician had engaged in sexual relations with some patients, but the panel could not agree to impose a penalty. Therefore, the misconduct charges were dismissed with prejudice. The decision issued by the board described not only the physician's professional but also his marital history, and even his ex-wife's suicide 25 years earlier. It also detailed the dismissed charges. The physician immediately sought an injunction in district court to prevent the release of the dismissed charges. The district court denied the injunction plea. The physician then obtained temporary prohibition from the court of appeals, with remand to the district court. The board then appealed the district court's decision to grant a permanent injunction. The appeals court reversed, holding that the board's decision as written was public under a number of state statutes. The physician appealed to the state supreme court for de novo construction of applicable statutes. The Supreme Court of Minnesota reasoned that data contained in a public document is not necessarily made public. The court's analysis focused on the scope of data that can be disclosed publicly under the relevant statute. Its conclusion hinged on a rule of the board144 that required release of every decision and order adverse to a party. The court held that the dismissal certainly was not adverse to the physician, and the board was not a party, but rather a decisionmaker.145 Most states will withhold from discovery and admissibility in evidence the investigatory data gathered by the licensing board, because much of it might be unsubstantiated and unfairly prejudicial to the physician. Such disclosure also might compromise investigational methods or sources. If debate by the licensing board panel is technically considered to 143

435 N.W.2d 4 5 (Minn. 1989). Minn. R. 5615.1100 (1987), as applied under M I N N . STAT. § 13.03(4) (1986). 145 Doe, 435 N.W.2d at 50. 144


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be part of the advisory and investigatory closed session process, all consideration except the final determination made in open hearing can be shielded from disclosure.146 Generally, reporting statutes regarding impaired physicians and peer review proceedings are responsive to indications favoring confidentiality. Notwithstanding the public's right to disclosure of information by courts and administrative agencies, certain reliable guarantees of nondisclosure are essential to the process of identifying impaired physicians and separating them from practice. Confidentiality is the catalyst in constructive efforts to accomplish this end. Clearly, the balance is a delicate one. Where confidentiality is concerned, despite its many protectors, the wolf is at the door. 3. Confidentiality of Medical License Applications Other information to which a licensing board is privy includes information provided by a physician applying for a medical license. This information varies somewhat from state to state, but with the current national effort to screen out impaired and incompetent physicians at the entry gate, health details frequently are sought at the time of licensure application. So also are details about the applicant's record of malpractice awards and settlements and professional discipline. Thus, private details previously protected can be forced into public light. The commitment that state licensing boards have to public disclosure of this type of information is a strong one. A 1989 survey conducted by the Federation of State Medical Boards asked 52 state and territory licensing boards if individual physicians' applications for licensure should be open to the public. Forty-two boards said yes while 10 voted for confidentiality.147 Presently, each state has its own formula for dealing with this issue of disclosability of medical license applications. The trend is to seal from public view the section of the application that contains the physician's health history, which is the section that contains questions about impairment history. The South Carolina Attorney General and the state's Board of Medical Examiners treat all license applications as public documents. However, that information is withheld from the public if disclosure would constitute unreasonable intrusion into personal privacy. This policy is derived from a narrow construction of an exception in the South Carolina Freedom of

147

Licensing boards have been developing policies along this line, and generally attempt to keep confidential those records relating to the investigatory phase of a case. The great majority of states do not treat records regarding dismissed cases or groundless allegations as being subject to public disclosure. See R.I. GEN. LAWS § 5-37-9 (1989); MASS. GEN. LAWS ANN. ch. 112, § 5(h) (West Supp. 1989). D. Breaden, supra note 85.


