A Publication of the federation of state medical boards OF THE UNITED STATES
IN THIS ISSUE:
of JJoouurrnnaall of
Legal Issues Medical Regarding LLiicceennssuurree Unlicensed Health Care and Practices and DDiisscciipplliinnee Nutritional Supplements
the role of state medical boards in regulating physician participation in executions
MEDICAL STUDENT SUBSTANCE ABUSE INTERVENTION
volume 95 number 3 2009 contents
quote ......
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.1 information for authors ......
...... 2 message from the chair ......
...... 3 message from the president and ceo ......
...... 5 legal issues regarding unlicensed health care practices and nutritional supplements Bruce W.
McIntyre, J.D., Alexandra O. Binek, Stephanie S. DelPonte, Eric Greenberg ......
...... 9 the r ole of state medical boards in regulating physician participation in e xecutions Ty Alper ......
...... 16 medical student substance abuse intervention: a case report and literature review, Daniel M.
Avery, M.D., Gabriel H. Hester, M.D., Rane McLaughlin, M.D., and Gregory E. Skipper, M.D......
. 27 from our international exchanges ......
...... 36 from our member board exchanges ......
...... 39 medicolegal decisions . . . . .
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. 43 JOURNAL OF MEDICAL LICENSURE AND DISCIPLINE Published Continuously Since 1915 Volume 95, Number 3, Fall 2009 All articles published, including editorials, letters and book reviews, represent the opinions of the authors and do not necessarily reflect the official policy of the Federation of State Medical Boards of the United States Inc. or the institutions or organizations with which the authors are affiliated unless clearly specified.
Editor-in-Chief FSMB Officers Subscriptions and Correspondence William E. Wargo, J.D., M.S.W. Chair: Martin Crane, M.D. Subscriptions and correspondence about Chair-elect: Freda M. Bush, M.D. subscriptions should be addressed to Editorial Committee Treasurer: James M. Andriole, D.O. the Journal of Medical Licensure and John W. Graves, J.D. President/Chief Executive Officer: Discipline, P.O. Box 619850, Dallas, TX Michael K. Helmer Humayun J. Chaudhry, D.O., M.S., 75261-9850. Subscriptions for individuals Ruth Horowitz, Ph.D. FACP, FACOI are $70 per year; single copies are $18 Susan R. Johnson, M.D., M.S. Immediate Past Chair: each. Subscriptions for libraries and C. Grant La Farge, M.D., FACC, Regina M. Benjamin, M.D., M.B.A. institutions are $140 per year; single FACP, FAPS copies are $36 each. Notification of Michael E. Norins, M.D., M.P.H. FSMB Board of Directors change of address should be made at least Sandra L. Osborn, M.D. Hedy L. Chang six weeks in advance. Enclose new and Sindy Paul, M.D., M.P.H. Leslie A. Gallant old addresses, including ZIP code. Leticia J. San Diego, Ph.D. Galicano F. Inguito, Jr., M.D., M.B.A. Danny M. Takanishi Jr., M.D. Ram R. Krishna, M.D. Authorization to Reproduce William A. Walker, M.D. Kim Edward LeBlanc, M.D., Ph.D. For authorization to photocopy or Bruce W. McIntyre, J.D. otherwise reproduce material under cir- Editor Emeritus Tully C. Patrowicz, M.D. cumstances not within fair use as defined Dale G Breaden Janelle A. Rhyne, M.D., FACP by United States Copyright Law, contact Lance A. Talmage, M.D. the Federation of State Medical Boards of © Copyright 2009 Jon V. Thomas, M.D., M.B.A. the United States, Inc. Such photocop- The Federation of State Medical Boards Cheryl A. Vaught, J.D. ies may not be used for advertising or of the United States Inc. promotional purposes, for creating new FSMB Executive Staff collective works or for resale. President/Chief Executive Officer: Humayun J. Chaudhry, D.O., M.S., Submissions FACP, FACOI Manuscripts, letters to the editor and Senior Vice President, Advocacy and other materials to be considered for Member Services: Lisa A. Robin, publication should be addressed to: M.L.A. Editor The Journal of Medical Licensure and Journal of Medical Licensure and Discipline (ISSN 1547-48IX, publication Discipline number 189-120) is published quarterly Federation of State Medical Boards by the Federation of State Medical P.O. Box 619850 Boards of the United States Inc., P.O. Dallas, TX 75261-9850 Box 619850, Dallas, TX 75261-9850 Telephone: (817) 868-4000 Submit by e-mail to: Fax: (817) 868-4098 [email protected]
Postmaster AMA PRA Category 2 Credit™ Send address changes to the Journal of The Journal of Medical Licensure and Medical Licensure and Discipline, P.O. Discipline qualifies as “authoritative Box 619850 Dallas, TX 75261-9850 medical literature” and reading the Journal is a valid activity for AMA PRA Periodicals postage paid at Euless, Texas, Category 2 Credit™. and additional mailing offices. Cover: © Peter Christopher/Masterfile
“each generation must, out of relative obscurity, discover its mission, fulfill it, or betray it .”
— Frantz Fanon
journal of medical licensure and discipline vol 95 number 3 2009 page 1 information for authors
The Journal accepts original manuscripts for consideration of publication in the Journal of Medical Licensure and Discipline. The Journal is a peer-reviewed journal, and all manuscripts are reviewed by Editorial Committee members prior to publication. (The review process can take up to eight weeks.) Manuscripts should focus on issues of medical licensure and discipline or related topics of education, examination, postgraduate training, ethics, peer review, quality assurance and public safety. Queries and manuscripts should be sent by e-mail to [email protected] or by mail to:
Editor Journal of Medical Licensure and Discipline Federation of State Medical Boards P.O. Box 619850 Dallas, TX 75261-9850
Manuscripts should be prepared according to the following guidelines:
1. An e-mail or letter should introduce the manuscript, name a corresponding author and include full address, phone, fax and e-mail information. The e-mail or letter should disclose any financial obligations or conflicts of interest related to the information to be published. 2. The title page should contain only the title of the manuscript. A separate list of all authors should include full names, degrees, titles and affiliations. 3. The manuscripts pages should be numbered, and length should be between 2,750 and 5,000 words, with refer- ences (in Associated Press style) and tables attached. 4. The manuscript should include an abstract of 200 words or less that describes the purpose of the article, the main finding(s) and conclusion. Footnotes or references should not be included in the abstract. 5. Any table or figure from another source must be referenced. Any photos should be marked by label on the reverse side and up direction noted. Tables and figures can be supplied in EPS, TIF, Illustrator, Photoshop (300 dpi or better) or Microsoft PowerPoint formats. 6. The number of references should be appropriate to the length of the text, and references should appear as end- notes, rather than footnotes. 7. Commentary, letters to the editor and reviews are accepted for publication. Such submissions and references should be concise and conform to the format of longer submissions. 8. If sent by mail, a PC- or Mac OS-compatible CD-ROM should accompany a printed copy of the manuscript. Microsoft Word format is the preferred file format. 9. Manuscripts are reviewed in confidence. Only major editorial changes will be submitted to the corresponding author for approval. The original manuscript and CD-ROM will be returned if the submission is not accepted for publication only if a SASE is supplied with sufficient postage.
page 2 journal of medical licensure and discipline vol 95 number 3 2009
message from the chair
State Medical Boards: Developing Solutions to Improve Our Nation’s Health Care
Martin Crane, M.D., Chair, Federation of State Medical Boards of the United States
As the United States engages in a vigorous debate about for State Medical Licensure, or UA. This application health care reform, state medical boards continue to make consists of one primary form common to all states with major strides in developing solutions to improve the qual- state-specific addendums – allowing states to maintain ity and safety of our country’s health care. By tapping into autonomy while gaining the efficiencies associated with a the latest technological advances and data standardization standard electronic application. Centralizing credentials procedures, medical boards are building a robust informa- verification is another important part of improving the li- tional infrastructure that should serve our national health censure process. Since 1996, the FCVS has enabled phy- care system well for years to come. sicians to establish a lifetime portfolio of verified medical credentials that can be forwarded to any medical board Our progress has not been limited to technological ad- or health care entity. I’m pleased to report that significant vancements, as important as those are. The FSMB and its progress is being made in the development of a new, en- membership are also making outstanding progress in de- hanced version of FCVS, with more complete and power- veloping effective public policy and building important re- ful features to streamline the credentialing process. The lationships at the state, national and international levels. newly enhanced FCVS is due to be launched in 2010.
This progress is occurring because of the extremely high Improved license portability has tremendous upside for ev- level of collaboration and creativity happening across the eryone involved: state medical boards, physicians and the country within the state medical board community. Fol- patients we serve. By participating in this national effort, lowing is a brief overview of some of the initiatives current- medical boards are helping address some of the signifi- ly propelling us forward as together we pursue solutions to cant health care issues we now face, including the need to positively impact our nation’s health care. lower costs, provide care to underserved populations and facilitate telemedicine. Improving the Portability of Medical Licensure FSMB as a Data and Information U.S. medical regulators have long been challenged to iden- Resource tify strategies that allow physicians to practice in multiple Since its inception nearly a century ago, the FSMB has states while respecting the autonomy of each jurisdiction. In worked to develop what is today the most comprehensive response, the FSMB and state medical boards are diligently repository of physician licensure and credentialing informa- working to make it easier for physicians to become licensed tion in the United States. The FSMB is currently making a and credentialed in multiple states. I am pleased to report significant investment to enhance its overall technological that the FSMB’s License Portability Project and an initiative capabilities to enable it to provide the highest-quality re- to enhance the Federation Credentials Verification Service search, credentialing and licensure information to a wide (FCVS) are helping move license portability from a con- array of stakeholders. Coupled with initiatives to enhance cept to an actual reality in mainstream medicine. the capabilities of FCVS and the Physician Data Center, these technology upgrades will help position FSMB and A key piece of this progress has been the growing imple- the state medical board community as an important data mentation by medical boards of the Uniform Application and information resource during the implementation of
journal of medical licensure and discipline vol 95 number 3 2009 page 3 health system reform and improved regulatory policies. censees to maintain their competence in the scope of their
daily practice by participating in a continuous professional National Advocacy for State Medical development program that includes directed self-assess- Boards ment, demonstration of cognitive competence and perfor- At this pivotal time in U.S. health care, it is critical the mance in practice. Significant progress has been made in voice of state medical boards be heard in our nation’s capi- identifying and resolving issues and concerns expressed by tal. I’m pleased to announce the FSMB is opening an of- state medical boards and other stakeholders about the draft fice in Washington, D.C., in January 2010 to serve as the recommendations. The FSMB continues its commitment hub of our work with national legislators and policymakers to moving this policy work forward in a thoughtful, care- on behalf of state medical boards. By maintaining an ongo- ful manner and involving all stakeholders who could be ing presence in Washington, the FSMB will be a more ef- impacted by its outcome. fective champion for the needs, goals and successes of our member boards. This enhanced advocacy also will help International Medical Regulation raise national and public awareness and understanding of In addition to contributing to progressive initiatives in the the important work and mission of state medical boards. United States, state medical boards play a key role in the worldwide body of medical regulators – the International In addition to broadening its national legislative advocacy Association of Medical Regulatory Authorities (IAMRA). efforts, the FSMB also has worked to develop an affiliation The FSMB has been the Secretariat of IAMRA since its with the U.S. Uniformed Health Services to explore ways inception and a number of U.S. medical boards are mem- in which the FCVS and the Federation Physician Data bers of the organization. Center could enhance the credentialing needs of various federal health agencies. I am delighted to announce that the 9th conference of IAMRA has been scheduled for Sept. 26-29, 2010, in Public Members and Public Awareness Philadelphia, Pa. IAMRA is partnering with the FSMB, The FSMB recently began developing plans for an initia- the National Board of Medical Examiners and the Edu- tive that will recognize the invaluable role public mem- cational Commission for Foreign Medical Graduates to bers play on state medical boards across the country. This offer an innovative program on best practices in medical effort will include providing stipends for a number of pub- licensure. lic members to attend FSMB Annual Meetings. As part of the initiative, the FSMB Foundation will undertake de- With hundreds of attendees from medical regulatory or- velopment of an educational module to help orient new ganizations around the world, IAMRA conferences are a public members to the duties and responsibilities of pub- truly unique and highly rewarding experience. The 2010 lic members. Recognizing that the biggest constituency conference will include interactive programs on registra- of state medical boards is the public, the FSMB is laying tion and licensure, currency of competence and revali- the groundwork for an ongoing public relations campaign dation/maintenance of licensure, ethical guidance, and to raise public awareness of what state medical boards do, complaints and resolutions. I hope you will be able to par- how they work for the public and the need for medical ticipate. Please visit www.iamra.com for updates. boards to receive adequate resources to carry out their mis- sion of public protection. As you can see, the FSMB and state medical board com- munity are extremely active in a wide variety of initiatives Assuring the Continuing Competence that are positively impacting public protection and improv- of Physicians ing physician practice. Please join us in the year ahead In December, the FSMB Board of Directors accepted for as we continue to participate in health care policymaking dissemination and feedback a draft report developed by the and making major contributions to improving the health FSMB Maintenance of Licensure Advisory Committee care of our nation. recommending various approaches state medical boards could use to assure the public that physician licensees are maintaining their competence to practice medicine. The report from the Special Committee on Maintenance of Licensure recommends state medical boards require li- page 4 journal of medical licensure and discipline vol 95 number 3 2009 message from the president and ceo
CHARTING DYNAMISM IN MEDICAL EDUCATION, LICENSURE AND REGULATION
Humayun J. Chaudhry, D.O., FACP, President and CEO, Federation of State Medical Boards
From Captain John Smith’s 1607 account of the “skillful medical education (GME) positions, and decentraliza- diligence” of a surgeon among the early colonists in Virgin- tion of training sites, removal of regulatory barriers limit- ia, to the story of the union in 1765 of the College of Phila- ing flexible GME training programs, and accountability delphia and the Pennsylvania Hospital to create the nation’s for the public’s health as the driving force for GME,6 it is first medical school, to the sequence of events leading to not certain at press time that any of these changes will be the establishment in 1912 of the Federation of State Medi- included in the health system reform bills currently being cal Boards (FSMB), a spirit of optimism and incremental debated in Washington, D.C. dynamism is discernible in the descriptions of the historians of their day about the evolving role of medical education, Since its formal inception in the last century, GME in the licensure and regulation in the United States.1,2,3 As the first United States has been different than what is offered and decade of this millennium comes to a close, and I begin my available in many parts of the world. Following comple- role to help lead the FSMB, I am struck by how this same tion of an accredited GME residency or fellowship train- energy is alive and well, equally incremental in its dyna- ing program, each physician in the United States is pre- mism but more collaborative, comprehensive and collegial pared to enter into, following medical licensure by a state than before. The FSMB, in fact, stands at the nexus of many medical or osteopathic board, the unsupervised practice of the dynamic changes that are under way in organized of medicine. In the United Kingdom, by contrast, those medicine today and -- by virtue of its role in representing who complete GME may remain under supervision of the 70 state medical and osteopathic boards of the United teaching faculty in a hospital for several years as a “regis- States and its territories, in their efforts to protect the public trar” until they achieve posting as a consultant. The GME through medical licensure and regulation -- has a critical procedures in the United States, consequently, require an role to play in many of these areas. The FSMB’s current additional degree of diligence by state medical boards to mission seeks “continual improvement in the quality, safety comprehensively and thoroughly assess the competency and integrity of health care through the development and and qualifications of physicians seeking medical licensure. promotion of high standards for physician licensure and Recognizing the need to assess more than knowledge ele- practice.”4 That charge places us at the center, if not the ments, both the Accreditation Council on Graduate Med- lead, of many of these efforts. ical Education (ACGME) and the American Osteopathic Association (AOA) recently adopted six core competen- In the area of undergraduate medical education, there cies for every physician that all GME training programs are now 131 accredited M.D.-granting, and 26 accredited in the U.S. should integrate into their curricula: patient D.O.-granting, medical schools in the United States and care, medical knowledge, practice-based learning and more to follow in the decade ahead. The Association of improvement, interpersonal and communication skills, American Medical Colleges’ (AAMC) Center for Work- professionalism and systems-based practice.7 Recogniz- force Studies, like other prominent organizations that have ing that medical education is part of a broad continuum, studied health care workforce needs, has predicted a short- the FSMB, the National Board of Medical Examiners age of 124,000-159,000 physicians by 2025.5 Though such (NBME) and the National Board of Osteopathic Medical bodies as the Council on Graduate Medical Education in Examiners (NBOME) have adopted these same compe- 2007 called for an increase in Medicare-funded graduate tencies (the NBOME frames them within an osteopathic
