Most physicians wake up every day intending to do the best possible job and help their patients. They work long hours, sacrifice a normal family life, and don’t always receive a thank-you note.
Digest the following hypothetical.
You and your partner are the only neurosurgeons for a small community of 50,000 people. The draw area is larger, say 250,000. The closest major metro area is 80 miles away. And that city has a medical school, teaching hospitals, and full service trauma treatment.
You and your partner alternate call for both the practice and the ER.
Your partner is on call.
You’ve had a long week, and are ready to kick back. In anticipation of the weekend, you just finished a large glass of Cabernet. Yum.
The ER calls and you pick up the phone. You didn’t have to. But you did.
There was a 3 car pile-up on the highway and the ER is full. You partner has already taken the most serious injury, a patient with a subdural hematoma, to the operating room. He’s not expected out of the operating room for some time.
The patient with the next most serious injury just returned from CT. He has a large epidural hematoma – and his neurological status is deteriorating quickly. The rest of his scan looks fine. And was awake and talking just prior to going to the CT suite.
The ER knows you’re not on call, but they hope you will help. They know that calling for the helicopter to transfer the patient to the adjacent metro area will take time. Even in the best of circumstances, the delay will cost a lot of neurons; and perhaps the patient’s life.
What do you do?
Most doctors I know will say, “I’ll be in shortly. Please help get the OR team in place.” The reason: They know they can save a life and preserve function. The procedure isn’t technically demanding. It will not take long.
OK. Now I want to change one fact.
A new law has just been passed. Here are just some of the details.
Requires Hospitals to Conduct Alcohol and Drug Testing on Physicians. This measure requires hospitals to conduct testing for drugs and alcohol on physicians as follows:
- Following an adverse event, tests on physicians who were responsible for the care and treatment of a patient or prescribed medication to a patient within 24 hours prior to the adverse event. Physicians would be required to make themselves available for drug testing as soon as possible after the adverse event occurs. Failure to submit to drug testing within 12 hours after the physician learns of the adverse event can be cause for suspension of the physician’s license.
The hospital would be required to bill the physician for the cost of the test. The hospital would also be required to report any positive test results, or the willful failure or refusal of a physician to submit to the test, to the Board which must do the following:
- Refer the matter to the Attorney General’s Health Quality Enforcement Section for investigation and enforcement.
- Temporarily suspend the physician’s license pending the Board’s investigation and hearing on the matter.
- Notify the physician and each of the health facilities at which the physician practices that the physician’s license has been temporarily suspended.
Back to our hypothetical. You just finished a glass of wine. The ER calls. You’re not on call. Your partner is tied up in the OR. You can save a life quickly rather than allowing the patient to be transferred to distant city for treatment, risking injury via delay.
If that law were in place, I know what most physicians would do. They say they’d like to help. But, they just had a glass of wine. Can’t put their license at risk. Sorry.
While the vignette was hypothetical, the law most certainly is not. If the Troy and Alana Pack Safety Act passes in California by referendum this November, this will be the new landscape. “Sorry, I’d like to help. And I’m sure I could save the life. But, I can’t come in. Just had a glass of wine.”
I think not saving the life should be reported to the Board, too, and would be even greater cause for loss of license. The right thing to do would be to go in, perhaps getting some documentation from a hospital administrator– or even from the State Medical Board– on the way into the ER. Perhaps helping supervise another physician do the procedure could be accomplished. The Safety Act may be the law, but there may well still be ways to save patients’ lives within the contraints of professional ethics at the same time.
I understand your point, however I don’t think one glass of wine, even a large one, would be a problem. One generally metabolizes about one drink per hour. By the time one gets to the hospital, by taxi if needed, gowns and scrubs in, over 30 minutes will probably have passed and one’s alcohol level should be below what’s considered a DUI, if it wasn’t from the start, and should certainly be undetectable within 12 hours after any adverse event.
Within hours there will be no alcohol in the blood. Also if there is alcohol on the test who is to say it was not from a drink after the case? Finally a single drink should not make a surgeon unable to do a simple case like an epidural. A pilot can fly 8 hours after alcohol, even if there is still alcohol in the blood. Although after 8 hours it would be very little alcohol still left.