164

WALZER

Information Act.148 Furthermore, the state medical board regulations take advantage of the act's discretionary agency exceptions, enabling the board to declare disciplinary hearings closed.149 In contrast, Maryland's Public Information Act protects "the part of a public record that contains information about the licensing of an individual in his or her occupation or profession."150 In West Virginia, particularly since the Daily Gazette decision, all disciplinary hearings of the licensing board are open. However, the board treats applications for medical licensure with confidentiality. Here, the applicant's right of privacy is viewed as governing, and the courts have not, as yet, disturbed this policy.151 In the federal system, medical information is exempted from the FOIA when the disclosure would "constitute a clearly unwarranted invasion of personal privacy."152 The Act thus provides only limited protection for medical records in the hands of federal agencies. As distinguished from the West Virginia Daily Gazette holding, however, the Act recognizes the sanctity of "personal privacy" where the public has neither the need for nor the right of entry into information that is reasonably private.153 It appears to be only a matter of time until new issues erupt over the discoverability or disclosability of personal information given in medical license applications. Where such data is deemed necessary for a board's determination of professional qualification, the argument can be made that material should be available as well to a trier of fact in a malpractice or other negligence action. The spectrum of policies and treatment across different jurisdictions indicates the arguability of whether information of past impairment or license suspensions, useful to such screening procedures, is rightfully or appropriately open to the public. The concept that this information may be protected by peer review immunity is an interesting one. Less likely to be challenged is the confidentiality of disciplinary activities conducted by boards at points along the course of investigation prior to formal hearing. The policing authority's need for private informal conferences and proceedings is broadly and deeply entrenched in most jurisdictions. 148

S . C . C O D E A N N . § 30-4-40(a)(2) (Law Co-op. Supp. 1988). See Seeling, supra note 6 5 . 150 M D . STATE G O V T C O D E A N N . § 10-617(h) (1988). Maryland and Florida view acceptance of the license to practice medicine as implied consent to take an unprivileged physical or mental examination. Refusal t o take such examination would b e held prima facie evidence of inability to practice competently. 151 Telephone interview with D . Rodecker, Counsel, West Virginia Board of Medical Examiners (Mar. 8, 1989). 152 5 U . S . C . § 552 (Supp. V 1987). 153 Access to the data stored in the national data bank created by HCQIA appears in the discussion of the Act below. 149

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165


4. Confidentiality of Stipulated Treatment of an Impaired Physician The treatment provided by impaired physician programs basically utilizes a psychotherapeutic approach. It often is begun with several weeks of in-patient diagnostic and detoxification care. A lengthy course of treatment follows and can easily exceed a year's duration. Where the physician's license is suspended, or the physician is on probation status, the licensing board typically requires a periodic progress report from the approved therapist. The amount and depth of information required generally is not extensive. Controversy has arisen regarding the extent of privilege applicable to stipulated treatment. Psychotherapists and medical professionals argue that the patient must be assured of confidentiality so that trust and truthfulness in treatment will not be jeopardized. In this regard, the impaired professionals statutes of Pennsylvania and Florida require that a therapist disclose to the licensing board information that is not otherwise shielded by law.154 Illinois also has a statutory requirement,155 while the Connecticut legislature left the requirement to the board for case by case determination.156 New York, Connecticut, Florida, Pennsylvania, and Rhode Island are five of the growing number of states that, either through statute or formal agreement, do not require disclosure of the impaired physician's identity to the licensing board or disciplinary agency if the physician/patient, prior to board action, is cooperating in an approved treatment program.157 The Federation of State Medical Boards and the American Medical Association data banks do not carry information on such physicians. This assurance of privacy permits a colleague or treating physician to urge the patient to enter an approved program and/or to self-report to the licensure board, freeing the other physician from the reporting duty and from any ethical conflict of breaching privileged and confidential communication as well as the patient's trust. Florida requires that therapists' reports be made to the Physicians Recovery Network only when treatment fails or does not progress satisfactorily, and requires no disclosure of confidential information.158 However, 154

155

P A . STAT. A N N . tit. 6 3 , § 422.4(b) (Purdon 1987) (this provision is aimed at the noncooperating physician o r o n e not successfully rehabilitated); F L A . STAT. A N N . § 4 5 8 . 3 3 1 ( 1 ) ( S ) (West Supp. 1989). I L L . A N N . STAT. c h . 111, ¶ 4400-23(1), (2) (Smith-Hurd 1989).

156

C O N N . G E N . STAT. § 20-13e (1989).

157

N.Y. STAT. A N N . PUBLIC HEALTH LAW § 230(1 l)(g)(i) (McKinney 1989); S. Peck, supra note 3 9 ; F L A . STAT. A N N . § 458.3315 (West Supp. 1989); P A . STAT. A N N . tit. 6 3 , § 422.4(b) (Purdon 1987); Protocol between R . I . Medical Society and Board of Professional Regulation (1984; still current). See Rakatansky, supra note 4 4 . Physicians Recovery Network Protocol (Fla. 1988).