journal of medical licensure and discipline vol 95 number 3 2009 page 5 context) for assessment in forthcoming updates to their Dentistry of New Jersey, and its primary recommendations, licensing examinations. adopted by the FSMB and the NBME, call for two patient- centered decision points, adoption of a general competen- The Medical College Admissions Test (MCAT), the stan- cies-based schema for exam questions, and the importance dardized, multiple-choice examination that is produced by of including the scientific foundations of medicine in all the AAMC, continues to be required of applicants to almost components of the assessment process.10 These changes all allopathic and osteopathic medical schools in the United will take us several additional years to implement but the States. While the MCAT does a laudable job of assessing an process is well under way. The FSMB has five of its rep- examinee’s problem solving, critical thinking, writing skills resentatives, including myself, serving on the USMLE’s and knowledge of science concepts and principles that are Composite Committee. The Comprehensive Osteopathic felt to be prerequisite to the study of medicine, for only the Medical Licensing Examination (COMLEX), produced fifth time since its inception in 1928 the exam will undergo by the NBOME, has also recently undergone a compre- a review and evaluation of all of its elements in a process hensive review and is undertaking similar changes. called the Fifth Comprehensive Review of the MCAT Exam (MR5). While periodic reviews of examinations are In 2004, the FSMB’s House of Delegates agreed on a pol- recognized as a best practice, the 21-member committee icy statement that “state medical boards have a responsi- appointed by the AAMC to conduct this review, chaired by bility to the public to ensure the ongoing competence of Steven Gabbe, M.D., of the Ohio State University College physicians seeking relicensure.” The term “relicensure” is of Medicine, will be developing plans to “solicit broad input better known as “license renewal” to differentiate it from about the current and future tests, gather relevant data and physician re-entry, an area the FSMB has also looked at. research, and regularly communicate” their progress with Since 2004, several committees, task forces, surveys and the aim to produce a new test “no earlier than 2014” that working groups have included thoughtful comments by keeps pace “with advances in medical education and prac- representatives of state medical boards and other stake- tice.”8 An annual meeting of the AAMC, the NBME and holders representing a wide array of individuals, includ- the FSMB is only one way in which the FSMB is staying ing practicing physicians and representatives of organized abreast of such important changes. medicine. They have comprehensively reviewed and eval- uated possible options for state medical and osteopathic The United States Medical Licensing Examination boards for a process that has come to be known as “main- (USMLE), created in 1991 through a partnership between tenance of licensure” and which a more recent Advisory the FSMB and the NBME, is currently administered in Group established by the FSMB has termed “continued three “steps” and four “events” and effectively used by state competence of licensed physicians.” The Advisory Group, medical boards to make decisions at the time of entry into whose members were appointed by Martin Crane, M.D., supervised practice and at the time of initial medical li- chair of the FSMB’s Board, includes a wide representa- censure. The examination also serves additional purposes, tion of individuals from various organizations and was in its utility for medical school deans in gauging academic chaired by J. Lee Dockery, M.D., a past member of the progress during undergraduate medical education and in Florida Board of Medicine. The Advisory Group’s recom- its value in helping residency program directors select can- mendations were reviewed at the December meeting of didates for GME residency training positions. From 2004 the FSMB’s Board of Directors and accepted for dissemi- to 2009, the USMLE’s Composite Committee, a Planning nation to state medical and osteopathic boards for discus- Task Force and a Committee to Evaluate the USMLE Pro- sion and consideration at the FSMB’s House of Delegates gram (CEUP) thoughtfully reviewed the exam’s purpose, meeting on April 24, 2010, in Chicago. structure and format. Recognizing that the “first priority of the USMLE” is “to assure licensing authorities that candi- The FSMB has actively been involved in promoting the dates possess the capacity for safe and effective patient care principles and practices of medical licensure and regula- in both supervised and unsupervised settings,” the com- tion not only in the United States and its territories but also mittee agreed following much deliberation and input from abroad, helping establish the International Association of multiple stakeholders that the USMLE exam “must con- Medical Regulatory Authorities (IAMRA), for which the tinue to reflect evolving national consensus of what it takes FSMB has served as its Secretariat since the group’s in- to be a physician.”9 The committee was chaired by Alfred ception in 2000. Of course, the international community F. Tallia, M.D., M.P.H., of the University of Medicine and has a long and rich history in the advancement of medi- page 6 journal of medical licensure and discipline vol 95 number 3 2009 cine and medical regulation: medical licensure as an in- Change is even afoot with this medical journal, published stitution first began in Europe during the Middle Ages; continuously since 1915, which will, beginning in Janu- Frederick II, the German emperor who had been elected ary 2010, be renamed the Journal of Medical Regulation. king of Sicily, wrote the first medical practice law;11 and On a more personal level, the FSMB is also delighted Ibn Sina (better known by his Latinized name, Avicenna) that Regina Benjamin, M.D., immediate past chair of the wrote a Canon of Medicine in 1025 that was a standard FSMB’s Board of Directors, was appointed U.S. Surgeon medical textbook in much of the world for more than 700 General in 2009 following her nomination by President years. There is much to be learned through international Obama. exchanges – both among and between developed nations and between developed nations and developing nations – In the months and years ahead, more details will emerge through best practices and shared experiences. The formal for state medical and osteopathic boards, medical students, purpose of IAMRA, which currently has members from medical residents, practicing physicians and the public multiple medical regulatory authorities and jurisdictions about all of the changes elucidated here as allopathic based in 31 countries, is “to support medical regulatory and osteopathic medical schools increase in number and authorities worldwide in protecting the public interest by increase their class sizes, the MCAT undergoes a com- promoting high standards for physician education, licen- prehensive revision, the USMLE and COMLEX undergo sure and regulation, and facilitating the ongoing exchange comprehensive revisions, “continued competence of li- 12 of information among medical regulatory authorities.” censed physicians” moves forward, the FSMB’s vital prod- The Management Committee of IAMRA is chaired by ucts and services (e.g., FCVS, UA) are further enhanced Dr. John Hillery, former president of the Medical Council and improved as part of a comprehensive concerted ef- of Ireland, and I serve as secretary. The IAMRA leader- fort and, last but not least, health system reform, possibly, ship is pleased to announce the organization will hold its is passed by Congress and signed into law by President 9th International Conference from Sept. 26-29, 2010, in Obama, a change agent himself. While the FSMB has Philadelphia, Pa., the first time it has held its meeting in many members, institutional and individual, our success the United States. The meeting is being co-hosted by the derives from everyone’s effort and we are committed to FSMB, the NBME and the Educational Commission for our members’ mandate to protect the public through ef- Foreign Medical Graduates. fective, streamlined, evidence-based and quality-focused medical licensure and regulation. Closer to home, I have discovered that the two biggest strengths of the FSMB are its staff and the state medical FSMB has become a trusted data repository, maintaining boards we serve. The dedication and commitment I have vital information about our nation’s physician workforce. seen among these linked groups have been inspiring and As we enter a new decade of medical regulation in the energizing. As we approach a century in operation, I am United States, the FSMB has committed itself to evolving also impressed with the FSMB’s Board of Directors and its data process to a completely new level – incorporating its genuine interest in doing everything possible to protect new technologies and recognizing the emergence of elec- the public, our primary charge; to assist our state member tronic information as a vital priority for our organization. boards in their activities and advocacy efforts (a charge that will be facilitated by the opening of the FSMB’s new A year after the FSMB was founded, The New York Times office in Washington, D.C., in January 2010); and to pro- said, “Recognition of the fact that the treatment of dis- vide products and services to our state member boards ease is a public rather than a private concern is becoming that streamline and facilitate medical licensure and li- steadily clearer, day by day, and the Federation’s privilege cense portability, including the: will be to emphasize and extend this truth.”13 I am hon- ored and humbled to have been selected by the FSMB’s • Federation Credentials Verification Service, or FCVS, Board members to serve in my position and look forward which has more than 100,000 physician profiles and to working with them, our state medical and osteopathic provides primary source verification for licensure and boards, our staff, our many partner organizations, govern- storage of a physician’s core credentials; and mental agencies and the public to emphasize and extend • Uniform Application for State Medical Licensure, or this same truth. UA, which facilitates license portability and has al- ready been adopted by 22 states thus far. Happy New Year and Happy New Decade.
journal of medical licensure and discipline vol 95 number 3 2009 page 7 1. Arber E. ed. Works 1608-1631. Birmingham, England. 1884: p. 391-401, 497-516. 2. Stevenson LG. The Birthday of Medical Education in America. Journal of the History of Medicine and Allied Sciences. 1965. 20:p. 95-96. 3. Derbyshire RC. Medical Licensure and Discipline in the United States. Johns Hopkins Press: Baltimore. 1969. P. 46-60. 4. www.fsmb.org/mission.html. Accessed December 2, 2009. 5. Mann S. AAMC Reporter. November, 2009. 18(13):p. 1,4. 6. Enhancing Flexibility in Graduate Medical Educa- tion. 19th Report. COGME. 2007. P. 7-18. 7. http://www.acgme.org/outcome/comp/GeneralCom- petenciesStandards21307.pdf. Accessed December 7, 2009. 8. MR5: 5th Comprehensive Review of the MCAT Exam. AAMC. 2009. P. 1 9. http://www.ama-assn.org/ama1/pub/upload/mm/44/ sms-a09-review-usmle.pdf. Accessed December 2, 2009. 10. http://www.usmle.org/General_Information/CRU/ CRU-2009-06-19.html. Accessed December 3, 2009. 11. Derbyshire RC. Medical Licensure and Discipline in the United States. Johns Hopkins Press: Baltimore. 1969. P. 1. 12. http://www.iamra.com/about.asp. Accessed Decem- ber 2, 2009. 13. Derbyshire RC. Medical Licensure and Discipline in the United States. Johns Hopkins Press: Baltimore. 1969. P. 51.
page 8 journal of medical licensure and discipline vol 95 number 3 2009 Legal Issues Regarding Unlicensed Health Care Practices and Nutritional Supplements
Bruce W. McIntyre, J.D., Alexandra O. Binek, Stephanie S. DelPonte, Eric Greenberg
ABSTRACT health care. The laws passed not only protect consum- Complementary and Alternative Medicine (CAM) has ers’ choice to use CAM, but also outline standards and increasingly become a popular option for many Ameri- rules applicable to unlicensed health care practitioners. cans. A 2007 study showed that a majority of Americans In 1994, Congress passed the Dietary Supplement Health used at least one form of CAM during that year. In and Education Act (DSHEA). The result of DSHEA was response, many states opted to license practices that had an environment in which nutritional and dietary supple- previously been unlicensed, such as acupuncture, mas- ments became widely available to the public and, as a sage therapy and naturopathy. In addition, some states result, the supplement industry flourished. This act also passed legislation to regulate and discipline unlicensed led to decreased public protection by the U.S. Food and CAM practitioners. Minnesota spearheaded these efforts Drug Administration. The act impaired the FDA’s ability in 1999 by passing a law that set guidelines and standards to regulate supplements because it allowed the manufac- for unlicensed health care practitioners, while protect- turers to determine the safety of the supplement before it is ing the public’s right to choose to use CAM. California, marketed. The FDA became responsible for taking action Rhode Island, Louisiana, New Mexico and Puerto Rico against an unsafe supplement only after it is on the market. all followed with similar legislation. The FDA’s post-marketing responsibilities include safety (voluntary adverse event reporting) and labeling. The Fed- The federal government’s attempts at regulation of CAM eral Trade Commission regulates dietary supplement ad- have been varied. In 1994, Congress passed the Dietary vertising. Consequently, in 2006, the Dietary Supplement Supplemental Health and Education Act (DSHEA) as a and Nonprescription Drug Consumer Protection Act result of intense lobbying by health food manufacturers (DSNDCPA) was passed into law. This law specifically ad- and the public. While it limited the claims manu- dressed the serious adverse-event reporting requirements facturers could make on labels, the law also severely for nonprescription drugs and dietary supplements. curtailed the FDA’s ability to regulate nutritional and dietary supplements. Partially due to the adverse effects STATE RESPONSES TO UNLICENSED HEALTH of DSHEA, President Bush signed the Dietary Supple- CARE ment and Nonprescription Drug Consumer Protection The use of CAM is widespread throughout the United Act (DSNDCPA) into law on Dec. 22, 2006. States. In 1990 there were approximately 425 million visits to practitioners of CAM.1 Since then the number of peo- INTRODUCTION ple using some form of CAM has steadily continued to in- Many Americans have increasingly turned to the field of crease. The revenue from professional services for alterna- Complementary and Alternative Medicine (CAM). This tive medicine totaled $22.6 billion in 1990 and increased field, unlike conventional medicine, is largely unregulated to $32.7 billion in 1997, three years after DSHEA was and uses techniques and treatments that are not typically enacted.2 Furthermore, between 1990 and 1997, the an- used in U.S. medical schools or hospitals. However, five nual visits to primary care physicians in the United States states and one territory, Minnesota, California, Rhode Is- remained steady at approximately 385 million. However, land, Louisiana, New Mexico and Puerto Rico recently visits to CAM practitioners totaled approximately 427 mil- 2 passed legislation that attempts to regulate unlicensed lion in 1990 and rose to more than 629 million in 1997.
journal of medical licensure and discipline vol 95 number 3 2009 page 9 In addition, a large number of Americans also use supple- monly defined as an “alternative medical system” where ments. In one study, sales of nutritional supplements in the purpose is “that there is a healing power in the body 1994 totaled $8.8 billion; and in 2000 that amount nearly that establishes, maintains, and restores health.”5 Tennes- doubled to $15.7 billion.3 The sale of supplements contin- see law states that the practice of naturopathy is a Class B 4 ued to escalate, and totaled $18.8 billion in 2003. misdemeanor, and in South Carolina, one could be fined 24 or imprisoned for up to one year. According to a study by the National Center for Com- plementary and Alternative Medicine, through the U.S. A combination of public health concerns about the use Department of Health and Human Services, about 38.3 of CAM and the activities of large corporations, which percent of adults used some form of CAM one or more have targeted the public for monetary gain, have led to times in 2007.5 In the study, CAM was defined as includ- legal actions. An example is the Mannatech case. Man- ing alternative medical systems, such as acupuncture and natech, a company that produces and sells supplements, naturopathy; biologically based therapies, such as folk made claims that its products had proven health benefits. medicine and diet-based therapies; manipulative body- Manntech is invested in the field of glycobiology, which is based therapies, such as chiropractic care and massage; the study of “glycan structure, metabolism, and function and mind-body therapies, such as meditation and hypno- by developing and applying rigorous scientific tools and sis. The research found that though CAM usage was fairly standards.”25 One type of glyconutrient that the company evenly spread among the demographic groups, “CAM use was marketing claimed to “cure, mitigate, treat or prevent was more prevalent among women, adults aged 30-69, disease.”25 However, Samuel Caster, one of the founders adults with higher levels of education, adults who were of Mannatech, acknowledged in evidence presented to not poor, adults living in the West, former smokers, and the District Court of Travis County, Texas, “that the prod- adults who were hospitalized in the last year.”5 Further- ucts do not cure any diseases.”26 In the petition, the At- more, the use of CAM was more prevalent when the cost torney General of Texas cited the Texas Food, Drug and of conventional care was an issue, though many people Cosmetic Act, which states that “claims cannot be made who used CAM did so in addition to conventional care. that dietary supplements are intended to cure, mitigate, These statistics are very similar to results found in a 2002 treat or prevent disease.”26 Mannatech settled the lawsuit 27 study by the National Center for Complementary and for $11.25 million. Alternative Medicine, showing that the use of CAM has remained fairly consistent.5 Although the study included Aside from large companies targeting the general public both licensed and unlicensed forms of CAM, the informa- with outlandish promises, Rhode Island has two impor- tion is still relevant to show the rising popularity of unli- tant cases in which legal action was taken against two un- censed health care. licensed health care practitioners. Prior to Rhode Island passing its unlicensed health care law, certain naturo- Some states have responded to CAM’s popularity by pass- pathic practitioners sought legislation that would license ing laws to regulate unlicensed health care in order to pro- them and grant their industry legitimacy. However, there tect the public. Prior to 1999, limited legislation existed were other naturopathic practitioners who were strongly to regulate unlicensed health care. Minnesota was one opposed to this and preferred to stay unlicensed and un- of the first to enact such legislation, passing a law titled regulated. A committee was commissioned to consider Minnesota Freedom of Access to Complementary and Al- testimony from both sides and resolve the matter. An is- ternative Health Care Practitioners.6 It has since become sue that was subsequently raised was public safety, as the a “model” act and other states and territories that have ad- training of naturopaths was found to be inconsistent and opted similar legislation include California, Rhode Island, informal. However, health officials had few resources to Louisiana, New Mexico and Puerto Rico.7-10 In addition, regulate these unlicensed health care practices. Rhode Is- similar legislation has been considered by state legislatures land opted for a compromise and the legislature passed in Arizona, Georgia, Hawaii, Idaho, Illinois, Iowa, Maine, the Unlicensed Health Care Practices Act. The Act regu- Montana, Nevada, North Carolina, Ohio, Texas, Virgin- lates certain CAM practices through the Department of ia, Washington and Wisconsin.11-23 However, a few states Health, but does not offer licensure. Representative Ar- have taken a different approach by making certain types of thur Corvese, who helped guide legislation through the CAM illegal. Tennessee and South Carolina, for example, enactment process in Rhode Island, said: “The state has have outlawed the practice of naturopathy, which is com- a responsibility to protect the safety of its citizens. With page 10 journal of medical licensure and discipline vol 95 number 3 2009 the rise in popularity of alternative medical therapies, this Medical Licensure and Discipline (BMLD) investigated legislation is a necessary first step towards achieving that John Curran’s practices and contacted the Food and Drug 28 protection.” Administration’s Office of Criminal Investigations (FDA- OCI). The BMLD worked with the FDA-OCI, Internal The Rhode Island Unlicensed Health Care Practices Act Revenue Service, Office of the U.S. Postal Inspector, and was enacted in 2003 and not only established guidelines and U.S. Attorney for the District of Rhode Island in a joint state standards for unlicensed health care practitioners, but also and federal investigation in the matter of John Curran. protected the public’s right to choose to use CAM. Rhode Island’s Unlicensed Health Care Practices Act, RIGL §23- John Curran, a self-proclaimed naturopath and medical 74, includes, “but is not limited to, (i) acupressure; (ii) Alex- doctor, used certain CAM diagnosis and treatments in or- ander technique; (iii) aroma therapy; (iv) ayurveda; (v) cra- der to bilk money out of his patients.29 John Curran posed nial sacral therapy; (vi) crystal therapy; (vii) detoxification as a medical doctor to gain his patients’ trust. He had fake practices and therapies; (viii) energetic healing; (ix) rolfing; diplomas and certificates on his office walls from multiple (x) Gerson therapy and colostrum therapy; (xi) therapeutic prestigious medical schools, such as Harvard University, touch; (xii) herbology or herbalism; (xiii) polarity therapy; Brown University and Duke University, as well as a diploma (xiv) homeopathy; (xv) nondiagnostic iridology; (xvi) body from St. Luke School of Medicine, an unaccredited medi- work; (xvii) reiki; (xviii) mind-body healing practices; (ixx) cal school that he never attended.30 Curran also referred to naturopathy; and (xx) Qi Gong energy healing ... Unli- himself as an M.D. and a Ph.D., using those titles on his censed health care practices do not include surgery, x-ray nametag, office door, business cards, prescription pads, and 30 radiation, prescribing, administering or dispensing legend pamphlets -- though he had never earned either title. drugs or controlled substances, practices that invade the hu- man body by puncture of the skin, setting fractures ... [and] When patients came to see Curran he would first perform a the manipulation ... of joints or the spine.”9 Unlicensed $950 full-body exam. Parts of this exam included such tech- health care practitioners may not provide a medical diagno- niques as live blood analysis, which state health regulators sis or advise clients to disregard or discontinue the medical and federal authorities had previously told him he was not 9 treatment of their primary care doctor. permitted to perform. He used these “test results” to inform his patients that they had some form of disease or abnor- 29 Furthermore, this law provides that clients of these unli- mality of the blood, including parasites and “pre-cancer.” censed health care practitioners must be presented with a Curran told the majority of his patients that they had “live patient’s bill of rights that must also be posted in the prac- parasites, double-headed parasites, worms, holes, big eggs, titioner’s office. A patient is entitled to know, “the degrees, green-tinted cells, red crystals, dying cells, dormant cells, 29 training, experience, or other qualifications of the practitio- severely reduced blood cells, and/or no white blood cells.” ner regarding the unlicensed health care being provided.” He also purported to diagnose deficient body functions or The notice must include “the following statement in bold immune systems, fungus of the liver, defective lungs and print: The state of Rhode Island has not adopted any edu- kidneys, or organs in distress.”29 An expert witness in the fed- cational and training standards for unlicensed health care eral court trial testified that the presence of parasites in the practitioners. This statement of credentials is for informa- blood is extremely rare and Curran’s diagnosis of such para- tion purposes only; … a brief summary, in plain language, sites in two thirds of his patients is statistically impossible. of the theoretical approach used by the practitioner in pro- Occasionally he would also tell his patients that they had 29 viding services to clients; … notice that the client has a life-threatening diseases such as cancer. right to complete and current information concerning the practitioner’s assessment and recommended service that is After frightening his patients with these diagnoses, Curran to be provided, including the expected duration of the ser- would prescribe “medically frivolous remedies designed for 9 vice to be provided.” defendant’s financial benefit rather than his clients’ well- being.”29 He would prescribe such remedies as the “green The Unlicensed Health Care Act in Rhode Island has drink,” which was a commercially produced liquid that been used to protect the public in two important cases. he told his patients he invented and made, and “specially In both cases the health of the public was at risk due to energized water,” which was distilled water he ran through the false claims that were procured. In the first case, the a blender.29 Curran would then charge his patients exorbi- 29 Rhode Island Department of Health and the Board of tantly high prices for these products.