It is a stupid law. How many bad outcomes and adverse events are due to physician intoxication? I would guess very few.
The standard should be does the surgeon feel as if they can do the case after having a drink? If so who is the legislature to say otherwise? One could replace having a drink with taking cold medicine, being up all night, illness, pain meds, etc. The surgeon should be the one determining their fitness to practice not some law. We are responsible for people’s lives and have been entrusted by society to practice medicine we surely can be entrusted to determine our own fitness to practice under the circumstances in this scenario.
If there is an adverse event that results in a lawsuit let the trial attorneys sort it out. We don’t need more laws.
Who are Troy and Alana Pack? It figures some asinine law like this would be coming out of California. I suspect the proposed law is a knee jerk reaction to something that happened involving a high profile patient.
What do you mean by adverse event….an accident, a tragic event, shooting ?? Would the law mandate that any Doc who had anything to do with the people “in the event” would have to be drug/etoh tested?
Let’s change the hypothetical
You’ve had a hard week, you’re home and want to kick back and get loose so you have 3 drinks or live in Colorado and decide to smoke a joint.
We are not pawns of the state, so I say that when off duty we should all always report that we are incapacitated and unavailable. Let them suffer the consequences of their demeaning and ill conceived laws.
Interesting scenario. I agree. Alcohol would not be a factor. However, it is extremely naive to believe that a government agency would be that thoughtful or reasonable. In reality, I fear the contrary. Our government is generally unreasonable, draconian and quite frankly, idiotic. The dilemma is, should the doctor refuse, and so, allow the citizenry bear the consequence of the government they put into place. By the way, assuming the doc was tested and found to be positive and a hearing cleared him/her; how much would it cost for the doctor’s defense?
“I’ll be right in. Get him to the OR and get anesthesia and nurses. My ETA is X.”
I once canceled (had to reschedule later in the day) a meeting trip from Denver to Atlanta because two GSW heads arrived at Denver General at roughly the same time (around 0200).
Your action, with time so critical in an epidural, may save a life.
I agree with you the law is outrageous, and is just one of the many controls on physicians that are incrementally being placed.
At the same time, don’t forget the current (well, the last 20 years) of sham peer reviews and corrupt medical boards that we, unsuspecting, may face. No Board is more corrupt and dishonest than the Colorado Board of Medical Examiners
I can’t forget the incompetence of the Littleton Hospital (Colorado) OR. I was called in by the ER for a 16 yo boy with an acute subdural, badly decreased level of consciousness, and an enlarging pupil When I arrived, the ER said the OR was getting ready I pushed the patient upstairs, past the OR desk, where the OR head nurse/overall supervisor, stood in her business suit and said, “Good afternoon, Dr Stecher.” I shaved the head and we pushed the patient into an unprepared OR. Great final result, but striking incompetence.
Points: time is of the essence, do what is right. it takes time to transfer, and to set up at a new facility.
How would you feel if he patient died and you hadn’t done all you could?
The answer is simple. If you not on call do NOT answer your phone. If I am not on call I do not answer my phone.
In South Carolina, there is an extant remedy. You cannot practice medicine while you are under the influence. Period.
Except: if an uncompromised colleague says that you are competent, you can do whatever you need to do.
Alternatively, it might not be a bad idea to have a consent drawn up for exactly this scneario. it would read more or less:
Dr. ___________ has had one or more intoxicating beverages, but there is no reasonable alternative to him trating my _______________ according to Dr. __[other]_____________. Accordingly, I agree to hold Dr. [first Dr.] harmless should he fail in trying to help my _____.
Jeff–would something like this fly?
JH
Interesting that this scenario has provoked more of a response than any other recent one. I wonder why that should be.
A scenario like this could never happen to a podiatrist, or even most practicing physicians in large communities. But it probably can happen to neurosurgeons, cardiac surgeons and obstetricians, who are targets for emergency calls. We have elected a “nanny Government.” There are always unintended consequences with hyper-regulation. The above scenario is just one of a number of possibilities, including when a physician encounters a life threatening accident on the highway and must make a decision to drive by, or stop and act.