158


166

WALZER

the Florida statute requires all licensed physicians to report to the Recovery Network any knowledge of another's breach of the rules of the board.159 This presents the treating physician with a difficult choice when the physician/patient relapses. Because certain treatment information could be provided to the licensing board as required or "leaked," many impaired professionals seek treatment, voluntary or stipulated, in a state in which they are not licensed. This is one reason for boards to require approved rehabilitation programs when stipulating treatment. Many states have a statutory physician-patient privilege covering testimonial evidence, while the common law offers no protection from testimonial disclosure of communications within the physician-patient relationship.160 Federal protection is limited. As for one's right to privacy in medical care, the United States Supreme Court, in Whalen v. Roe, held that "an individual possesses no reasonable expectation that his medical history will remain completely confidential."161 While some expectation of privacy in medical care is reasonable, the scope of protection is unclear. Another area of contention vis-a-vis disclosability of treatment or the duty to report an impaired physician involves conflicts of law issues and preemption regarding both the areas of confidentiality of agency records and of the impaired physician's identity. If the impaired physician were disabled on the usual basis of alcohol or controlled substance abuse, and enrolled in a federally assisted treatment program, would the federal acts and regulations mandating confidentiality control as against state legislation or case law? When proposed legislation in Virginia would have required hospitals to report the voluntary and involuntary treatment of physician/patients for substance abuse, it failed to pass because it ran a cropper on federal regulations for the confidentiality of records of those treated for alcohol and drug abuse.162 Illinois circumvents federal preemption with its requirement that a hospital's notice of a physician's treatment elsewhere be reported by the hospital that restricts, suspends, or dismisses the impaired physician.163 The Department of Health and Human Services promulgated the current regulations restricting disclosure of patient records held by federally 159 160

161

162 163

F L A . STAT. A N N . § 458.331(e) (West Supp. 1989). This is so because n o such testimonial privilege existed in English common law; states desiring such a privilege have legislated it. 429 U . S . 589, 602 (1977). See also United States v . Calandra, 414 U . S . 338, 353 (1974) ("there is no right of privacy before a grand j u r y " ) . Personal communication with L . McGehee, Virginia Medical Society (1987). ILL. A N N . STAT. c h . 111, ¶ 4400-23(1), (2) (Smith-Hurd 1989). See also GUIDE, supra note 1, at 21.


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funded treatment programs for alcohol and drug abuse.164 These regulations generally provide that records of treatment in specialized, discrete alcohol and substance abuse programs or units, even in a general hospital, are confidential. There are also certain exceptions. For example, courts have authority to mandate disclosure of confidential information when patients pose a threat to third parties165 or when child abuse or neglect is suspected.166 Disclosure of information also is permitted when needed in a criminal investigation or prosecution, or where the patient has raised the subject matter in a legal proceeding.167 Under the HHS rules,168 patients entering a federally funded drug and alcohol abuse program must be given written notice about their confidentiality rights and the specific limitations.169 Thus, New Jersey and Massachusetts medical societies assert that, since a member physician may deduct dues paid to a medical society from federal income tax, and furthermore, since the society is federally tax exempted, the federal government is thereby funding the medical society.170 It is argued that the treatment program for its member physicians is in fact a federally funded one, subject to the federal confidentiality provisions governing medical records, including the names of the patients. In a confrontation on this very issue between the Massachusetts Medical Society and the Massachusetts Board of Registration in Medicine, the society argument prevailed. The board backed down from its original position of refusing to view the society treatment program as a federally assisted one. In Virginia, a statute prohibits171 the reporting of medical records, information, or data generated in connection with treatment in a substance abuse program "directly or indirectly assisted by any department or agency of the United States" if the disclosure would violate federal law.172 It may be construed, along the theory argued by the Massachusetts and New Jersey medical societies, that a society program in Virginia would be protected by this statute. This area is foreseeably the newest battleground for the struggle between the licensing boards and medical societies 164