journal of medical licensure and discipline vol 95 number 3 2009 page 11 The director of Health deemed John Curran’s practices Another acupuncturist, Dr. Ming Li, also concluded that to be an immediate threat to the public health and issued “with respect to a patient with liver cancer, an acupunctur- a compliance order suspending his right to practice unli- ist would provide support treatment to the person but would 31 censed health care. An administrative hearing was conduct- not attempt to cure the underlying disease.” ed in which John Curran was called as an adverse witness. After approximately two hours of testimony, which included The final decision by Justice Thompson in the Superior the time, place, manner and methods in which he procured Court of Rhode Island agreed with the Rhode Island De- his phony credentials, he consented to the terms of the im- partment of Health and with the permanent revocation mediate compliance order that stopped his practices. The of Dr. Mai’s license. The false advertising that was used case then moved to federal court, where he was charged by Dr. Mai was deemed unethical and false. He claimed 29 with money laundering and wire fraud. that he could cure diseases but, after charging patients for many expensive treatments and/or visits, he was never The court used Curran’s own records of patient purchas- able to do so. The Superior Court upheld the revoca- es and calculated that between 2003-2004 Curran treated tion of his license to practice acupuncture and engage in 340 patients for a profit of approximately $1.4 million in herbology and the sale of nutritional supplements. The fees for his “services.” The U.S. Court of Appeals for the court ruled that unlicensed health care practitioners can First Circuit held that RIGL §23-74-1(a) prohibited Cur- “educate and explain the uses of those products; however, ran from “holding himself out as a licensed physician and education and explanation could not extend to medical 29 32 from diagnosing disease or treating it.” The U.S. District diagnosis or treatment.” Court for the District of Rhode Island convicted Curran on multiple counts of wire fraud and money laundering, saying Apart from public health concerns like the cases in Rhode that “Curran was a menace who took advantage of [the pa- Island, courts in the state of New York have found civil tients’] worst fears and preyed on them for reasons of greed liability in cases dealing with CAM. The case of Charell as he undertook a scam of the worst kind.”29 Curran was v. Gonzalez was heard by the New York Supreme Court sentenced to 150 months in prison as well as having to pay in 1998. Julianne Charell was suffering from cancer. She 29 restitution fees totaling $1,425,061.62. refused the treatment recommended by her oncologist and instead opted to receive alternative medical care from In another case, Dr. Long V. Mai, a licensed acupunctur- Nicholas Gonzalez. Charell sued Gonzalez for malprac- ist, was concurrently practicing herbology and selling herbs, tice and the jury found Gonzalez civilly liable. The jury which is an unlicensed health care practice in Rhode Is- awarded Charell more than $4 million in compensatory land.9 Rhode Island bestows the honorary title of Doctor damages and $150,000 in punitive damages. On appeal, to licensed acupuncturists even though few, if any, have the court overturned the punitive damage award but up- matriculated through a doctoral level training program. Dr. held the $4 million in compensatory damages. The appeal Mai had advertised in Vietnamese newspapers presenting also found that by foregoing conventional medicine and not only a Rhode Island Department of Health license for choosing alternative medicine, even without the complete 33 acupuncture but also giving the impression that he could risk information, Charell had assumed some of the risk. treat more serious diseases, such as cancer. In this case, there were multiple incidents where patients were charged FEDERAL LEGISLATION FOR NUTRITIONAL thousands of dollars for supplements along with visits to the AND DIETARY SUPPLEMENTS practitioner’s office in order to treat diseases such as liver In 1994, noting that many Americans regularly consume 31 34 cancer and paralysis. dietary supplements, Congress passed the DSHEA. The Act praised the healthful benefits of nutritional and dietary Dr. Tierney Tully, an expert witness and a doctor of acu- supplements while also stating that “safety problems with puncture and Oriental medicine, testified about the proper the supplements are relatively rare.”34 The Act further method of diagnosis, including a four-step method. It was stated that “the Federal Government should not take any clear in the testimony from two of Dr. Mai’s former patients actions to impose unreasonable regulatory barriers limit- that Dr. Mai did not complete all of the steps.31 Further- ing or slowing the flow of safe products and accurate infor- more, in regards to curing diseases, specifically liver cancer, mation to consumers.”34 Thus, the overall purpose of the Dr. Tully testified that “Acupuncture and Oriental Medicine Act was to protect the consumer’s right of access to dietary 31 do not make any claims to cure this disease [liver cancer].” supplements while limiting FDA’s ability to regulate. In page 12 journal of medical licensure and discipline vol 95 number 3 2009 one regard DSHEA accomplished precisely what it set out cinoma.39 Under DSHEA, however, this supplement was to do: The deregulated environment that followed permit- not tested before it was made widely available in the United ted the nutritional supplement market to expand rapidly States and was only under investigation after several people and provided wide access to consumers. In particular, un- who used the supplement filed complaints.40 Even after licensed health care providers could now suggest and sell complaints were made and the FDA issued a warning, the 40 more nutritional supplements to patients, at great profit, to substance was still sold on the Internet worldwide. complement their alternative health care practices. Due somewhat to the difficulty of banning ephedra, Con- Unfortunately, DSHEA also had negative consequences. gress enacted the Dietary Supplement and Nonprescrip- First, manufacturers were no longer required to submit to tion Drug Consumer Protection Act (DSNDCPA) in testing prior to marketing their product. DSHEA also de- 2006. This Act requires manufacturers to report “serious fined “dietary supplement” broadly. It was defined as “a adverse effects” of supplements to consumers.41 Serious product (other than tobacco) intended to supplement the adverse effects are defined by the DSNDCPA as: “(A) i) diet that bears or contains one or more of the following death; (ii) a life-threatening experience; (iii) inpatient dietary ingredients: (a) a vitamin, (b) a mineral, (c) an herb hospitalization; (iv) a persistent or significant disability or or other botanical, (d) an amino acid, (e) a dietary supple- incapacity; or (v) a congenital anomaly or birth defect; ment used by man to supplement the diet by increasing the or (B) requires, based on reasonable medical judgment, total dietary intake or, a concentrate, metabolite, constitu- a medical or surgical intervention to prevent an outcome ent, extract, or combination of any ingredient described in described under subparagraph A.”41 Thus, where previ- clause (A), (B), (C), (D), or (E).”34 Due to the broad defini- ously manufacturers of supplements were under no ob- tion within the law, the producers of dietary supplements ligation to furnish such information, under DSNDCPA 41 did not need to demonstrate prior to marketing a product they are required to do so. 35 that it is beneficial or effective. Prior to the enactment of DSNDCPA, Pharmavite LLC, This Act also made it harder to ban potentially harmful the company that makes Nature Made Vitamins, praised supplements from the public. The most prevalent ex- the proposed bill by stating it would “validate the dietary ample was when the government attempted to ban ephe- supplement industry’s strong safety record.”42 The presi- dra. A review in the New England Journal of Medicine by dent of the Consumer Healthcare Products Association, 36 Haller and Benowitz examines the effects of ephedra. Linda Suydam, noted that “this legislation… will ensure The conclusion was that, of the symptoms experienced the FDA has the tools it needs to fulfill its public health by the 140 participants, 31 percent of the symptoms were mission to more aggressively monitor the medicines and 43 deemed “definitely or probably” related to ephedra, an- nutritional supplements it regulates.” other 31 percent “possibly related” to ephedra, and 17 percent were deemed “unrelated.”36 Of the 31 percent of The DSNDCPA was put to use by the FDA against Ma- symptoms considered “definitely or probably” related to trixx Initiatives, Inc., and its Zicam nasal products. Ma- ephedra, the majority of the complaints were related to trix Initiatives discovered the possible side effect of loss cardiovascular symptoms that included hypertension and of smell and taste from more than 800 reports. Under the even cardiac arrest.36 Even with a review that showed that DSNDCPA, Matrixx Initiatives had a legal obligation to there were harmful effects from this substance, the FDA’s report the possible side effect to the FDA once the compa- powers were limited and, although ephedra was ultimate- ny had become aware of it, which they failed to do. After ly banned by the federal government, it was difficult to get learning about these long-lasting and possibly permanent this substance off the market. side effects, Matrixx Initiatives also was required to file a new drug application listing the side effects, which the Similar to ephedra, the Chinese herb Aristolochia fangchi company also neglected to do. The FDA advised consum- or A. fangchi had been banned in many European coun- ers against using Zicam nasal products on June 13, 2009, tries.37 In Europe, this substance had been used for weight because of possible side effects involving loss of smell and loss, but was thought to cause severe kidney damage in taste in some consumers. Three days later, the FDA issued some patients.38 Further research published in the New a warning letter to Matrixx Initiatives stating that Zicam England Journal of Medicine showed the link between this created a serious risk to consumers. Matrixx Initiatives has 44 same Chinese herb and cancer, specifically urothelial car- since recalled its Zicam nasal products.
journal of medical licensure and discipline vol 95 number 3 2009 page 13 CONCLUSION 8. Health Freedom Laws Passed. National Health Free- With the rise in popularity of CAM, some companies and dom Coalition. Website. http://www.nationalhealth- individuals have attempted to take advantage of medi- freedom.org/InfoCenter/laws_passed.html. Accessed cally compromised patients in order to profit through false July 9, 2009. claims. By using laws such as the Unlicensed Health Care 9. RIGL §23-74 (2006 Pocket Supplement). Practices Act in Rhode Island, state health regulators have 10. 2007 Puerto Rico Laws Act 210 (S.B. 1784). been able to protect the public from false health claims 11. House Bill 1040. Georgia General Assembly. Website. and criminal behavior. Since Minnesota began this effort http://www.legis.st ate.ga.us/legis/2003_04/fulltext/ in 1999, the few states that have enacted such legislation hb1040.htm. Accessed July 9 2009. now have tools to protect the public and provide access to 12. A Bill for an Act. The Senate: Twenty-fourth Legisla- CAM in a safer, regulated environment. ture, 2007: State of Hawaii. January 19, 2007. www. capitol.hawaii.gov/session2008/bills/SB739_.pdf. Ac- AUTHOR AFFILIATIONS cessed July 9, 2009. Bruce W. McIntyre, J.D., Deputy Chief Legal Counsel, 13. Iowa Access to Wellness Act. http://www.iowahealth- Rhode Island Department of Health. The following au- freedom.org/files/IAWA3_11_08.pdf. Accessed July 9, thors are interns working for the Rhode Island Department 2009. of Health, Division of Legal Services: Alexandra O. Binek, 14. 95th General Assembly: State of Illinois: 2007 and candidate for a bachelor of Science degree in 2010 from 2008: HB3389. Illinois General Assembly. February Ithaca College; Stephanie S. DelPonte, candidate for a 26, 2007. Website. http://www.ilga.gov/legislation/full- bachelor of Arts degree in 2010 from Mount Holyoke Col- text.asp?GAID=9&SessionID=51&GA=95&DocTyp lege; and Eric Greenberg, second-year student, Suffolk eID=HB&DocNum=3389&LegID=32253&SpecSes Law School. s=&Session=. Accessed July 9, 2009. 15. Gerry, P. MAINE: NHF Board Member, Pamela REFERENCES Gerry Announcement on Maine Health Freedom 1. Astin, J.A., Why patients use alternative medicine: Re- Bill. The National Health Federation. Website. April sults of a national study JAMA 1998; 279(19) 1548- 1, 2007. http://www.thenhf.com/government_affairs_ 1553 state_47.html. Accessed July 9, 2009. 2. Eisenberg, D.M., Davis, R.B., Ettner, S.L., et al. 16. Diane Miller, Director of Law and Public Policy for Trends in Alternative Medicine Use in the United NHFC, reports on the latest news in Health Freedom. States, 1990-1997: Results of a follow-up National sur- National Health Freedom Coalition. Website. http:// vey. JAMA 1998; 280(18): 1569-1575. www.nationalhealthfreedom.org/CoalitionNewslet- 3. Bardia, A., Nisly, N.L., Zimmerman, B., et al. Use of ter/Mar09eLetter/Mar09eLetter.html. Accessed July herbs among adults based on evidence-based indica- 9, 2009. tions: Findings from the National Health Interview 17. Senate Bill No. 432 – Senator Schneider. www.leg. Survey. Mayo Clinic. May 2007; 82(5): 561-566. state.nv.us/74th/Bills/SB/SB432_EN.pdf. Accessed 4. Radimer, K., Bindewald, B., Hughes, J., et al. Dietary July 9, 2009. supplement use by US adults: Data from the National 18. Purpose. Citizens for Healthcare Freedom. Website. Health and Nutrition Examination Survey, 1999-2000. http://www.citizensforhealthcarefreedom.org/. Accessed American Journal of Epidemiology. Vol 160, 4, 2004. July 9, 2009. 5. Barnes, P.M., Bloom, B., Nahin, R.L., Complemen- 19. Advocates for Health Freedom in Ohio. Ohio Health tary and Alternative Medicine website. December Sunshine Freedom Coalition. Website. http://www. 10, 2008. Website. http://nccam.nih.gov/news/cam- ohiohealthfreedom.com/. Accessed July 9, 2009. stats/2007/camsurvey_fs1.htm Accessed July 8, 2009. 20. Texas Health Freedom Coalition. Website. http://tex- 6. Minnesota Statues 2007, Chapter 146A. Comple- ashealthfreedom.com/. Accessed July 9, 2009. mentary and Alternative Health Care Practices. 21. Read Bill SB 6886. Health Freedom Washington. Minnesota Office of the Revisor of Statues. Web- Website. http://www.healthfreedomwa.org/OurBills. site: https://www.revisor.leg.state.mn.us/bin/getpub. htm. Accessed July 9, 2009. php?pubtype=STAT_CHAP&year=current&chapter 22. The Solution. Wisconsin Health Freedom Coalition. =146A. Accessed July 8, 2009 Website. http://www.wihfc.com/wisconsin_health_ 7. 2009 New Mexico Laws Ch. 141 (H.B. 664) freedom_coalition.htm. Accessed July 9, 2009. page 14 journal of medical licensure and discipline vol 95 number 3 2009 23. Montana Health Freedom. Business League for Body- 20(4): 586-590. http://www.pubmedcentral.nih.gov/arti- work and Massage Therapy. March 13, 2009. Website. clerender.fcgi?artid=2504026. Accessed July 22, 2009. http://www.montanahealthfreedom.org/. Accessed July 39. Nortier, J. L., Martinez, M.M., Schmeiser, H.H., et 9, 2009. al. Urothelial Carcinoma associated with the use of 24. Overview of Naturopathic Regulation. Colorado De- a Chinese herb (Aristolochia Fangghi). New England partment of Regulatory Agencies. NaturoWatch. Oc- Journal of Medicine. 2000; 342: 1686-92. tober 14, 2005. Website. http://www.naturowatch.org/ 40. Grollman, A., Dietary Supplements, October licensure/laws.shtml. Accessed July 8, 2009. 28, 2003. website. http://commerce.senate. 25. Schnaar, R.L., Freeze, H.H., A “Glyconutrient Sham”. gov/public/index.cfm?FuseAction=Hearings. Glycobiology. 2008; 18: 652-57. Testimony&Hearing_ID=ba96353a-bef8-4df0-8881- 26. Attorney General of Texas Plaintiffs Original Petition. 3b168f910af8&Witness_ID=acd71a37-5121-448f- July 5, 2007. http://www.oag.state.tx.us/newspubs/ ad65-1cc9a0fe7cd0. Accessed July 22, 2009. releases/2007/070507mannatech.pdf. Accessed July 41. PL 109-462, 2006 S 3546. 21, 2009 42. Pharmavite Praises U.S. Congress for Ground-Break- 27. Mannatech Settles Law Suit. Dallas Business Journal. ing Enactment of the Dietary Supplement and March 20, 2009. Website. http://dallas.bizjournals. Nonprescription Drug Consumer Protection Act. com/dallas/stories/2008/03/17/daily38.html. Accessed The Free Library. Website. www.thefreelibrary.com/ July 21, 2009. Pharmavite+Praises+U.S.+Congress+for+Ground- 28. The General Assembly. House moves to regulate alter- Breaking+Enactment+of+the…-a0155785871. Ac- native health care practices. The Legislative Press and cessed July 13, 2009. Public Information Bureau. Website: http://www.rilin. 43. 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journal of medical licensure and discipline vol 95 number 3 2009 page 15 THE ROLE OF STATE MEDICAL BOARDS IN REGULATING PHYSICIAN PARTICIPATION IN EXECUTIONS
Ty Alper
ABSTRACT tributed to an increased call for the involvement in execu- The recent increase in calls for physician participation in tions of trained medical professionals, namely physicians. lethal injection executions is likely to place a spotlight on state medical boards, the only entities empowered to dis- Indeed, lawyers for death row inmates routinely argue that cipline doctors for ethical violations. This article begins skilled anesthetic-monitoring is an essential component of by recounting the history of physician participation in a constitutional three-drug execution protocol, particular- lethal injection executions, as well as the opposition of ly where one of the three drugs is a neuromuscular block- most medical professional organizations to the practice. ing agent that paralyzes the condemned inmate during the The current state of the law suggests, however, that the execution. Doctors are also necessary when peripheral ve- role of state medical boards is quite circumscribed, at nous access is too difficult to achieve; gaining intravenous least in the majority of states with death penalty statutes access through a central line in most instances requires that appear to contemplate some level of physician par- a physician. Many states do employ doctors in various ticipation in executions. In order to further determine capacities, though few, if any, rely on doctors to perform the legality of medical board action, a comprehensive the kind of anesthetic monitoring requested by lawyers for study was conducted of the statutes and regulations gov- death row inmates. Other states, however, resist calls for erning state medical boards in all 50 states. The study physician participation, claiming that doctors are unable reveals that only a handful of states – and only seven to participate and any court order that they do so will lead death-penalty states – explicitly incorporate the AMA’s to a de facto moratorium on the death penalty. ethical guidelines into their own state ethical codes. The study concludes by suggesting that, where doctors who State medical boards find themselves in the middle of this participate in executions are doing so in order to relieve political and legal debate, yet the boards have thus far fa- pain and suffering, it is not clear that a state medical vored a decidedly hands-off approach. The vast majority board should intervene even in the rare instance when it have declined to take an explicit public position on the would be legally possible to do so. right of doctors to participate in executions and few, if any, have seriously investigated complaints of physician partici- INTRODUCTION pation that have been brought to their attention. In recent years, two related phenomena have contributed to the growing debate about physician participation in Recent events, however, suggest that calls for medical executions in the United States. First, legal challenges to board action may increase. Earlier this year, for example, a states’ lethal injection practices have raised serious ques- national abolitionist organization founded by Sister Helen tions about the qualifications of execution team members Prejean launched a campaign to persuade medical licens- to perform lethal injections using medical equipment and ing boards in each state to declare it unethical for doctors dangerous controlled substances. Second, a series of high- to participate in executions. The stated goal of the cam- profile botched executions and one botched execution at- paign is to “make it impossible for states to carry out their 1 tempt have further exposed lethal injections as far more own protocols for capital punishment.” problematic and prone to error than most people had pre- viously assumed them to be. These phenomena have con- As calls for medical board involvement increase, the need page 16 journal of medical licensure and discipline vol 95 number 3 2009 for legal clarity on the medical boards’ role is apparent. States generally do not dispute that an un-anesthetized ex- This article begins by recounting the history of physician ecution – using these particular drugs – would constitute participation in lethal injection executions, as well as the cruel and unusual punishment under the Eighth Amend- opposition of most medical professional organizations to ment.6 Lawyers defending states’ lethal injection proce- the practice. The ethical guidelines of those membership dures do dispute, however, how likely it is that the delivery organizations, however, are not themselves enforceable. of the first drug, the anesthetic, will somehow go awry, and Only the state medical boards have the power to discipline this is typically where the question of the participation of doctors for alleged ethical violations. The article next stud- medical professionals enters the equation. ies the current legal landscape with respect to the role of state medical boards in disciplining doctors who partici- Lawyers for death row inmates have generally taken the pate in executions. The current state of the law suggests position that, given the degree of skill needed to adequate- that, in