Society and individuals face the brunt of these regulations, including any possibility of positive effects they have. Most of the issues facing doctors in the potential vote of the new California law are already thoroughly covered within other statutes that cover physician’ behaviors. This is just another gratuitous hyper-regulation that frankly fits the mindset of liberal California.
Fortunately, I think the scenario above is a rare circumstance. That said, the extraordinary training and accomplishment of a neurologic surgery career DESERVES time off, without having to publicly atone for having a glass of wine with dinner. You put in the time, talent and effort to learn and perform the Rachmaninoff 3rd Piano Concerto, in a manner of speaking. We all have fantasies of seeing a plaintiff’s attorney, their wife, son or daughter in the place that they put the rest of us in. It’s not that we wish them ill, but the devil sitting on our left shoulder apparently does.
You became a physician partly to be of service to humans, save and help make lives whole. But you cannot do this if your license is taken away. You did not pass those ridiculous, Draconian laws. They are not your personal fault. You have no choice. You must say no to doing a surgery after a glass of wine. The actual chances of your doing real damage are slight; and the possibility that you can be of real service, great. But you still have no choice.
There are other examples: Palestinians voted for Hamas and look at what they are getting. If people vote for regulation, they deserve the entire bundle. That is what voting means.
Michael M. Rosenblatt, DPM
Sincoff is funny.
Here’s a novel concept. If you have dedicated your life to and reaped all the benefits of being gifted enough to be a neurosurgeon in a locale such as this and done so by your own choice, and you could possibly get called to save someone’s life if necessary, how about you just (and I hope you could possibly survive this) not have a glass of wine???? Is alcohol really more important than the gift you’ve been given to be saver of a lives?!? (No, I’m not some sanctimonious recovering alcoholic railing against drinking and I like Cabernet as much as the next guy)
If you don’t like this possible scenario, then don’t be a doctor!! No one made you. Or, God forbid, don’t drink {inhale deeply with raised eyebrows now}.
Perhaps, choose to live somewhere else or turn off your phone or, for that matter, anything else that you are completely free to choose to do if you so decide.
For goodness sake, when did we all get anointed with a crown that makes us think our occupation is somehow more important than anyone else’s??Because of that, we require the absolute privilege to drink booze whenever we want to without any consequences what so ever? Would you argue the same for the pilot of your commercial airliner you’re sitting in?? Or the cop or fire fighter saving your daughter’s life?? Would YOU say “Wine?, yeah, sure go ahead drink up bud.” Nope. We would all be lining up with attorneys at hand ready to sue when anything untoward happened to said daughter.
We’re each absolutely no different than the very patient in the helicopter. You don’t like this scenario?? Sell insurance or be a “financial planner” or any other occupation. You are of above average intelligence and have an advanced education and you can be whatever you want to be. Not many people get opportunities like that. Choose a different occupation if you wish. Given your intelligence and work ethic you’ll probably make more money and you can drink a glass of wine whenever you choose.
Bottom line, we all need to get over ourselves and just do what’s right based on the choices we’ve made. Cheer up, pass on the glass of wine, and be thankful for the abilities you’ve been given.
That’s my humbly offered recommendation regarding this scenario. Rip into me if you wish but, my friends, please remember, life is way to short to take yourself to seriously.
Alcohol causes cancer and also is a direct cardiac poison.
Some countries have zero tolerance for blood alcohol at any level.
Drug use is common in the medical profession. Easy target for any law suit.
There are enough challenges in this profession as it is. Cutting them out is beneficial.
Even as a DPM, I knew that when I had a surgery schedule, which was basically every day, that if a patient or their family member smelled ETOH on my breath, I was done for. Most of us don’t ever drink during lunch for that reason. And yes, no matter what you think or how you try to hide it, they CAN smell it on you. And that includes your technical assistants. Even as a DPM, sometimes I actually performed decompression surgery around important peripheral nerves supplying the foot and ankle.