4 2 U . S . C . A . §§ 293ee-3, 293ff-3 (West 1989); 4 2 C.F.R. § 2 (1988). 42 C.F.R. § 2.63 (1988). 166 42 U.S.C.A. § 2900ee-3(e) (West 1989); id § 290ff-3(e); 32 C.F.R. § 212(c)(6) (1988). 167 42 C.F.R. § 2.63 (1988). See C.B. Pascal, Revised Regulations to Protect Confidentiality of Alcohol and Drug Abuse Patient Records: Overview and Summary 8 (Dep't Health & Human Services 1988). 168 4 2 C.F.R. § 2.22(d) (1988). 169 Sample text of the written notice is obtainable from D e p ' t of Health & H u m a n Services, Section on Alcohol, Drug Abuse, a n d Mental Health Administration, 5600 Fishers Lane, Rockville, M D 20857. 170 Canavan, supra note 80. See also Connecticut Impaired Physicians Committee, Special Meeting of Apr. 2 7 , 1989 (attended b y t h e author). 171 V A . C O D E A N N . § 54.1-2907 (Michie 1988). 172 21 U.S.C. § 1175(a) (Supp. 1988); 42 U.S.C. 4582(a) (Supp. 1988). 165

168

WALZER

relative to control of impaired physician programs and access to confidential information.


HI. MANDATORY REPORTING AND IMMUNITY "Mandatory reporting" is the phrase commonly applied to the legislated requirement that statutorily designated individuals or institutions report clearly or likely impaired physicians either to a state medical society or to an existing licensing or disciplinary body. Mandatory reporting of physician impairment by colleagues, hospitals, or medical societies, with accompanying shield laws for the good faith reporter, has become the rule in almost all states and under HCQIA.173 The mandatory reporting laws identify the parties who have an affirmative duty to report. These parties generally include physician colleagues and health care entities on whose staff the impaired physician serves. Furthermore, the failure to report as required by law may result in disciplinary action against the designated individual who knew or reasonably should have known of a colleague's impairment.174 State mandatory reporting laws generally provide immunity for persons who report an impaired professional, while some notably do not.175 But the trend clearly has been toward broadening the scope of the immunity and confidentiality offered, in order to undo resistance at this level while extending the reporting duty to nurses and other health professionals. The number of jurisdictions offering statutory immunity from civil and even criminal liability for those conducting an approved treatment program is growing, and the Federation of State Medical Boards favors this shield.176 State medical societies generally have opposed these so-called "snitch laws." The New York and New Jersey medical societies have been the most outspoken because membership believes that these laws require an underhandedness on the part of the reporter and an emphasis on the punitive aspect of the state medical licensing board's activity.177 Furthermore, 173

4 2 U . S . C . § 11101 (Supp. V 1987).

174

See, e.g., A R I Z . R E V . STAT. A N N . § 32-1451(a) (1988); ALASKA STAT. A N N . § 08.64.336 (Michie

175

176 177

1988); P A . STAT. A N N . § 422.4 (Purdon 1989); N.Y. E D U C . LAW § 6509(10) (McKinney Supp. 1989) (including in its definition of misconduct the willful violation of the reporting requirement set forth in N.Y. P U B . HEALTH LAW § 230(11) (McKinney Supp. 1989)). In 1977, New York's reporting statute was the first to shield from litigation, and to grant anonymity and immunity t o , those w h o report impaired or apparently impaired physicians in good faith and without malice. Express immunity for the reporter is not provided, for example, in the reporting statutes of Alaska, the District of Columbia, Minnesota, and Wisconsin. See N.Y. P U B . HEALTH LAW § 230(11) (McKinney Supp. 1989). Canavan, supra note 8 0 .

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169

protection from suit does not salve the reporter's conscience. Such statutory provisions for reporter immunity underscore the anguish that accompanies the act of reporting a colleague's impairment. "All this only drives the whole effort underground."178 Nevertheless, the Federation of State Medical Boards has revealed that reported cases of physician impairment have increased some 45 % in the past five years, as the mandatory reporting laws have proliferated.179 Therefore, the licensing boards are united in their advocacy of mandatory reporting as a necessity to overcome medical disinclination to report and to weed out the impaired and other unfit practitioners from the mainstream of Downloaded by [New York University] at 09:58 21 May 2015

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