most instances, the role of state medical boards is ly deliver, monitor, and maintain anesthesia, as well as the quite circumscribed, at least in the majority of states with widely publicized problems with the administration of an- death penalty statutes that appear to contemplate some esthesia in the lethal injection setting, states that insist on level of physician participation in executions. In those using the three-drug formula must employ the services of states, courts are likely to conclude that the medical board highly-trained medical personnel – often, but not always, does not have legal authority to discipline doctors who par- doctors – in order to ensure that the risk of severe pain to 7 ticipate in lawful, state-sanctioned executions. Moreover, the person being executed does not become “substantial.” a comprehensive study of the statutes and regulations gov- If the states do not want to employ medical professionals, erning state medical boards in all 50 states reveals that only the argument goes, they should switch to a different proto- a handful of states – and only seven death-penalty states col for lethal injections that would not require skilled anes- – explicitly incorporate the AMA’s ethical guidelines into thetic monitoring.8 However, as long as states insist on the their own state ethical codes. Finally, despite the positions three-drug formula, the litigation position taken by lawyers of most national medical associations, there are compel- for death row inmates is that only the supervision of quali- ling reasons for medical boards to refrain from intervening fied medical personnel can reduce the risk of severe pain 9 in this debate. Where doctors who participate in execu- to a constitutional level. tions are doing so in order to relieve pain and suffering, it is not clear that a state medical board should intervene Lawyers representing states and defending the lethal in- even in the rare instance when it would be legally possible jection status quo, however, have resisted mandated physi- to do so. cian participation on the grounds that doctors are unable to participate. “The goal of death penalty opponents,” BACKGROUND claimed a spokesman for the California Attorney General States that employ lethal injection typically use a three- in 2006, “is to get a court order that says that lethal injec- drug formula to carry out executions. The first drug in the tions can only be administered by licensed professionals, formula is intended to anesthetize the inmate; the second because the ethics of medical professionals prohibit them 10 one paralyzes the inmate; and the third drug stops the in- from participating.” mate’s heart, killing him or her.2 One primary legal chal- lenge to this method rests on the allegation that most states The argument that a physician participation requirement do not employ adequate safeguards to ensure that the per- would lead to abolition of the death penalty has surface son being executed is properly anesthetized before the sec- appeal because several national medical associations have ond and third drugs are administered.3 Because the second expressed their belief that physicians should not partici- drug in the three-drug formula paralyzes the inmate, the pate in executions. The American Medical Association concern is that an inadequately anesthetized person “may (AMA) has, since 1980, declared the participation of doc- have the sensation of paralysis without anesthesia . . . and tors in executions to be a clear violation of medical eth- may feel the burning of the highly concentrated” third ics. The AMA’s policy, last updated in 2005, defines “par- drug, potassium chloride.4 In such a state, the paralyzed ticipation” broadly, to include even “consulting with or inmate is unable to indicate to correctional staff that he or supervising lethal injection personnel.”11 The American she is experiencing the suffocating effects of the paralyzing Society of Anesthesiologists (ASA) adopted the AMA po- drug and the excruciatingly painful effects of the potas- sition, and its then-president advised members to “steer 5 12 sium chloride. clear” of participation in lethal injections. The So-
journal of medical licensure and discipline vol 95 number 3 2009 page 17 the “correctional health professional shall . . . not be in- restrict public access to lethal injection protocols.20 As a re- 13 volved in any aspect of execution of the death penalty.” sult of these laws, it is very likely that doctors participate in The media has well documented the positions of these executions to a far greater extent than is currently known. 14 national organizations. However, in addition to the anonymous participating doc- tors interviewed for a New England Journal of Medicine The AMA’s position on physician participation is not, how- article in 2006,21 recent litigation challenging lethal injec- ever, legally enforceable. As a membership organization, tion has illuminated the extent of physician participation the most the AMA could do to discipline a doctor for vio- in certain states. lating the AMA’s ethical guidelines is revoke that doctor’s membership, which would have no effect on his or her In Maryland, for example, nursing assistants and paramed- ability to practice. Indeed, only about 20 percent of doc- ics conduct the executions, although a doctor is present, tors in the United States are even members of the associa- monitors an EKG machine, and pronounces death, all tion, and, according to the AMA’s chief executive officer, in violation of the AMA guidelines.22 In Georgia, a doc- “[t]he other 80 percent either do not understand what we tor supervises executions, and orders the injection of ad- 15 do, or they do not value what we do.” ditional chemicals when deemed necessary; during one execution, the doctor inserted a central line when nurses The ethical guidelines of the state-based medical associa- were unable to find a suitable vein.23 In Oklahoma, a li- tions, many of which mirror those of the AMA,16 are simi- censed physician is present in the execution chamber, larly unenforceable. Although a doctor who participates in monitoring the inmate’s level of consciousness “by what- an execution may violate the guidelines of his or her state ever means he deems appropriate.”24 In California, doc- medical association, the most extreme sanction the doctor tors have been present in each of the state’s eleven lethal faces is revocation of membership in the association. Such injection executions, monitoring heart rate and respira- a sanction would have no effect on a doctor’s ability to tion.25 In Missouri and Arizona, prison officials recently practice in the state. announced that they have found new doctors to oversee the procedures in those states.26 And at least two doctors, The agencies that do have disciplinary authority over phy- including regular states’ expert Dr. Mark Dershwitz, have sicians are the state medical boards, which award licenses assisted states such as Ohio and Tennessee in the develop- to practice medicine. The study next examines the capacity ment of new lethal injection protocols, including advis- of the medical boards to discipline doctors for participating in ing on how the drugs work and recommending specific 27 lethal injection executions, beginning with a brief history. changes to the protocol.
I . LEGAL AUTHORITY OF MEDICAL BOARDS HISTORY OF ACTIVISM AGAINST PHYSICIAN TO DISCIPLINE DOCTORS WHO PARTICIPATE PARTICIPATION Doctors, human rights groups, and abolitionist groups have HISTORY OF PARTICIPATION expressed strong positions against physician participation in Doctors are routinely involved in executions in this coun- executions and taken direct action in an effort to deter such try, and have been since states first started using lethal participation. Amnesty International, for example, has long injection almost three decades ago. In fact, doctors have sought to publicize the fact that physician participation vio- played a key role in the implementation of capital punish- lates the AMA’s ethical code. Two other leading abolitionist ment since the eighteenth century, when Dr. Joseph Guil- organizations, the National Coalition to Abolish the Death lotine developed the machine that bore his name.17 Two Penalty (NCADP), and Human Rights Watch, were two of centuries later, it was a doctor who developed the lethal the four organizational authors of a 1994 report exposing the 18 injection procedure that all states but one currently use. extent of physician participation in executions. Although And doctors continue to play an active role – a role specifi- the report did not take a position on the death penalty, it cally condemned by the AMA’s guidelines – in executions did take a strong position against physician participation, 19 in virtually every state. recommending, among other things, that “[s]tate medical boards . . . should define physician participation as unethi- It is impossible to report a full accounting of the extent of cal conduct and take appropriate action against physicians 28 physician participation in lethal injection executions be- who violate ethical standards.” page 18 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and Other, less centralized, efforts have taken similar forms. ethical code. For example, Ohio’s statute provides that, In Georgia, for example, a group of anti-death penalty “to the extent permitted by law,” the board may “limit, doctors, led by Dr. Arthur Zitrin, filed a complaint in revoke, or suspend an individual’s certificate to practice” 2005 against a doctor who had admitted participating in for violating any provisions of the code of ethics of the several Georgia executions. The complaint was ultimate- AMA.37 In another five death-penalty states – Maryland, ly dismissed. Yet newspaper reports noted that it was part Mississippi, Nebraska, New Hampshire, and Tennessee – of a “recent volley in a campaign to revoke the licenses the regulations adopted by medical boards explicitly refer- of doctors who participate in executions.”29 Indeed, the ence the AMA in the local ethical codes. For example, the previous year, four death penalty opponents (one lawyer, Tennessee medical board fully adopts the AMA’s Code of two doctors, and a chaplain) filed a complaint with the Medical Ethics as its own code of ethics, at least “to the Kentucky Board of Medical Licensure against Governor extent it does not conflict with state law.”38 Maryland reg- Ernie Fletcher. The complaint alleged that, because he is ulations allow the medical board to “consider” the ethical a licensed physician, the governor could not sign a death guidelines of the AMA, “but these principles are not bind- 39 warrant for inmate Thomas Clyde Bowling without vio- ing on the Board.” lating the AMA guidelines.30 Dr. Zitrin, also a vocal op- ponent of the death penalty, followed the complaint filing In these few states, it is theoretically possible that a doctor by publishing an op-ed in the Los Angeles Times titled, participating in an execution – and thereby violating the “Doctor, Reread Your Oath,” and arguing that Governor AMA’s ethical guidelines – could be subject to medical 31 Fletcher’s actions violated the AMA ethical guidelines. board sanction. But in the vast majority of death-penalty The Kentucky medical board ultimately dismissed the states, a medical board would need to find that a doctor complaint, ruling unanimously that although he was a had violated the “catch-all” provision of the state ethics physician, Fletcher was acting in his role as governor, not rules in order to impose discipline. Many states have such 32 as a doctor, when he signed the warrant. provisions, allowing, for example, discipline for a “depar- ture from or failure to conform to the standards of accept- STUDY OF STATE LAWS GOVERNING MEDICAL able and prevailing practice of a profession or the ethics BOARDS of the profession.” It is highly unlikely that participation The vast majority of state medical boards have taken no in executions would fall within that broad language given position on the specific matter of participation in execu- that, if anything, the prevailing practice with respect to tions, and few have ever actually considered disciplining executions is to include the participation of physicians. In a doctor for participating in executions.33 This is the case any event, for the reasons discussed below, in those rare despite the fact that, as discussed above, numerous doc- instances where a medical board both has the colorable tors have participated in hundreds of executions in vari- authority to discipline and the desire to do so, it is far from ous capacities over the past three decades, and anti-death clear that courts will allow such action. penalty activists have filed complaints against specific doctors with medical boards on several occasions. The LEGALITY OF POSSIBLE MEDICAL BOARD North Carolina Medical Board is the only example of a ACTION state board expressing a public interest in disciplining a With an anticipated increase in complaints to medical doctor for participating in an execution; however, as dis- boards, the question arises whether the boards can take ac- cussed below, the North Carolina Supreme Court prohib- tion if they are so inclined.40 There are two reasons to ques- 34 ited the board from imposing discipline on any doctors. tion whether state medical boards have the authority to dis- In fact, no doctor in the United States has ever actually cipline participating doctors even if the governing ethical been disciplined by a medical board for participation in a statute or regulations appear to allow it. First, courts thus 35 lethal injection execution. far have refused to allow medical boards to impose disci- pline where, as in most states, the governing death penalty In an effort to further determine the relevance of the statute contemplates physician involvement. Second, a AMA guidelines in state ethical codes, a comprehen- growing number of states are passing “shield laws” that ex- sive study was conducted of the governing law in all 50 plicitly remove medical board jurisdiction over this issue. states.36 The study reveals that, as of 2009, only two death penalty states, Ohio and Kentucky, have incorporated the 1. Governing Death Penalty Statutes AMA ethical guidelines by statute into their state medical Courts in three states have addressed the question whether journal of medical licensure and discipline vol 95 number 3 2009 page 19 medical boards have the authority to discipline doctors who ment of Corrections, noting that the state legislature had are participating in the administration of a lawful execu- both written the state’s death penalty law and had created tion. All three have concluded that the boards do not have the medical board. Thus, “[t]o allow [the Medical Board] the power to discipline doctors who are essentially carrying to discipline its licensees for mere participation would el- out state law. evate the created Medical Board over the creator General 44 Assembly.” In 2005, Dr. Arthur Zitrin filed a claim with the Georgia Composite State Board of Medical Examiners, seeking With the death penalty statutes in all but two states con- an investigation into whether doctors who participated in templating some form of physician participation,45 it is Georgia’s lethal injections were subject to discipline for unlikely that courts will be any more sympathetic to medi- violating the AMA’s ethical guidelines. The board refused cal board attempts to discipline doctors than the courts in to open an investigation. Dr. Zitrin and several other doc- Georgia, California, and North Carolina have been. Even tors sued in state court, seeking a declaration that Geor- in the few states in which state law or regulation incorpo- gia law prohibits physician participation in executions and rates the AMA guidelines, governing death-penalty law is requiring the Board to open an investigation. The doctors likely to trump the medical board’s authority.46 In Ohio, for did not receive a warm welcome in court. According to a example, state law allows medical board discipline for viola- report in the Atlanta Journal-Constitution, the trial judge to tion of the AMA guidelines, but only to the extent “permit- whom the case was assigned noted during one hearing that ted by” state law. But Ohio law explicitly provides for the “the AMA is simply a membership organization” and asked presence at an execution of “[p]hysicians of the state cor- counsel for Dr. Zitrin, “How many Georgia physicians be- rectional institution in which the sentence is executed,”47 long to the AMA? I’d say less than half. And you want to in violation of the AMA guidelines. Under the reasoning incorporate an ethical opinion of the AMA into Georgia of the courts that have thus far addressed this issue, it is law?”41 The judge ruled against the doctors, finding that unlikely that the Ohio medical board would be able to dis- they had failed to state a claim. The Georgia Court of Ap- cipline a doctor for being present at an execution when his peals affirmed, noting that the medical board’s position in or her presence is specifically provided for in the governing the matter “guarantees that no physician [in Georgia] will death penalty statute. be subject to disciplinary proceedings as a result of his or 42 her participation in an execution.” 2. Safe harbor and shield laws Some states are not taking any chances and have preemp- When a group of doctors sued in California in 1996 for tively protected doctors from any medical board action by a declaration that physicians who participated in execu- enacting various laws that are intended to trump any such tions should lose their licenses under state law, the Court efforts. These laws, generally referred to as “safe harbor” of Appeal found highly significant the fact that the state laws, specifically prevent medical boards from taking dis- penal code appeared to authorize physician participation ciplinary action against medical providers who opt to par- in executions. “Surely,” the court reasoned, “the Legisla- ticipate in executions.48 In practice, these laws immunize ture could not have expressly and implicitly provided for doctors from licensing challenges. Illinois was among the physician involvement in executions, and simultaneously first states to adopt such a provision; it did so in response to subjected participating physicians to discipline or other le- a 1994 complaint requesting that the Illinois medical board 43 gal sanctions from engaging in lawful conduct.” discipline doctors willing to participate in the execution of John Wayne Gacy.49 Other states soon followed suit. In Even in the one state in which the medical board publicly addition, at least eight states have adopted “exclusionary” expressed a will to consider disciplining participating doc- statutes, which provide that lethal injections do not consti- tors, the state’s supreme court intervened. When the North tute the practice of medicine, thus insulating doctors who 50 Carolina Medical Board issued a statement in 2007 warn- participate in executions from medical board sanctions. ing that doctors who facilitate executions “may be subject Finally, many states have various “shield” laws and policies to disciplinary action,” it was sued by the Department of in effect to ensure the anonymity of doctors who do partici- Corrections, which claimed that the medical board was pate in executions. These laws effectively protect such doc- 51 interfering with its ability to carry out state law, which re- tors against any licensing challenges by third parties. quires the presence of a physician during executions. The * * * North Carolina Supreme Court sided with the Depart- To determine whether a particular state’s medical board page 20 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and can impose discipline, several hurdles must be overcome. count provides a rare view into the motivations of doctors First, the state medical board must be empowered to dis- who actually conduct executions in the United States. cipline doctors for violating the ethical guidelines of the One doctor, anonymously referred to as “Dr. A,” origi- AMA. As mentioned above, state law in only seven death- nally agreed to assist in an execution with the understand- penalty states even references the AMA in its ethical code. ing that his role would be limited to cardiac monitoring. Second, there must be no safe harbor statute on the books. Soon, though, his participation increased by virtue of his And third, the state’s governing death penalty statute must presence on the scene, and he began placing IV lines not explicitly contemplate the participation of physicians. in the men who were set to die and assisting whenever In sum, in the vast majority of states (if not all of them), the something went wrong during an execution.55 Another medical board has no legal power to discipline doctors for doctor, “Dr. C,” worried about being exposed publicly as participating in executions. an executioner, but had no moral qualms about his role. “I think that if I had to face someone I loved being put to II . PRACTICAL REASONS FOR MEDICAL death,” Dr. C commented, “I would want that done by BOARDS TO AVOID INTERVENTION lethal injection, and I would want to know that it is done 56 competently.” The position of the AMA and others opposed to physician participation is well-publicized. But there is another side. One of the interviewed doctors chose not to remain anon- Even if there is a theoretical possibility of imposing disci- ymous. Dr. Carlo Musso, who assists with executions in pline in a handful of states, there are compelling reasons Georgia, told Dr. Gawande that he participates in spite of for medical boards to refrain from interfering in the ex- the AMA guidelines because he feels an obligation not to ecution business. Some doctors have even expressed an abandon inmates in their final moments. As Dr. Musso obligation on the part of physicians to participate in order explained, “[T]his is an end-of-life issue, just as with any to ensure that the execution does not result in unnecessary other terminal disease. It just happens that it involves a pain or suffering. legal process instead of a medical process. [A death pen- alty] patient is no different from a patient dying of cancer 57 For example, Dr. David Waisel, an anesthesiologist at – except his cancer is a court order.”