Being a physician (or other responsible, important) professional in our society requires that we engage a standard of personal perfection. This means that none of our behaviors can be an outlier for any reason. I get that. We all get that.
But I think that also gets a bit tiring. Small doses of wine are not proven to be severely damaging to our personal health and may improve it, according to some reasonable research.
There is an issue of behavior hierarchy here: Having a drink of wine with dinner is not the moral equivalent of hiring a prostitute or smoking a joint. Ironically, after your reputed visit with the prostitute, you would not be considered impaired. There is a humorous imbalance here.
I know that a couple of neurosurgeons responsible for a small locality have a special imprimatur. Maybe that’s what you signed up for, with the full expectation of those consequences. But neurosurgeons deserve a very large salary and a personal life too.
Increasingly our Media and Congress is against that, and insists on treating you very talented people like children. Well, I resent that, and it doesn’t even affect me.
Michael M. Rosenblatt, DPM
If you visit the Troy and Alana Act website you’ll notice that the act calls for increases in the CA cap on (pain and suffering) damages. That is the point, and the trial attorney’s are using this sad story, this hurt family, and the smokescreen of the alcohol and drug testing to get the cap on damages increased. Cynical but true. Vote the act down.
Do you think John McClean was clairvoyant when he wrote American Pie? Gone are the days when disciplinary actions were intra-departmental.
Any Downstate alumni remember SHIT night? (So happy it’s Thursday night). Anyone remember resident’s dinners, or even a lunch with an attending where drinks the norm? I remember a cardio-thoracic attending having a few drinks with lunch and then we, the surgical team, were called for an emergency thoracotomy. I remember being on-call and caring for a post-tonsillectomy hemorrhage where the attending had AOB. No one got hurt, and lives were saved. Period.
This is just one more example of the emasculation of physicians, and bureaucrats on steroids.
Anyone physicians NJ looking to start a 3rd-party-free, 24-hr emergency clinic? Someone’s going to have to care for the patients.
Caller ID says the call is from the hospital ER. Don’t answer the phone.
Citizens elect the people that make these laws and they have to live by them also. This is one patient. If you lose your license or it gets suspended you will not be able to help anyone for the term of the suspension or even permanently. Call the helicopter and have the patient flown to the next large hospital.
My medical license is crucial to me earning a living for my family and the risk of losing it is too high in this scenario.
Such nice comments. (sarcasm)
Don’t answer the phone if you are not on call and don’t want to be available or don’t think you should be available!
It doesn’t matter what you do to cover yourself…..some lawyer will find a way to prove you were “compromised.” As far as the patient and the lawyers are concerned, a bad outcome is anything that doesn’t leave the patient BETTER than before the event. And those of you who haven’t been sued have no idea what the process is like….whether you win or lose, whether you are right or wrong, it is life-changing.
If the hospital wants more coverage so they can be all things to all people, than they better pay for it by bringing on another surgeon. It is not your responsibility to be there all the time.
It does not matter whether alcohol is bad or not, per some comments…some of us enjoy our glass of red wine. Or our trip out of town. Or spending uninterrupted time with family and friends. In the old days in this scenario, you would use your judgement and make the decision without thinking about it. Now we have to second guess everything we do.
I hope Californians who plan to vote for this new law enjoy their new entitlement for perfection….if they can find a physician willing to put up with this stuff. Remember…we’re mad as hell and not going to do it anymore!
After brewing over the well articulated argument posted above by BK, I thought I would change the scenario a bit and add two more sense:
In an ENT / facial plastic surgery practice, a small percentage of nasal-surgery patients, less than 1%, may experience nasal hemorrhage anytime within 21 days of surgery that could necessitate an ER visit and surgical intervention. Is the surgeon morally and legally expected to consume no alcohol during this time period? Are all solo-practitioners required to get “coverage” if a decision is made decide to order a glass of cabernet, or dare I say two glasses, with dinner?
These scenarios are not about the obviously impaired, “wasted” physician that should be drug tested and investigated due to gross professional misconduct. They’re about unnecessary governmental authority and regulation over the way we choose to live our lives.