Children’s Hospital in Boston, recently argued that orga- nized medicine has an obligation to permit physician par- A doctor recently hired by the state of Arizona to oversee ticipation in executions “to the extent necessary to ensure executions testified in a recent deposition that he was “sur- a good death.”52 Dr. Waisel rejects the common arguments prised” by the number of people who argued that it was against physician participation as slippery-slope arguments “totally inappropriate” for doctors to participate in execu- that have little basis in reality. For example, he finds no tions.58 To the contrary, the doctor testified, “I think as evidence to support the arguments that physicians who long as it’s something that the government thinks is appro- participate in executions will lack the ability to act with priate and it should be done, it should be done correctly. 59 compassion or independence in their normal practice, or So that’s why I’m . . . participating.” that the public trust in the medical profession will be lost as a result. In the end, it is the capacity of the three-drug Another prominent, and oft-cited, defense of physician lethal injection procedure to inflict great suffering on the participation in lethal injection executions is that of- condemned that has convinced Dr. Waisel that physician fered by Dr. Kenneth Baum, who argues that under the participation in the process is necessary. Forbidding physi- patient-centered conception of medical ethics, physicians cian participation, he writes, “increases the chances of a are obligated to participate in lethal injections. Dr. Baum botched execution. It seems cruel to permit capital pun- echoes Dr. Musso’s analogy of a dying cancer patient: ishment but not to permit participation of those who are “Condemned death row inmates are, for all practical pur- 53 capable of performing it humanely.” poses, terminally ill patients, albeit under a nontraditional 60 definition of the term, and deserve to be treated as such.” Dr. Atul Gawande, a Harvard medical school professor In fact, Dr. Baum notes that doctors generally are thought who is himself opposed to physician participation in le- to have a duty to minimize suffering when a patient is dy- thal injections, interviewed several doctors regarding their ing, and that “[t]o desert these individuals [condemned decision to participate in executions.54 Published in the inmates] in their most vulnerable hour would be antithet- New England Journal of Medicine, Dr. Gawande’s ac- ical to the beneficent ideals of medical practice.”61 It is the journal of medical licensure and discipline vol 95 number 3 2009 page 21 doctor who turns his or her back on a dying inmate, and reality is that there is a role for doctors to play in the mini- refuses to do what he or she can to relieve suffering, “who mization of pain and suffering at the end of a condemned truly violates the ethical code of the profession.”62 Or, as inmate’s life. For a medical board to discipline a doctor for another doctor put it in a response letter to Dr. Gawande’s playing that role would be, in most instances, legally unten- article, “the participation of physicians seems more hu- able and a questionable exercise of the board’s priorities. mane than delegating the deed to prison wardens, for by condoning the participation of untrained people who ACKNOWLEDGEMENTS could inflict needless suffering that we physicians might Portions of this article are adapted from an article recently have prevented, we are just as responsible as if we had published in the North Carolina Law Review. See Ty Alper, 63 inflicted the suffering ourselves.” The Truth about Physician Participation in Lethal Injection Executions, 88 N.C. L. Rev. 11 (2009). I am indebted to III . CONCLUSION Carolina Rodriguez for outstanding research assistance.
Medical boards have broad jurisdiction and much to address AUTHOR AFFILIATIONS in the medical profession. It is far from clear, however, that Ty Alper, Associate Director, Death Penalty Clinic, Uni- they have the legal authority to impose discipline on doctors versity of California, Berkeley, School of Law. who participate in executions. In fact, it is far more likely that they do not have that authority in the vast majority of 1. Nancy Frazier O’Brien, Doctors’ role in executions part states. Moreover, while the image of doctors participating in of new tactic against death penalty, Catholic News the execution process may spark a viscerally negative reac- Service, Feb. 4, 2009. tion in members of a profession dedicated to healing, the 2. See Deborah W. Denno, When Legislatures Delegate
Table A: Incorporation of AMA Ethical Guidelines into State Medical Ethics Statutes
I. Death Penalty States With Statutory or Regulatory Incorporation of AMA Guidelines Kentucky* Maryland Mississippi Nebraska New Hampshire Ohio* Tennessee
II. Death Penalty States Without Statutory or Regulatory Incorporation of AMA Guidelines Alabama Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Idaho Illinois Indiana Kansas Louisiana Missouri Montana Nevada North Carolina Oklahoma Oregon Pennsylvania South Carolina South Dakota Texas Utah Virginia Washington Wyoming
III. Non-Death Penalty States With Statutory or Regulatory Incorporation of AMA Guidelines Alaska Hawaii* Iowa New Mexico West Virginia
IV. Non-Death Penalty States Without Statutory or Regulatory Incorporation of AMA Guidelines Maine Massachusetts Michigan Minnesota New Jersey New York North Dakota Rhode Island Vermont Wisconsin * The AMA Guidelines are incorporated by statute in these states. page 22 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and Table B: Citations to State Ethical Laws
State Relevant Statutes and Regulations Alabama Ala. Code § 34-24-360 (2009) Alaska Alaska Stat. § 08.64.326 (2009) Alaska Admin. Code tit. 12, § 40.955(a) (2009) Arizona Ariz. Rev. Stat. Ann. § 32-1451 (2009) Arkansas Ark. Code Ann. §17-95-409 (West 2009) California Cal. Bus. & Prof. Code § 2234 (West 2009) Colorado Colo. Rev. Stat. § 12-36-117 (2009) Connecticut Conn. Gen. Stat. Ann. § 20-13C (West 2009) Delaware Del. Code Ann. tit. 24 § 1731 (2009) Florida Fla. Stat. Ann. § 458.331 (West 2009) Georgia Ga. Code Ann., § 43-34-8 (2009) Hawaii Haw. Rev. Stat. Ann. § 453-8(a)(9) (LexisNexis 2009) Idaho Idaho Code Ann. § 54-1814 (2009) Illinois 225 Ill. Comp. Stat. Ann. 60/22 (LexisNexis 2009) Indiana Ind. Code. § 25-22.5-5-2.5 (West 2009) Iowa Iowa Code Ann. § 147.55 (West 2009) Iowa Admin. Code r. 653-13.20 (2009) Kansas Kan. Stat. Ann. § 65-2836 (2009)
Kentucky Ky. Rev. Stat. aNN. § 311.597(4) (WeSt 2009) 201 Ky. admiN. RegS. 9:005(1)(a) (2009) Louisiana La. Rev. Stat. Ann. § 37:1285 (2009) Maine Me. Rev. Stat. Ann. tit. 32 § 3282-A (2009) Maryland Md. Code Ann., Health Occ. § 14-404 (West 2009) Md. Code Regs. 10.32.02.10 (2009) Massachusetts Mass. Gen. Laws Ann. ch. 112, § 5 (West 2009) Michigan Mich. Comp. Laws Ann. § 333.16221 (West 2009) Minnesota Minn. Stat. Ann. § 147.091 (West 2009) Mississippi Miss. Code Ann. § 73-25-29 (West 2009) 50-013-001 Miss. Code R.§ 22(500)(2)(Weil 2009) Missouri Mo. Rev. Stat. § 334.100 (West 2009) Montana Mont. Code Ann. § 37-3-323 (2007) Nebraska Neb. Rev. Stat. Ann. § 38-178 (2009) 172 Neb. Admin. Code, ch 88, § 013(1) (2009) Nevada Nev. Rev. Stat. Ann. § 630.301 (West 2007) New Hampshire N.H. Rev. Stat. Ann. § 329:17 (2009) N.H. Code Admin. R. Ann. Med. 501.02(h) (West 2009) New Jersey N.J. Stat. Ann. § 45:1-21 (West 2009) New Mexico N. M. Stat. Ann. § 61-6-15 (West 2009) N.M. Code R. § 16.10.8.9(A) (Weil 2009) New York N.Y. Educ. Law § 6530 (McKinney 2008) North Carolina N.C. Gen. Stat. Ann. § 90-14 (West 2009) North Dakota N.D. Cent. Code §43-17-31 (2009) journal of medical licensure and discipline vol 95 number 3 2009 page 23
Ohio Ohio Rev. Code Ann. § 4731.22(B)(18) (West 2009) Oklahoma Okla. Stat. Ann. tit. 59, § 509 (West 2009) Oregon Or. Rev. Stat. Ann. § 677.190 (West 2009) Pennsylvania 63 Pa. Stat. Ann. § 422.41 (West 2009) Rhode Island R.i. Gen. Laws § 5-37-5.1 (2009) South Carolina S.C. Code Ann. § 40-47-110 (2008) South Dakota S.d. Codified Laws § 36-4-30 (2009) Tennessee Tenn. Code Ann. § 63-6-214 (West 2009) Tenn. Comp. R. & Regs. 0880-02-.14(8) (2009) Texas Tex. Occ. Code Ann. § 164.053 (Vernon 2009) Utah Utah Code Ann. § 58-1-501 (West 2009) Vermont Vt. Stat. Ann. tit. 26 § 1354 (2009) Virginia Va. Code Ann. § 54.1-2915 (West 2009) Washington Wash. Rev. Code § 18.130.180 (West 2009) West Virginia W. Va. Code Ann. § 30-3-14 (West 2009) W. Va. Code R. § 11-1A-12 (12.2)(d) (2009) Wisconsin Wis. Stat. § 448.02(3) (West 2009) Wyoming Wyo. Stat. Ann. § 33-26-402 (2009)
Death: The Troubling Paradox Behind State Uses of 10. Emma Harris, Will Medics’ Qualms Kill the Death Electrocution and Lethal Injection and What It Says Penalty? 441 Nature 8-9 (May 4, 2006). About Us, 63 Ohio St. L.J. 63, 97 (2002). Only Ohio 11. Council on Ethical and Jud. Affairs, AMA, Council uses a different procedure. See Ian Urbina, Ohio Rep., Physician Participation in Capital Punishment, Is First to Change to One Drug in Executions, N.Y. 270 JAMA 365, 365 (1993). Times, Nov. 13, 2009. 12. Message from Orin F. Guidry, M.D., President, Am. 3. See Deborah W. Denno, The Lethal Injection Quan- Soc’y of Anesthesiologists, Observations Regarding Le- dary: How Medicine Has Dismantled the Death thal Injection (June 30, 2006), available at http://www. Penalty, 76 Fordham L. Rev. 49, 54-58 (2007). asahq.org/news/asanews063006.htm. 4. David Waisel, Physician Participation in Capital Pun- 13. Society of Correctional Physicians, Code of Ethics, ishment, 82 Mayo Clinic Proc. 1073, 1074 (2007). (adopted 1997, amended 1998). 5. See Ty Alper, Anesthetizing the Public Conscience: 14. See, e.g., Henry Weinstein, Anesthesiologists Advised to Lethal Injection and Animal Euthanasia, 35 Fordham Avoid Executions, L.A. Times, July 2, 2006; Rosanna Urb. L.J. 817, 819 (2008). Ruiz, Hippocratic Oath Keeps Doctors Out of Death 6. See, e.g., id., at 819-20 & n.20. Chambers, Houston Chron., February 24, 2006; 7. Baze v. Rees, 128 S.Ct. 1520, 1532 (2008) (quoting Valerie Reitman, Doctors Wary of Crossing Line, L.A. Farmer v. Brennan, 511 U.S. 825, 842 (1994)). Times, Feb. 22, 2006; Adam Liptak, Should Doctors 8. Often suggested is that states consider a one-drug, Help With Executions? No Easy Ethical Answer, N.Y. anesthetic-only procedure similar to that used in most Times, June 10, 2004; Lawrence K. Altman, Focus on animal euthanasia. See, e.g., Alper, supra note 5, at Doctors and Executions, N.Y. Times, Mar. 20, 1994; 833-39. Ohio recently became the first state to use Don Colburn, Lethal Injection: Why Doctors Are Un- such a method. easy About the Newest Method of Capital Punishment, 9. Another legal challenge to lethal injection protocols Wash. Post., Dec. 11, 1990. has to do with establishing intravenous access in 15. See Michael D. Maves, Chief Executive Officer, inmates with compromised veins. In such cases, it is American Medical Association, A challenge to the often necessary to place a central line, in, for example, House of Delegates, available at http://www.ama-assn. the inmate’s groin. Such a procedure almost always org/ama/pub/news/speeches/challenge-house-del- necessitates the skill of a trained physician. egates.shtml (Nov. 8, 2008). page 24 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and 16. See W. Noel Keyes, The Choice of Participation by 35. See Gawande, supra note 21, at 1223. Physicians in Capital Punishment, 22 Whittier L. Rev. 36. As a result of medical boards operating independently 809, 810 (2001). from one another, their governing statutes and regula- 17. See Kenneth Baum, “To Comfort Always”: Physician Par- tions are not uniform. Some states, for example, have ticipation in Executions, 5 N.y.u. j. LegiS. & pub. poL’y 47, statutory provisions exclusively addressing medical eth- 53 (2001). ics and/or ethical sanctions, while others do not. States 18. See Denno, supra note 3, at 84. that do not have dedicated “ethics” provisions at times 19. See id. at 84-88. discuss these matters in other provisions of the statute 20. See Nadia N. Sawicki, Doctors, Discipline, and the Death or regulations. The statutory provisions cited in Table Penalty: Professional Implications of Safe Harbor Policies, B pertain to those provisions that define unprofession- 27. yaLe L. & poL’y Rev. 107 (2008). al conduct, either generally or specifically. Note that 21. See Atul Gawande, When Law and Ethics Collide—Why some laws and regulations refer to “unethical” rather Physicians Participate in Executions, 354 NeW eNg. j. med. than “unprofessional” conduct. To determine whether 1221, 1223-28 (2006). a state referred to the AMA’s ethical standards, key 22. See Jennifer McMenamin, Lethal Practice, Baltimore term searches were conducted for the relevant statutes Sun, Oct. 22, 2006. and regulations in all 50 states. 23. See Liptak, supra note 14. 37. Ohio Rev. Code Ann. § 4731.22(B)(18) (West 2009). 24. Defendant’s Response to Memorandum and Motion 38. Tenn. Comp. R. & Regs. 0880-02-.14(8) (2009). to Reactivate Proceedings at 5, Taylor v. Jones, No. 39. Md. Code Regs. 10.32.02.10 (2009). 5:05CV00825 (W.D. Okla. Sept. 3, 2008). 40. It is quite clear legally that a state medical board’s discre- 25. See Teresa A. Zimmers & David A. Lubarsky, Physi- tion not to pursue discipline against a participating doctor cian Participation in Lethal Injection Executions, 20 is unreviewable. See Sawicki, supra note 20, at 138 n. 144. Current Opinion Anaesthesiology 147, 148-49 (2007). 41. Carlos Campos, Lawyers: Don’t let Doctors Execute, At- 26. See Deposition of Medical Team Member 1 at 11, lanta J.-Const., Dec. 21, 2005. Dickens v. Napolitano, No. CV07-1770-PHX-NVW 42. See Zitrin v. Ga. Composite State Bd. of Med. Exam- (D. Ariz. Oct. 1, 2008); Associated Press, Missouri iners, 653 S.E.2d 758, 762 (Ga. Ct. App. 2007). Poised to Resume Executions; State Has Added Anesthe- 43. Thorburn v. Dep’t. of Corrs., 78 Cal.Rptr.2d 584, 590 siologist To Death Row Team, St. Louis Post-Dispatch, (Cal. App. 1998). May 27, 2008. 44. North Carolina Dept. of Corr. v. North Carolina 27. Harbison v. Little, 511 F. Supp.2d 872, 876 (M.D. Medical Bd., 675 S.E.2d. 641, 651 (N.C. 2009). Tenn. 2007); Ian Urbina, Ohio Finds Itself Leading the 45. See Denno, supra note 3, at 88-89. Way to a New Execution Method, N.Y. Times, Nov. 46. See Eric Berger, Lethal Injection and the Problem of 17, 2009. Constitutional Remedies, 27 Yale Law and Pol’y Rev. 28. The Am. Coll. of Physicians et. al., Breach of Trust: 259, 321 (2009). Physician Participation in Executions in the United 47. Ohio Rev. Code Ann. § 2949.25 (West 2007). States 46 (1994). 48. See Sawicki, supra note 20, at 130. 29. Carlos Campos, Doctors’ Execution Role Targeted, 49. Id. at 124-25. Atlanta J.-Const., June 2, 2005. 50. See Denno, supra note 3, at 89 & n.263. It is worth 30. See Andis Robenznieks, Ethics Charges Related to noting that these statutes also serve to insulate non- Executions Dropped, AM News, Jan. 31, 2005. doctors from discipline for performing tasks during 31. Arthur Zitrkin, Doctor, Reread Your Oath, L.A. Times, executions that are typically the province of the medi- Dec. 8, 2004. cal profession. 32. See Deborah Yetter, Ethics Complaint is Dismissed; 51. Illinois’ statute, for example, provides that “[t]he identity Foes of Execution Challenged Fletcher, Courier-J., Jan. of executioners . . . and information contained in records 14, 2005. that would identify those persons shall remain confiden- 33. See Gawande, supra note 21, at 1223. tial, shall not be subject to disclosure, and shall not be 34. See Pauline Vu, Executions Halted as Doctors Balk, State- admissible as evidence or be discoverable in any action line.org, Mar. 20, 2007; Kevin B. O’Reilly, N.C. court over- of any kind in any court or before any tribunal, board, turns ban on doctor participation in executions, AM News, agency, or person.” 725 Ill. Comp. Stat. Ann. 5/119-5(e) May 18, 2009. (West 2009). journal of medical licensure and discipline vol 95 number 3 2009 page 25
52. Waisel, supra note 4,at 1073. 53. Id. at 1079. 54. See Gawande, supra note 21. 55. See id. at 1225. 56. Id. 57. Id. 58. Dickens v. Brewer, No. CV07-1770-PHX-NVW (D. Ariz.) (deposition of Medical Team Member 1), at 263. 59. Id. 60. See Baum, supra note 17, at 61. 61. Id. at 62. 62. Id. 63. Bruce E. Ellerin, Letter to the Editor, Why Physi- cians Participate in Executions, 355 NeW eNg. j. med. 99, 99 (2006).
page 26 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and MEDICAL STUDENT SUBSTANCE ABUSE INTERVENTION: A CASE REPORT AND LITERATURE REVIEW
Daniel M. Avery, M.D., Gabriel H. Hester, M.D., Rane McLaughlin, M.D., and Gregory E. Skipper, M.D.