🙂
I would like to clarify what this is about. In California we have had a $250,000 cap on noneconomic damages in malpractice claims since the 70’s. The trial attorneys have been trying to get it raised or removed ever since, to no avail. Having the cap has saved us from what would surely be more frivolous lawsuits and has kept our malpractice insurance premiums down. Having had no luck raising the cap legislatively, the trial lawyers decided to go to the voters of California. They have hired some of the best political consultants in the country and have learned that an initiative to raise the cap would never pass. What they have deduced is that an initiative that is ostensibly designed to protect patients from all those impaired physician who are harming them. In the fine print of this initiative is raising the cap too 1.1 million dollars with an annual COLA. It also has a clause that would require us to look up EVERY patient to whom we are going to prescribe narcotic painkillers on something called the CURES database. This is to prevent use il doctors from overprescribing painkillers to patients who might abuse them and in their impaired state cross over the median,, hit a car head on and kill a couple of kids as happened to Troy and Alana Pack, for whom the bill is named. They are the poster children for this sleazy attempt by the trial attorneys to get the cap raised. The problem is that the CURES database is barely functional and will be overwhelmed if this passes (think Obamacare website) but we will be liable for stiff penalties if we don’t comply. As far as the example of one drink when asked to go to the ER, it is much worse than that. If a physician was involved in an adverse event that may not have been discovered at the time, but lets say two weeks later, he will be required to go to the hospital for testing within 24 hours. A positive test result will mean presumed negligence on the physicians part. So if he decides to smoke a joint two weeks after, he is screwed. It is going to get real interesting to see how this plays out as we approach November. There is a huge alliance that has formed to oppose this with both the Dem and Rep parties, ACLU, Chamber of Commerce, many unions, and of course the California Medical Association. The only groups in support of it are the Trial lawyers and their “consumer protection” group. I hope that means it has no chance of passing, but this is, after all California-the land of nuts and fruits in more ways than one and it will depend on who shows up at the ballot box. This could not come at a worse time economically for California as its passage will surely raise the cost of delivering health care and result in a lots of doctors retiring early or leaving the state. The “patient protection” part of this initiative seems to me to be totally unconstitutional and would probably be litigated away, leaving the increased med mal cap which is really what they want anyway.
One suggestion was to have the patient (or more likely his/her representative) sign a release acknowledging the doctor has had one or many drinks – and that all agree having this surgeon do the surgery would, on balance, be less risky, than transferring the patient for care. This might help but only from the standpoint of medical liability in the tort system. It would have limited, if any, impact on any administrative process related to the doctor’s license if this law is implemented as written.
Regarding the release, the doctor would really have to play by the rules to obtain Good Samaritan immunity. There, he is not acting as a reasonably, prudent surgeon in like or similar circumstances. He is asking as a person who wants to render aid and may be able to help. As long as the doctor is not GROSSLY negligent, he may dodge a legal bullet if the outcome is horrific. So, the benefit to the doctor in taking advantage of Good Samaritan immunity is the standard for a plaintiff prevailing is raised from ordinary negligence to gross negligence. For the doctor to also take advantage of such immunity, he cannot charge the patient or his/her carrier.
I agree with those responses that the drug/alcohol screening portions of the statute were written to get the public behind the bill. If the bill is little more than “Let’s raise caps on pain and suffering”, it likely would be DOA.
Dr Enevoldsen has it exactly right. The trial lawyers want the pain and suffering cap to go and know that the public loves random drug testing. So they linked the two. Whether it is feasible or makes any sense matters not. If this thing passes it will be a disaster for medicine – the cost of care to everyone goes up and access to care for the poorest patients go down. Ugly as the “pee in a cup” and the “check the website for every post op patient needing some tylenol with codeine” provisions are they are in fact the lipstick on this pig designed to get it to pass. Anyone interested can contribute to the defeat of this thing at http://www.noon46.com/. We can use all the help we can get
What’s worse, being the “back up” guy, having a drink and not coming in, or being the “back up” guy, having a drink and coming in? What are the legal ramifications of being the back up physician, drinking and not being available or vice versa? I don’t know that has ever been through the courts? What is our responsibility when acting as a back up physician? I don’t know that I have read or heard of anything that specifically addresses this issue. How about being the back up, having a drink and then acting as a assistant? The new legislation in California for random drug and alcohol testing is compared to the airline pilot mandate. If the airline pilots have to submit for alcohol testing the docs should also since we are both involved in the public safety. However, the airline pilot knows when he will be flying. The back up doc never knows when he might be operating and thus cannot plan as the off duty pilot. If this legislation is to pass, which I hope it doesn’t, it will be a Pandora’s box for future legal action against docs in so many different ways.
I cannot imagine any physician willing to proceed with a surgery under the circumstances of his or her being “compromised,” no matter what the patient or the family signed. In most all cases, such a document would be signed without the immediate benefit of counsel. The Courts frequently toss aside competently executed documents that are signed under distress, because no counsel is present during the signature event. Getting the situation “transferred” to a Good Samaritan situation would be fought vigorously by the legal community, which would rightly fear that this defense might become more generalized into other circumstances.
And, as Medical Justice reported, this would not excuse him from the wrath of his Medical Board, even in extremis cases. Good Samaritan laws are provided so that people who come by a serious situation can make a reasonable attempt at first responder care. This would not include a craniotomy for release of a subdural hematoma in a hospital certified by the Joint Commission.
The patients’ family would of course counter that they were under enormous undue-stress and were basically forced to sign a document that they would otherwise not consider. After the patient expired or had a bad outcome, say permanent paralysis, the dollar signs appearing on the families’ horizon would convert them to totally different people. The family member you meet on Tuesday who begged you to operate would undergo a transformation suitable for a magic-act the day after they found out about the bad result on Thursday.
Even if the patient survived, any perceived lack of progress or deleterious side effect of the injury would be perceived as being YOUR fault. Sometimes people die, in spite of what you do or cannot do.
Michael M. Rosenblatt, DPM
I think under these circumstances to stop off at the closest bar for a drink on you way home might be appropriate. Who then could say when you had that glass of wine? Or suppose you just had a root canal and had taken one of your legally prescribed hydrocodones? The pain might be more impairing than the medication. If you can legally drive a car with an ETOH of 0.07, who is to say you were impaired.
Dr. Davant makes a couple of interesting points, among them, differentiating between legally prescribed pain relievers after dental surgery and the “artificial” legality of driving with a sub-illegal DUI alcohol blood level.
But there are differences: A dental surgery is not usually a choice, as well as the prescriptions taken to relieve the pain after it. A dose of ETOH is definitely a choice, and is viewed by society as a legal drug of intoxication and “pleasure.”
One could (and probably would try to) make an argument for comparing the ability to drive with a highly orchestrated, hand/eye co-ordination activity involved with a surgical procedure. Juries would decide that surgery took more skill. The equivalency argument could be made, but it would fail.
Then there is the issue of surgical judgment, and making intra-operative decisions. Any compromise in the surgeons’ sensorium, no matter how seemingly minor, would be viewed with suspicion and mistrust. There is a history of working with physicians who have drug/alcohol addictions in privacy, but they must first eschew doing surgery on patients. When a physician signs up for a drug/alcohol treatment program, they are not allowed to go back to active practice without approval by the people who manage their addiction treatment, and report progress back to the Medical Board.
One of the main reasons for working with addicted physicians privately, with the future opportunity for rehabilitation, is to prevent them from operating and practicing while under the influence. This is usually viewed by Medical Boards as a better solution than just trying to catch a doctor while intoxicated and making a public scene. Many physicians are quite skilled at hiding very severe drug addictions. Sigmund Freud was especially good at this. Medical Boards would rather have self-reporting after a private confrontation leading to direct transfer to addiction recovery centers.
Leading a physician away in handcuffs from the office or OR does not particularly benefit the public view of physicians. Admitting to a glass of wine and proceeding to do a delicate operation is a terrible idea, even if a life is at stake.
Michael M. Rosenblatt, DPM