ABSTRACT problem but less than 28 percent felt adequately trained 72 Alcohol and drug abuse and addiction among medi- to treat it. cal students have been reported extensively. This is an important topic because substance abuse can lead Some have identified SUDS as the number one health to impairment, which affects the well-being of many, problem in the United States.72,80 The prevalence of drug including medical students, and because it compro- and alcohol use and abuse in this country is astounding. mises physician competency. Education and clinical The United States has 6 percent of the world’s population training regarding substance use disorders (SUDS) has but consumes 60 percent of the world’s illicit drugs.81 An been severely neglected, especially in relation to their estimated 40 percent of hospital admissions are related to incidence, not only among health professionals but also addiction.40 An estimated 50 million people use cocaine among patients. Students know little about SUDS and regularly in the United States and 50 million people are little regarding identifying a colleague in trouble. This addicted to drugs. Addiction is use not compatible with article presents a case of a peer medical student inter- the goals of treatment. Addiction to nicotine may become vention with a successful outcome as a proximate result “the greatest health risk to the developing world, surpass- of a brief educational program for medical students ing malnutrition and communicable diseases.”10 Alcohol and argues for more education regarding SUDS, pro- abuse is a worldwide phenomenon.44 A characteristic of fessional impairment, and how to deal with a peer who chemical dependence is the compulsive use of substances has a problem. To our knowledge, peer medical student despite adverse consequences.15 It is a disease in which the intervention for a fellow student addicted to alcohol or individual is so consumed by drugs that they take on exces- drugs has never been reported in the English language. sive importance in a person’s life.82 For centuries, man has used substances to obtain euphoria8 and has subsequently 51 INTRODUCTION struggled with substance abuse since time began. Alcohol and drug abuse and addiction among medical students have been reported extensively.1-79 Studies sug- CASE REPORT gest that the lifetime prevalence of substance use disor- An educational endowment in alcoholism and addiction ders (SUDS) among U.S. physicians is in excess of 10 education and physician impairment was established at percent.16,21 Alcohol and substance abuse causes physician the University of Alabama School of Medicine in Tusca- impairment and compromises patient care.14,18 Physician loosa in 1994 by a former patient who was a recovering abuse and addiction is important because it not only af- alcoholic. The founder recognized that medical students, fects the life of the physician but the patients he cares for as residents and most attending physicians knew very little well.17 Substance abuse among physicians not only creates about alcoholism and drug abuse and addiction and even health risks and physician impairment but creates huge so- less about physician impairment. The program was ex- cial and financial problems.28,35 It is postulated that alcohol panded in 2006 to a one-week series of lectures for medical and drug abuse may make physicians less concerned about students, including the natural history of drug and alcohol drug abuse and addiction in their own patients.29 Accord- abuse, the disease concept of addiction, physician impair- ing to a 1985 study by the AMA, more than 90 percent of ment, assessment, rehabilitation, return to education and physicians in this country believe that alcohol abuse is a work, contracts, monitoring, support groups, Caduceus journal of medical licensure and discipline vol 95 number 3 2009 page 27 and Alcoholics Anonymous. The lectures also include nel, firemen, nurses, attorneys and corporate leaders must work-hour restrictions, fatigue and exhaustion, urine drug be accountable and responsible to society because their fit- screening and employment of recovering physicians. Stu- ness for duty affects the well-being of many; physicians are dents are presented with clinical scenarios involving alco- no different.25,83 Medical students, residents, fellows and hol, substance abuse, prescription writing and what to do attending physicians appear to be as susceptible to SUDS 5,12,46,48,58 if a colleague is suspected of abusing alcohol or drugs. The as the rest of society. students are provided with confidential contact resources both at the medical school and the physician health pro- A recent review by Mangus, et al describes concern over gram. Students are educated on identification of health physician addiction to alcohol, cocaine and morphine care professionals who may possibly be impaired. dating back to 1869.9,17 Alcohol abuse by physicians ap- pears unchanged for the past 50 years and approximates Following the course, two medical students presented to that of the general population, despite education and re- the office of one of the authors (DA) asking for assistance search into alcoholism and addiction.9,12,14 However, drug for a medical student in trouble. One of the students stated use other than alcohol by physicians has significantly in- that the student accompanying him was an alcoholic and creased since the 1960s.76 Many feel that narcotic addic- needed help. He described the fellow student’s excessive tion is the most prevalent addiction among physicians after use of alcohol daily that had escalated to the point that alcohol addiction.14 Cocaine5 benzodiazepine, stimulant his colleagues and friends did not want to be around him. and marijuana abuse is also a major cause of physician This student had been involved in two recent automobile impairment. Many medical students do not see drug and 36 accidents, both related to alcohol. The last accident was a alcohol abuse and addiction as a disease. single-car accident near his family’s home. A group of con- cerned medical students and friends organized and staged Self-treatment of pain and fatigue is the common reason an intervention on the impaired medical student. The in- that physicians get into trouble with drugs.70,73,76,84 Stress tervention impressed the impaired student about the need places physicians at risk for substance abuse and addic- for getting help. The involved student admitted to one of tion.7,14 Many impaired physicians relate their initial the authors (DA) that he was in trouble with alcohol. He substance abuse to stress in medical school.70,78 A family understood that his friends had become worried about his history of alcoholism is the most consistent predisposing excessive drinking, especially after the two recent automo- factor for alcoholism.17 Some hospitals randomly screen 14 bile accidents. He agreed to cooperate with notification their physicians for drugs and alcohol. of the state physician wellness program, which was called immediately. The director of the program interviewed ALCOHOL AND DRUG ABUSE AMONG the impaired student on the telephone and arranged for a MEDICAL STUDENTS meeting between them the following day. The student met Medical students worldwide abuse alcohol and with the medical school administration and the medical drugs.3,11,31,41,56 In 1973, the American Medical Association center’s physician health officer. A physician health pro- published a statement describing concern over drug and gram and state medical society approved evaluation and alcohol abuse among medical students.5 Studies of alcohol assessment was carried out with the recommendation of and drug abuse and addiction in medical students are dif- residential treatment for alcoholism. A leave of absence ficult to assess because of confidentiality concerns and re- for medical treatment was approved by the medical school. quests for anonymity.12,15,41 Actual numbers are difficult to Approved residential treatment was completed. A contract obtain and under-reporting or non-responses to questions with the physician health program was signed. The stu- regarding SUDS are frequent because of students’ fear of dent subsequently returned to medical school to continue consequences; however, the available data approximate 12,15,69 studies under contract with the physician health program the lifetime risk of a physician for SUDS. and the medical school with appropriate aftercare and monitoring. The student has to date continued to do well The National Clearing House for Alcohol and Drug In- and is in recovery. formation (NCADI) reports that anonymity is the essential component of reliable self-reporting.14 If a medical student ALCOHOL AND DRUG ABUSE AMONG PHYSI- uses alcohol or substances excessively before entering CIANS, RESIDENTS AND STUDENTS medical school, he or she will probably continue to do so 12 Airline pilots, railroad engineers, law enforcement person- after entering medical school. page 28 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and Alcohol is the substance used most often by medical stu- even cocaine should be legalized.3,48,57 A 1972 study ac- dents.12,14,31,36 A 1990 study showed that 11 percent of med- knowledged there was a significant difference in opinions ical students self-reported heavy drinking and 18 percent between medical students and attending physicians about of those met the criteria for impairment, most commonly marijuana.34 Medical students report less substance use reporting blackouts and fighting while drinking.1 In this than comparable age-related groups except for alcohol, study, 18 percent of the class met the criteria for alcohol tranquilizers and psychedelics other than LSD.2 Medical abuse defined as “student self-report of alcohol-related education is stressful78,86 and may account for increased impairment during medical school.”1 In one study 87.5 use of tranquilizers.2 Medical students using cocaine and percent of medical students reported alcohol use within other drugs of abuse before medical school will often con- the past month, 10 percent cocaine use and 10 percent tinue during medical school.5,12 A 1966 study raised the marijuana use.2 In another study, alcohol use by medi- question regarding whether it is coincidental that the per- cal students approximated that of the general population centage of medical students using illicit drugs is about the for college age individuals.7 Other studies have suggested same percentage as attending physicians who are addicted 32 that medical students use less drugs and alcohol than age- and impaired. matched peers.12 In a United Kingdom study in 2000, al- most half the class self-reported drinking alcohol beyond a In a 1989 study of medical students, more than a third safe level.6 Percentages of alcohol use have been reported reported use of cocaine.6 About half of medical students 60 as high as 95 percent. in 1989 reported use of stimulants to stay awake to study and take call.6 In the same study, marijuana was the most Medical students consume excessive amounts of alcohol commonly used illicit drug and almost half of the students comparable to their age group, despite their knowledge of had at least tried it.11,12 Another study reported that medi- adverse consequences.11,28 In a United Kingdom study, the cal students abused fewer drugs as they progressed through majority of students reported their first drink of alcohol be- medical school.12 Illicit drugs and alcohol are associated fore the age of 12; the earlier the age of consumption, the with recreational use while therapeutic drugs tend to be greater the risk of heavier consumption.11 Many students associated with stress.70,78 “Club” drugs such as cocaine, were already drinking alcohol excessively and trying illicit lysergic acid diethylamide and cocaine have been report- 11 27 drugs before starting college. In another study, 86 per- ed to have been used by 17 percent of medical students. cent of the students drank alcohol and approximately half Surgery residents used less substances than did other resi- 13,28 of those drank excessively. dents with the exception of alcohol; alcohol use is thought to be related to stress and fatigue.14 Students, however, en- Alcohol abuse in medical school is predicated by a fam- tering surgical residencies used more substances than did 14 ily history of alcoholism, alcohol abuse before beginning residents. medical school,1,2 availability of controlled substances, stress and emotional problems.96,85 A 1993 study examined PHYSICIAN HEALTH PROGRAMS alcoholism in parents of medical students and found that Approximately half of the physician health programs 27 percent of the students had parents that abused alco- (PHPs) in the United States officially work with medical 18 18,46 hol. This rate is twice that of the general population. students. In many cases medical schools provide financial Students attending church frequently usually use less al- support to the PHP for the services. PHPs are a heterog- cohol.83 One article reported an increase in alcohol abuse enous group of agencies, typically one in every state (five with the beginning of the clinical years.24,38 Alcohol and states don’t have officially recognized PHPs at this time: drug abuse among medical students may affect care and California, Wisconsin, Georgia, Nebraska and North Da- safety of patients.30 A prominent 1986 study by McAuliffe kota). PHPs provide a “clinical arm” for regulatory boards in the New England Journal of Medicine implied medi- to encourage early referral and treatment of physicians cal student use of drugs “should not be a cause for great with problems related to impairment. The goal is to de- alarm”73; over time, this has proven not to be the case. tect problems prior to overt impairment. The PHPs market their approach to the medical community by providing ed- Medical students often report drug abuse and depen- ucation to hospitals and others. Their goal of early referral dence.2 A third of medical students used illicit drugs; the is greatly enhanced when they can offer confidential sup- 13,28,31,48 most commonly used illicit drug was marijuana. portive care. In all states where confidential care of phy- A minority of medical students believe marijuana and sicians is encouraged and permitted there are predefined journal of medical licensure and discipline vol 95 number 3 2009 page 29 limits to confidentiality, such that participants are reported dents know even less.36,101,102 They know even less about to the regulatory board if they refuse recommendations to physician impairment and identifying those colleagues at stop work and obtain needed treatment or if they relapse. risk. Medical schools have traditionally not educated med- Thorough evaluation and treatment are usually followed ical students about alcoholism and drug addiction.101 In by long-term monitoring for years. Evidence exists that be- 1990, less than 25 percent of medical schools had policies havioral problems among medical students is predictive of for impaired students and only half of those had programs problems later in practice. Working with medical students to assure and oversee treatment of those students.5 Before is completely consistent with PHPs’ goals of early detec- the early 1990s, there was little data on medical student 2 tion, treatment and long-term monitoring. substance abuse.
TREATMENT PROGRAMS FOR PHYSICIANS, This lack of knowledge limits understanding of the disease RESIDENTS AND STUDENTS concept of addiction and subsequently of timely patient Comprehensive assessment and treatment programs are diagnosis and treatment.35,101 Students often have negative 85,87- 101 available for medical students, residents and physicians. attitudes regarding addicted patients. Medicine has done 97 Intervention and treatment in most states is overseen by a poor job educating physicians about alcohol and drug a state impaired-physician committee or a physician health abuse.35,37 Although primary care providers are those most program under the auspices of the medical society and/or often confronted about abuse, they know the least about it 35 the state regulatory board. These programs designate and and are the least helpful to patients and families. approve assessment and treatment programs. Most assess- ments are multidisciplinary and take three to four days to A need exists for education in medical school about alco- complete. Rehabilitative treatment can last from six weeks holism and drug addiction.11,12,35,36,37,40,56,72,73,76,77,101 A Unit- to three or more months. The success rates for physicians ed Kingdom study in 2000 suggested that current educa- 11,12 are high, due to the effective utilization of contingency tion for medical students on addiction is inadequate. management with long-term monitoring with real or tacit Medical school courses in both the basic sciences and dur- threat of loss of license for failure. Most physicians return ing the clinical years are needed to better educate medi- to successful and rewarding practices. Recidivism rates are cal students about the risks of SUDS, and these courses low. Most states require aftercare contracts, usually for five must keep up with current trends.6,27,45 It is also important years but sometimes longer. Some malpractice insurance that medical education emphasize facts about professional 19 carriers require indefinite monitoring. Most physician impairment and how it can compromise patient care. wellness programs are rehabilitative and not punitive in Education for medical students would increase the like- 98,99 nature. lihood that physicians could provide better information for patients about abuse and addiction.13,28,29,37 Students Aftercare following treatment usually involves a contract are exposed to the medical aspects of alcoholism but not with the PHP for a specified number of years along with the psychological, social and spiritual.103 It is important to random drug screen monitoring. Most malpractice in- educate medical students about Alcoholics Anonymous surance carriers require PHP advocacy, including urine because most physicians and students do not have positive drug testing for as long as one is covered by that company. attitudes or much knowledge about the program.33 Edu- Group therapy, individual counseling, marital therapy, cation about drugs before students graduate may reduce 32,37 aftercare groups, treatment center revisits, local physi- inappropriate prescribing to patients. cian monitors, quarterly assessments, psychiatric and psy- chologic evaluations are all part of the recovery program. Medical student participation in substance abuse treat- Twelve Step programs like Alcoholics Anonymous (AA), ment clinics may help educate students about the risks Cocaine Anonymous and Caduceus for Recovering Physi- and consequences of drug experimentation, abuse and cians are usually required. Ninety AA meetings in 90 days addiction.104 Ideally, more medical schools and teaching has been a time-honored successful program for those new hospitals will hire faculty specializing in addiction medi- in recovery. cine who can conduct teaching rounds with students. This type of activity would bring more stature and signal more HISTORY OF ALCOHOL AND DRUG ABUSE importance to this activity. Drug and alcohol abuse educa- EDUCATION FOR STUDENTS tion should be part of the regular medical school curricu- Physicians know very little about addiction; medical stu- lum.33,35,37,41,43,44,46,84 Medical students can do a better job page 30 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and taking a social history and asking about alcohol and drugs programs depends on the qualities of the student repre- if they are honest with themselves about their own alcohol sentative, support of administration and faculty, assistance 38 and drug use. from the state physician health program and cooperation with treatment programs.15,16 The goals of the AIMS pro- 15,16 MEDICAL STUDENT INTERVENTION FOR gram include: DRUGS AND ALCOHOL Many medical schools over the years have simply not 1. To provide compassionate assistance to chemically de- known what to do with addicted students. They have dealt pendent students before they are irreversibly harmed; with the problem in a traditional manner with disciplinary 2. To provide help in a way that fully protects the rights action and even suspension from school, when a nontradi- of impaired students to receive treatment in strictest tional approach of rehabilitation and return to school may confidence; be needed.67 Other schools have not acknowledged the 3. To assure that recovering students are able to continue fact that a problem even exists.68 Medical students need their medical education without stigma or penalty; to know how to respond when they are concerned about and a fellow student or colleague. Only a minority of medical 4. To protect patients and others from the harm that may 15 students acknowledge that there is a policy for substance be caused by chemically dependent students. abuse at their medical school.2 A 1990 study suggested that interpersonal intervention with alcohol abuse may meet In this program, evaluation of students by self-referral or with resistance.1 Most medical students want students de- intervention is performed by addictionologists through pendent on alcohol and marijuana to receive treatment, an extensive assessment and the recommendation of ap- but termination from school for those dependent on illicit propriate care.15 Aftercare is managed by the state’s phy- drugs.2 Students are reluctant to report a classmate for fear sician health program, which provides ongoing advocacy 12 15 of disciplinary action rather than confidential treatment. for the student. This program has been approved by the American Medical Association and other such programs Medical schools need programs specifically aimed at medi- around the country have been modeled after the AIMS 36,37,39,43,56 15 cal students for intervention and harm reduction. Program. Obstacles to the development of this program 15 Schools need clear-cut written guidelines and policies that have been: conform to the Liaison Committee on Medical Educa- tion.42 As of 2005, 48 states and the District of Columbia 1. Belief that SUDS is not a problem at that school; 98 have physician health programs. 2. Belief that chemically dependent students should be dismissed from school; Dalhousie University Faculty of Medicine in Nova Scotia 3. Belief that student identification and treatment will developed one of the first medical student support pro- not be confidential; grams in North America in the early 1980s.20,21,22 This pro- 4. Willingness of students to identify classmates that may gram was designed for early intervention and has served be chemically dependent; and as a model for subsequent programs worldwide.20,21,22 The 5. Reluctance of medical students to report the personal 15 program is called the PIETA Program (Pieta means com- affairs of other students. 20,21,22 passion). The University of Sherbrooke Faculty of Medicine in The first program in the United States for identifying and Quebec developed a program in which medical students treating medical students addicted to drugs was developed received weekend training as peer-counselors and were ac- 15,16 20 at the University of Tennessee in 1983. The program is cessible to other classmates for problems. called the AIMS Program (Aid for the Impaired Medical Student) and was designed “to provide confidential treat- Medical schools need programs to identify students with ment for chemically dependent medical students, to as- SUDS.5,57 Intervention needs to be encouraged with sure that recovering students are able to resume their edu- compassionate, confidential policies that aid impaired cation and to protect patients and others from the harm students.5 Self-reporting needs to be encouraged in a that may be caused by impaired students.”15,16 The AIMS way that is not punitive.5 Early identification, assessment, Council, composed of health professionals and elected treatment services and rehabilitation are important for 15 29,30,46 medical students, run the program. The success of such medical students. journal of medical licensure and discipline vol 95 number 3 2009 page 31
SUMMARY Before and During Medical School (Letter to the Edi- According to a 1990 study, more than half of medical stu- tor). Arch Intern Med 1991; 151:196, 198). dents with alcohol problems seek help.7 Although treat- 5. Schwartz, R.H., Lewis, D.C., Hoffman, N.G., Kyriazi ment for abuse and addiction are possible, the real answer ,N.: Cocaine and Marijuana Use by Medical Students is prevention by education.8 Education of medical students Before and During Medical School. Arch Intern Med about the disease concept of addiction, treatment of abuse 1990; 150:883-86. and addiction in their patients and prevention of their own 6. Conard, S., Hughes, P., Baldwin, D.C., Achenbach, abuse and addiction is critical and must be improved. K.E., Sheehan, D.V.: Cocaine Use by Senior Medical Students. Am J Psychiatry 1989; 146:382-83. Medical schools need educational programs to identify 7. Johnson, N.P., Michels, P.J., Thomas, J.C.: Screening those students at risk for abuse and addiction, information Tests Identify The Prevalence of Alcohol Use Among on the disease concept of addiction, screening mecha- Freshman Medical Students and among Students’ nisms, referral sources, treatment capabilities, counseling Family of Origin. Journal of the South Carolina Medi- and support to complete medical school in a confidential, cal Association 1990; 86(1):13-4. compassionate manner.12 Medical students need a mech- 8. Huang, L.Y.: Smoke and Spirits: The Substance Abuse anism to complete treatment that is satisfactory with the Dilemma. JAMA 1998; 280(13):1190. medical school and state physician health program, but 9. Mangus, R.S., Hawkins, C.E., Miller, M.J.: Tobacco also affordable. Students need to be made aware that those and Alcohol Use Among 1996 Medical School Grad- who satisfactorily complete treatment have a good prog- uates. JAMA 1998; 280(13): 1192-93, 1195. nosis and practice satisfying careers.12,17,84 The success rate 10. Majary, M.A., Kawachi, I.: The International Tobacco is high and most physicians are motivated by the threat Strategy. JAMA 1998; 280 (13): 1194-95. of losing their license. Medical students with an addiction 11. Newbury-Birch, D., White, M., Kamali: Factors Influ- can usually continue their education after satisfactorily encing Alcohol and Illicit Drug Use Amongst Medi- completing treatment and practice medicine. cal Students. Drug and Alcohol Dependence 2000; 59:125-30. AUTHOR AFFILIATIONS 12. Croen, L.G., Woesner, M., Herman, M., Reichgott, Daniel M. Avery, M.D., Clinical Associate Professor of M.: A Longitudinal Study of Substance Use and Psychiatry and Behavioral Medicine, University of Alabama Abuse in a Single Class of Medical Students. Acad School of Medicine. Gabriel H. Hester, M.D., Resident Med 1997; 72:376-81. in Surgery, Portsmouth Naval Hospital, Portsmouth, Va. 13. Pickard, M., Bates, L., Greig, H., Saint, D.: Alcohol Rane McLaughlin, M.D., Resident in Internal Medicine, and Drug Addiction in Second-Year Medical Students Baptist Medicine Centers, Birmingham, Ala. Gregory E. at the University of Leeds. Medical Education 2000; Skipper, M.D., Fellow, American Society of Addiction 34:148-50. Medicine, and Medical Director, Alabama Physician 14. Bunch, W.H., Storr, C.L., Hughes, P.H., Baldwin, Health Program, Medical Association of the State of D.C.: Substances Use by Surgical Residents and Stu- Alabama. dents Entering Surgery. J Surg Res 1996; 61:108-12. 15. Ackerman, T.F., Wall, H.P.: A Programme for Treat- REFERENCES ing Chemically Dependent Medical Students. Medi- 1. Clark, D.C., Daugherty, S.R.: A Norm-Referenced cal Education 1994; 28:40-6. Longitudinal Study of Medical Student Drinking Pat- 16. Aid for the Impaired Medical Student Program terns. Journal of Substance Abuse 1990, 2:15-37. (AIMS) at the University of Tennessee Health Scienc- 2. Baldwin, D.C., Hughes, P.H., Conard, S.E., Storr, es Center. Available at http://www.utmem.edu/Medi- C.L., Sheehan, D.V.: Substance Abuse Among Senior cine/StudentAffairs. 4/26/09. Medical Students: A Survey of 23 Medical Schools. 17. Flaherty, J.A., Richman, J.A.: Substance Use and Ad- JAMA 1991; 265 (16):2074-78. diction Among Medical Students, Residents and Phy- 3. Milman, D.H., Anker, J.L.: Medical Students’ Atti- sicians. Psychiatric Clinics of North America 1993; tudes Toward Cocaine Use (Letter to the Editor). Am 16(1):189-97 J Psychiatry 1989; 146:1234. 18. Dilts, S.L., House, R.M., Arthur, W.R., Hurley, M.E.: 4. Schwartz, R.H., Lewis, D.C., Hoffman, N.G., Kyriazi, Incidence of Alcohol Abuse in the Parents of Medical N.: Cocaine and Marijuana Use by Medical Students Students. J Am Coll Health 1993; 42(2):82-4. page 32 journal of medical licensure and discipline vol 95 number 3 2009 ciety of Correctional Physicians has for years dictated that cause of state laws that shield the identities of doctors and Students’ Decision to report Classmates Impaired 354(17):1852. by Alcohol or Other Drug Abuse. Acad Med 1992; 33. Newbury-Birch, D., Walshaw, D., Kamali, F.: Drink 67(12):866. and Drugs: From Medical Students to Doctors. Drugs 20. Jones, D.: Support Programs Help Medical Students and Alcohol Dependence 2001; 64:265-70. Stop Addiction Before It Starts. Can Med Assoc J 1993; 34. Seshadri, S.: Substance Abuse Among Medical Stu- 149(1):80-1. dents and Doctors: A Call for Action. Natl Med J In- 21. Pieta Program at Dalhousie University Faculty of dia 2008; 21(2):57-9. Medicine. Available at http://pieta.medicine.dal.ca. 35. Wyatt, S.A., Dekker, M.A.: Improving Physician and 4/26/09 Medical Student Education in Substance Use Disor- 22. Residents’ Pieta Program at Dalhousie University ders. J Am Osteopath Assoc 2007; 107(suppl 5):ES27- Faculty of Medicine. Available at http://postgraduate. ES38. medicine.dal.ca. 4/27/09. 36. Di Pietro, M.C., Doering-Silveira, E.B., Oliveira, 23. Korkes, F., Costa-Matos, A., Gasperini, R., Reginato, M.P.T., Rosa-Oliveira, L.Q., Da Silveira, D.X.: Factors P.V., Perez, M.D.C.: Recreational Use of PDE5 Inhib- Associated with the Use of Solvents and Cannabis by itors by Young Healthy men: Recognizing This Issue Medical Students. Addictive Behaviors 2007: 32:1740- Among Medical Students. J Sex Med 2008; 5:2414- 1744. 18. 37. Moulton, E.A., McMain, S.S.: An Iceberg in Spring- 24. Richman, J.A.: Occupational Stress, Psychological field: Using the Humanities to Explore and Challenge Vulnerability and Alcohol-Related Problems Over the Attitudes of General Practice (GP) Educators To- Time in Future Physicians. Alcohol Clin Exp res 1992; wards the Management of GP Registrars with Sub- 16(2):166-71. stance Abuse Problems. Med Educ 2004; 38:218-222. 25. Westermeyer, J.: Substance Use Rates Among Medi- 38. Ritson, B.: Alcohol and Medical Students (Commen- cal Students and Resident Physicians. JAMA 1991; tary). Med Educ 2001; 35:622-23. 265(16):2110-11. 39. Wallace, P.: Medical Students, Drugs and Alcohol: 26. Kjobli, J., Tyssen, R., Vaglum, P., Aasland, O., Time for Medical Schools to Take the Issue Seriously. Gronvold, N.T., Ekeberg, O.: Personality Traits and Med Educ 2000; 34:86-87. Drinking to Cope as Predictors of Hazardous Drink- 40. Kuma, P., Basu, D.: Substance Abuse by Medical ing Among Medical Students. J Stud Alcohol 2004; Students and Doctors. J Indian Med Assoc 2000; 65:582-85. 98(8):447-52. 27. Horowitz, A., Galanter, M., Dermatis, H., Franklin, J.: 41. Conard, S., Hughes, P., Baldwin, D.C., Achenbach, Use of and Attitudes Toward Club Drugs by Medical K.E., Sheehan, D.V.: Substance Use by Fourth-Year Students. J Addict Dis 2008; 27(4):35-42. Students at 13 U.S. Medical Schools. J Med Educ 28. Shyangwa, P.M., Joshi, D., Lal, R.: Alcohols and Oth- 1988; 63:747-58. er Substance Use/Abuse Among Junior Doctors and 42. Rowley, B.D., Baldwin, D.C.: DATAGRAM: Sub- Medical Students in a Teaching Institute. JNMA 2007; stance Abuse Policies and Programs at U.S. Medical 46(31):126-9. Schools. J Med Educ 1988; 63:759-61. 29. Boland, M., Fitzpatrick, P., Scallan, E., Daly, L., Her- 43. Carvalho, K.A.M., Sant’ Anna, M.J., Coates, V., ity, B., Horgan, J., Bourke, G.: Trends in Medical Stu- Omar, H.A.: Medical Students: Abuse of Psychoactive dent Use of Tobacco, Alcohol and Drugs in an Irish Substances and Sexuality Aspects. Int J Adolesc Med University, 1973-2002. Drug Alcohol Depend 2006; Health 2008; 20(3): 321-28. 85:123-28. 44. Varga, M., Buris, L.: Drinking Habits of Medical Stu- 30. Dheeraj, R., Gaeta, J., Girotra, S., Pal, H.R., Araya, dents Call for Better Integration of Teaching About R.: Substance Use Among Medical Students: Time to Alcoholism into the Medical Curriculum. Alcohol Reignite the Debate? Natl Med J India 2008; 21:75-8. and Alcoholism 1994; 29(5):519-6. 31. Da Silveira, D.X., Rosa-Oliveira, L., Di Pietro, M., 45. Ghodse, A.H., Howse, K.: Substance Use of Medical Niel, M., Doering-Silveira, E., Jorge, M.R.: Evolu- Students: A nationwide Survey. Health Trends 1994; tional Pattern of Drug Use by Medical Students. Ad- 26(3):85-8. dictive Behaviors 2008; 33:490-95. 46. Forney, P.D., Forney, M.A., Fischer, P., Richards, J.W.: 32. Lowenfels, A.B.: Unprofessional Behavior Among Sociocultural Correlates of Substance Use Among
journal of medical licensure and discipline vol 95 number 3 2009 page 33 19. Bro wn, R.L., Edwards, J.A., Rounds, L.A.: Medical Medical Students (Letter to the Editor). NEJM 2006; Medical Students. J Drug Education 1988; 18(2): 97- 62. Nahas, G.G., Frick, H.C., Manger, W.M., Hyman, G.: 108. Drug Use Among Physicians and Medical Students 47. Anonymous: Autobiography of an Alcoholic Medi- (Letter to the Editor). N Eng J Med 1987; 316(11): cal Student. Michigan Medicine 1982; 81(24):270-1, 694-5. 278. 63. Rakatansky, H.: Drug Use Among Physicians and 48. Lipp, M.R., Benson, S.G., Taintor, Z.: Marijuana Use Medical Students (Letter to the Editor). N Eng J Med by Medical Students. Amer J Psychiat 1971; 128(2):99- 1987; 316(11): 694-5. 104. 64. McAuliffe, W.E.: Drug Use Among Physicians and 49. Thomas, R.B., Luber, S.A., Smith, J.A.: A Survey of Medical Students (Letter to the Editor). N Eng J Med Alcohol and Drug Use in Medical Students. Dis Nerv 1987; 316(11):695 Syst 1977; 38(1):41-3. 65. Baldwin, D.C.: Symposium: Substance Use and 50. Watkins, C.: Use of Amphetamine by Medical Stu- Abuse Among Medical Students. Proceedings of the dents. SMJ 1970; 63(8):923-9. Annual Conference: Research in Medical Education 51. Grother, M.H.: The Use of Marijuana by Medical 1987; 26:275-82. Students. J Kans Med Soc 1973; 74(4):142-4. 66. Achenbach, K.E.: Medical Student Substance Use 52. Smith, S.N., Blachly, P.H.: Amphetamine Use by and Abuse. Proceedings of the Annual Conference: Re- Medical Students. J Med Educ 1966; 41:167-70. search in Medical Education 1987; 26:275-82. 53. Polakoff, P.L., Lowinger P: Do Medical Students “Turn 67. Eckenfels, E.J.: Medical Student Substance Use and On?” Comprehensive Psychiatry 1972; 13(2):185-8. Abuse. Proceedings of the Annual Conference: Research 54. Lipp, M., Tinkenberg, J., Benson, S., Melges, F.: in Medical Education 1987; 26:275-82. Medical Student Use of Marijuana, Alcohol, and 68. Rowley, B.D.: Medical Student Substance Use and Cigarettes: A Study of Four Schools. The International Abuse. Proceedings of the Annual Conference: Re- Journal of the Addictions 1972; 7(1):141-52. search in Medical Education 1987; 26:275-82. 55. Anonymous: Student Impairment Programs: A Look 69. Maddux, J.F., Hoppe, S.K., Costello, R.M.: Psychoac- Around the State. J Ohio State Medical Association tive Substance Use Among Medical Students. Am J 1988; 84(1):69-71. Psychiatry 1986; 143:187-91. 56. Forney, M.A., Ripley, W.K., Forney, P.D.: A Profile 70. McAuliffe, W.E., Rohman, M., Wechsler, H.: Alco- and Prediction Study of Problem Drinking Among hol, Substance Use, and Other Risk-Factors of Impair- First-Year Medical Students. The International Journal ment in a Sample of Physicians-In-Training. Advances of the Addictions 1988; 23(7):767-79. in Alcohol and Substance Abuse 1984; 4(2):67-87. 57. McAuliffe, W.E., Santangelo, S., Magnuson, E., So- 71. Lewis, D.C.: Doctors and Drugs. N Eng J Med 1986; bol, A., Rohman, M., Weissman, J.: Risk Factors of 315(13):826-8. Drug Impairment in Random Samples of Physicians 72. Fassler, D.: Views of Medical Students and Residents and Medical Students. The International Journal of on Education in Alcohol and Drug Abuse. J Med Educ Addictions 1987; 22(9):825-41. 1985; 60:562-4. 58. Anonymous: The Sick Physician: Impairment by Psy- 73. McAuliffe, W.E., Rohman, M., Santangelo, S., Feld- chiatric Disorders, Including Alcoholism and Drug man, B., Magnuson, E., Sobol, A., Weissman, J.: Psy- Dependence. JAMA 1973: 223(6): 684-7. choactive Drug Use Among Practicing Physicians and 59. Clark, D.C.: Alcohol and Drug Use and Mood Disor- Medical Students. N Eng J Med 1986; 315(13): 805- ders Among Medical Students: Implications for Physi- 10. cian Impairment. QRB 1988; 14(2): 50-4. 74. Epstein, R., Eubanks, E.E.: Drug Use Among Medi- 60. Herzog, D.B., Borus, J.F., Hamburg, P., Ott, I.L., cal Students. N Eng J Med 1984; 311(14):923. Concus, A.: Substance Abuse, eating Behaviors, and 75. Scharrer, A.J.: A Dangerous Mix: Alcohol, Drugs and Social Impairment of Medical Students. J Med Educ Medical Students. Illinois Medical J 1986; 169(4):244 1987; 62:651-7. 76. McAuliffe, W.E., Rohman, M., Fishman, P., Fried- 61. Pittman, J.A., Scott, C.W: University of Alabama man, R., Wechsler, H., Soboroff, S.H., Toth, D.: Psy- School of Medicine Policy on Impaired Students and choactive Drug Use by Young and Future Physicians. Faculty with Special Reference to Substance Abuse. J Health Soc Behav 1984; 25(1): 34-54. The Alabama Journal of Medical Sciences 1988; 77. Grafton, W.D., Bairnfather, L.E.: Use of Psychoactive 25(1):85-90. Substances by Medical Students: A Survey. J of the page 34 journal of medical licensure and discipline vol 95 number 3 2009 Louisiana State Medical Society 1991; 143(6): 27-9. American Society of Forensic Obstetricians and Gyne- 78. Singh, G., Singh, R., Jindal, K.C.: Drug Use Among cologists. 2000. Physicians and Medical Students. Indian J Med Re- 97. Avery, D.M., Daniel, W.D.: The Impaired Physician. search 1981; 73:594-602. The American College of Obstetricians and Gynecol- 79. Singh, G., Singh, R.P.: Drugs on a Medical Camps: I. ogists. 2000. Drug Use Among Medical Undergraduates. Drug and 98. DuPont, R.L., McLellan, A.T., Carr, G., Gendel, M., Alcohol Dependence 1979; 4(5):391-8. Skipper, G.E.: How are Addicted Physicians Treated? 80. Avery, D.M.: Professional Relevance and Societal A National Survey of Physician Health Programs. Skills as Related to Addiction Medicine. Alice McLean JSAT 2009; 37:1-7. Stewart Educational Endowment in Addiction Medi- 99. McLellan, A.T., Skipper, G.E., Campbell, M., Du- cine for U.S. Medical Students. University of Alabama Pont, R.L.: Five Year Outcomes in a Cohort Study of School of Medicine. 2007. Physicians Treated for Substance Abuse Disorders in 81. Thornhill, R., M.S.: Alabama Physician Wellness the United States. BMJ 2008; 337: a2038. Committee. Medical Association of the State of Ala- 100.Galanter, M.: Postgraduate Medical Fellowships in Al- bama Annual Meeting. Montgomery, AL. April, 2009 coholism and Drug Addiction. The Center for Medical 82. Morrison, S.F.: Resident Handbook. University of Ala- Fellowships in Alcoholism and Drug Abuse. 1995. bama in Birmingham Medical Center. 1992. 101.Geller, G., Levine, D.M., Mamon, J.A., Moore, R.D., 83. Avery, D.M., Daniel, W.D.: Guarding the Henhouse. Bone, L.R., Stokes, E.J.: Knowledge, Attitudes, and Re- Obstet Gynecol Surv. 2001. ported Practices of Medical Students and House Staff 84. Avery, D.M.: Prevention of Impaired Healthcare Regarding the Diagnosis and Treatment of Alcoholism. Professionals. The Medicolegal OB/GYN Newsletter, JAMA 1989; 261 (21):3115-20). 2005 102.Mooney, A.J., Eisenberg, A., Eisenberg, H.: The Recov- 85. Avery, D.M.: The Impaired Physician: All in the Fam- ery Book. Workman Publishing Company, Inc. New ily. The Medicolegal OB/GYN Newsletter. 1998. York, 1992. 86. Deary, I.J.: Need Medical Education be Stressful? 103.Fazzio, L., Galanter, M., Dermatis, H., Levounis, P.: Medical Education 1994; 28:55-7 Evaluation of Medical Student Attitudes Toward Alco- 87. A New Vision. University of Alabama in Birmingham holics Anonymous. Subst Abus 2003; 24(5):175-85 Center for Psychiatric Medicine. 1995. 104. Gunn, N., White, C., Srinivasan, R.: Primary Care as 88. Talbott, G.D., Gallegos, K.V., Wilson, P.O., Porter, Harm Reduction for Injection Drug Users. JAMA 1998; T.L.: The Medical Association of Georgia’s Impaired 280 (13):1191,1195. Physician Program. JAMA 1987; 257:2927-2939. 89. Lowinson, J.H., Ruiz, P., Millman, R.B., Langrod, J.G.: Substance Abuse: A Comprehensive Textbook.1992. 90. Cantrella, M.: Physicians and Other Health Profes- sionals in Principles of Addiction Medicine. 1994. 91. Avery, D.M.: The Impaired Physician: Intervention. The Medicolegal OB/GYN Newsletter. 1996 92. Avery, D.M.: The Impaired Physician: Rehabilita- tion Programs. The Medicolegal OB/GYN Newsletter. 1996. 93. Avery, D.M.: The Impaired Physician: Effects on the Family. The Medicolegal OB/GYN Newsletter. 1998. 94. Avery, D.M.: The Impaired Physician: Twelve Step Recovery Programs. Forum—NC Medical Board, 1998. 95. Avery, D.M.: The Impaired Physician: Workplace Drug Testing for Physicians. The Medicolegal OB/ GYN Newsletter. 1997. 96. Avery, D.M., Daniel, W.D., Dirksen, T.R., Gropper, J.M., McCormick, M.B.: The Impaired Physician. The
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from our international exchanges
Australia Reprinted from the Medical Practitioners Board of Good Medical Practice: A Code of Conduct for Doctors in Australia
The Board has adopted a code of conduct for doctors in Australia that defines clear, nationally consistent standards of medical practice. Good Medical Practice: A Code of Con- duct for Doctors in Australia replaces the Victorian Good Medical Practice issued by the Board in 2006. The Aus- tralian Medical Council (AMC) developed this code on behalf of all state and territory medical boards. The AMC will recommend the code to the Medical Board of Australia when it is established.
Subject to legislative arrangements in place in each Australian state and territory, individual medical boards will now con- sider adopting the code, or endorsing it in principle, ahead of the introduction of national medical registration. The code was developed by an expert working group established by the AMC and chaired by former Victorian Board President Dr. Joanna Flynn. This group included strong clinical rep- resentation (including junior doctors and medical students), medical regulators and educators, medical and health ad- ministrators, the AMA, rural and indigenous practitioners, together with consumers and community groups. The code was developed through an extensive national consultation process implemented during 2008 and 2009, which was sup- ported financially by the Commonwealth Department of Health and Ageing. The final code has received widespread support from the community and the profession.
The Board will now apply this code as the standard against which professional conduct in Victoria will be measured, at least until national medical registration is introduced in July 2010. The Board expects all doctors registered to prac- tice medicine in Victoria to be familiar with the contents of the code. The code is available electronically on the Board’s website at www.medicalboardvic.org.au. If you would like a hard copy, please contact the Board by e-mail at info@ medicalboardvic.org.au and include the postal address to which you would like your copy sent, or make your request by telephone on (03) 9655 0500.
page 36 journal of medical licensure and discipline vol 95 number 3 2009
Victoria Bulletin, September physician population should exhibit professionalism. 2009
Canad a Good Medical Practice Canada
The Medical Council of Canada and the Federation of Medical Regulatory Authorities of Canada (FMRAC) are launching a new initiative to develop a Good Medi- cal Practice manual. The Good Medical Practice Steering Committee and Working Group will produce a document that describes how physicians demonstrate their continu- ing professional competence to the public. This type of work has already been completed in the United States, United Kingdom, Australia and New Zealand.
Dr. Jeffrey Turnbull, chief of staff for the Ottawa Hospital, and Sister Elizabeth Davis will lead the initiative as co- chairs of the Good Medical Practice Steering Committee. Other Steering Committee members include Dr. Bryan Ward (FMRAC), Dr. Fleur- Ange Lefebvre (FMRAC), Dr. Ian Bowmer (Medical Council of Canada), Dr. Rocco Gerace (Medical Council of Canada) and Dr. Yves Robert (FMRAC).
The Working Group will be comprised of Dr. Nick Bus- ing (Association of Faculties of Medicine of Canada), Dr. Harleena Gulati (Canadian Association of Internes and Residents), Dr. Sarah Kredentser (College of Family Phy- sicians of Canada), Dr. James Sproule (Canadian Medi- cal Protective Association), Dr. John Wootton (Society of Rural Physicians of Canada), Dr. Jeff Blackmer (Canadian Medical Association), Dr. Ken Harris (Royal College of Physicians and Surgeons of Canada), as well as Dr. Bow- mer and Dr. Turnbull.
The Good Medical Practice manual will utilize many of the concepts expressed in the CanMED roles framework. This framework, developed by the Royal College of Physicians and Surgeons of Canada, looks at the qualities required of physicians and uses this information as building blocks for the development of medical curriculum. In contrast, the Good Medical Practice includes public consultation to find out what qualities are required of physicians and how the
journal of medical licensure and discipline vol 95 number 3 2009 page 37
This information will be translated into a comprehensive international medical graduates (IMGs) wishing to enter guide for physicians in practice. In addition to building on the Canadian medical system. The NAC is provided con- the CanMED roles framework, the Good Medical Practice tinued funding through Health Canada. The NAC has manual will build on the Canadian Medical Association’s decided to focus its efforts first on developing a national Code of Ethics, the Collège des médecins du Québec’s clinical examination targeted to international medical Code of Ethics of Physicians, as well as work already un- graduates applying for postgraduate training. dertaken by the College of Family Physicians of Canada. The June session also included a review of the governance Dr. Ian Bowmer, executive director of the Medical Coun- structure of the National Assessment Collaboration Cen- cil of Canada, explained the rationale for developing the tral Coordinating Committee (NAC3). This group will Good Medical Practice manual: “The relationship between report to the Medical Council of Canada (MCC) and will physician and patient is one of extraordinary trust. As a pro- be responsible for the national clinical examination. Later fession, we must continually demonstrate that trust, and be this summer, the MCC will facilitate a teleconference worthy of that trust.” among the program directors of the international medical graduate programs. The teleconference will result in this Dr. Bowmer also described how he believes a Good Medi- group selecting their representatives for the NAC3. As per cal Practice manual will be used by practicing physicians. the terms of reference of the NAC3, three representatives “This is supposed to be a comprehensive, practical guide from this group will sit on the committee. that I hope will be a source of inspiration for physicians. When physicians read this guide, what they read should After this teleconference and once the membership of reflect their aspirations for the medical profession, how the NAC3 has been finalized, it will approve the mem- they want to be perceived as physicians and how we can bership of the clinical examination test committee, called reaffirm the dialogue and expectations between physicians the NAC OSCE test committee. It is named as such since and the Canadian public.” the specific type of clinical examination is an Objective Structured Clinical Examination. The NAC OSCE test The Good Medical Practice Steering Committee first met committee’s responsibilities will include creating the blue- on July 2, 2009. The Steering Committee discussed setting print for the examination, developing and validating the up a timeline for the initiative and developed an agenda content and overseeing the proof of concept examination for the Working Group. The Steering Committee also de- for the NAC OSCE. cided that each organization on the Working Group would nominate a public member to sit on the Steering Commit- Each IMG program that wants to provide the initial ver- tee to provide a public perspective on the elaboration of sion (proof of concept) of the clinical examination in 2010 the Good Medical Practice manual. The Steering Com- will have the opportunity to do so. Those who will offer mittee will be responsible for creating the first draft of the the proof of concept will be required to use a common manual based on current available materials. examination format. The MCC will assist with the train- ing of standardized patients for the clinical examination, The Steering Committee also discussed the purpose of the as well as with the development of clinical stations and document, and decided that it would be used as a general with psychometric analysis. principle document, directed to the public, that will assist in engendering public trust in physician competence. The In September 2009, the Medical Council of Canada will document, it was decided, would not be a licensing/regu- be hosting a workshop for Royal College specialty program latory document. directors. This workshop will be held during the Royal Col- lege of Physicians and Surgeons of Canada’s International Update on the National Assess- Conference on Residency Education in Victoria, B.C. ment Collaboration
While the NAC will continue to develop the NAC OSCE Members of the National Assessment Collaboration in the coming months, ongoing attention will also be pro- (NAC) met on June 29, 2009, in Ottawa for an update vided on the development of an assessment for physicians on the initiative’s progress. The purpose of the NAC is to seeking entry into medical practice. This assessment will be create a more streamlined process for the assessment of for individuals who were successful at the NAC clinical ex-
journal of medical licensure and discipline vol 95 number 3 2009 page 37 19. Bro wn, R.L., Edwards, J.A., Rounds, L.A.: Medical Medical Students (Letter to the Editor). NEJM 2006; amination and will feature an observed clinical practice. involvement of all colleges. It still requires considerable
ongoing work and the constructive comments we received Reprinted from the Medical Council of Canada Newslet- have been very useful in shaping the proposal further. So ter, September 2009 where to next? At the time of writing, submissions on the two initiatives have just closed and are about to be fully New Zealand analyzed. The Council will discuss feedback from all the consultation, as well as written submissions, at its August During May, Council members and staff took as many meeting. We are meeting with the colleges and branch ad- opportunities as possible to speak to doctors about two visory bodies in August and also wish to meet with profes- major initiatives: periodic assessment of performance and sional groups such as the New Zealand Medical Associa- new supervision arrangements. We have had very valu- tion, the Association of Salaried Medical Specialists, and able feedback from the profession and appreciate the good the Resident Doctors Association. To make progress with number of doctors who have turned out for the road show the periodic assessment of performance proposal, we need meetings, often on some pretty chilly evenings. all the colleges to be involved, volunteers who are willing to assess and to be assessed, and robust qualitative research Enhancing doctors’ clinical on the process and its effects. We also need to work closely practice with those colleges and associations already involved in
practice assessments to make best use of their experience. The Council is proposing that a periodic assessment of per- formance be incorporated into the continuing professional Reprinted from the Medical Council of New Zealand development programs of medical colleges and branch advi- Medical Council News, August 2009 sory bodies. This would be a supportive and collegial review of a doctor’s practice by two peers. The primary purposes of United States the visits would be to enhance the clinical practice of most 2010 IAMRA Conference on Medi- of us and also to help identify and remedy situations where cal Regulation
a colleague’s practice has become unsafe. IAMRA’s 9th conference on medical regulation will take Supporting doctors new to New place Sept. 26-29, 2010, in Philadelphia, Pa., U.S.A. Zealand IAMRA is partnering with the Federation of State Medical We also are trying to establish simpler supervision Boards, the National Board of Medical Examiners and the arrangements to support doctors new to New Zealand Educational Commission for Foreign Medical Graduates and provide them with the information needed to to offer a very exciting and innovative program on “Best adjust to a new country and health service. Under the Practices in Medical Licensure.” The conference will Health Practitioners’ Competence Assurance Act 2003, include interactive programs on registration and licen- the Council is required to have in place supervision sure, currency of competence and revalidation/mainte- arrangements that, as far as possible, ensure safe practice. nance of licensure, ethical guidance, and complaints and After the discussions from the first round of consultation, resolutions. A pre-conference workshop for those newer to we are proposing another method of supervision as an medical regulation is planned for Sunday, Sept. 26. Addi- alternative to the one-on-one supervision available now. tional information will be available in the coming weeks. In this new option, a service would be accredited for Please reserve these dates on your calendar if you are inter- supervision. The Council would recognize that the doctor ested in attending the conference. For more information, was working in an accredited service and would receive please visit www.iamra.com. periodic reports from the service. The service may be a clinical practice group within a DHB, across two or more DHBs, or a general practice-organized group.
Next steps The meetings around the country have given us valuable feedback and insights into the proposals. For the peri- odic assessment of performance to progress we need the page 38 journal of medical licensure and discipline vol 95 number 3 2009
from our member board exchanges
KENTUCKY cian to inform the patient of the option to have a third STANDARDS OF ACCEPTABLE AND PREVAIL- party present. This precaution is essential regardless of ING MEDICAL PRACTICE RELATING TO PHYS- physician/patient gender.
ICAL EXAMINATIONS BY PHYSICIANS 3. The physician should individualize his/her approach The Board has determined that the following principles to physical examinations so that the patient’s appre- constitute the standards of acceptable and prevailing med- hension, fear and embarrassment are diminished as ical practice relating to physical examinations by physi- much as possible. An explanation of the necessity of cians. a complete physical examination, the components of that examination and the purpose of disrobing may be Patient complaints of sexual misconduct by physicians are necessary in order to minimize the patient’s apprehen- the most sensitive and difficult the Board investigates. The sion and possible misunderstanding. incidents are rarely witnessed. Allegations of sexual mis- conduct are particularly difficult to prove and can lead to 4. The physician and his/her staff should exercise the public humiliation for both the patient and the physician same degree of professionalism and caution when involved. performing diagnostic procedures (i.e., electrocardio- grams, electromyograms, endoscopic procedures and Physicians will, of course, continue to routinely perform radiological studies, etc.) as well as surgical procedures physical examinations in the course of patient care out of and post-surgical follow-up examinations when the pa- medical necessity and professional responsibility. In order tient is in varying stages of consciousness. to prevent misunderstandings and protect physicians and their patients from allegations of sexual misconduct, the 5. The physician should be alert to suggestive or flirta- Board offers the following opinion regarding physical ex- tious behavior or mannerisms on the part of the pa- aminations by physicians: tient and should not put him or herself in a compro- mising position. 1. Maintaining patient dignity should be foremost in the physician’s mind when undertaking a physical exami- 6. The physician shall not exploit the physician/patient nation. The patient should be assured of adequate au- relationship for sexual or any other purposes. More- ditory and visual privacy and should never be asked over, such an allegation against a physician constitutes to disrobe in the physician’s immediate presence. grounds for investigation on the basis of alleged uneth- Examining rooms should be safe, clean and well- ical behavior. Physicians should also be aware that any maintained, and should be equipped with appropriate failure to conform to the principles of medical ethics furniture for the examination and treatment (examin- of the American Medical Association constitutes un- ing table, chairs, etc.). Gowns, sheets and/or other ap- professional conduct, in violation of Board statutes. propriate apparel should be made available to protect patient dignity and decrease embarrassment to the Reprinted from the Kentucky Board of Medical Licensure patient while promoting a thorough and professional Newsletter, Summer 2009 examination. NORTH CAROLINA 2. A third party should be readily available at all times POLICY COMMITTEE OFFERS NEW POSITION during a physical examination, and it is suggested that STATEMENT ON TELEMEDICINE the third party be actually present when the physician performs an examination of the sexual and reproduc- The Policy Committee of the North Carolina Medi- tive organs or rectum. It is incumbent upon the physi- cal Board has drafted a proposed position statement on journal of medical licensure and discipline vol 95 number 3 2009 page 39 19. Bro wn, R.L., Edwards, J.A., Rounds, L.A.: Medical Medical Students (Letter to the Editor). NEJM 2006; telemedicine for consideration and possible adoption by performed face-to-face. Other examinations may also the full Board. The Policy Committee discusses position be considered appropriate if the physician is at a dis- statements in public sessions during regularly scheduled tance from the patient, but a licensed health care pro- Board meetings. In addition, proposed statements are fessional is able to provide various physical findings published on the Board’s website and in the Forum be- that the physician needs to complete an adequate as- fore they are considered by the full Board. This allows sessment. On the other hand, a simple questionnaire licensees and other interested parties the opportunity to without an appropriate examination may be a viola- provide written comments that may influence the final tion of law and/or subject the physician to discipline version presented for Board action. The full text of the pro- by the Board. posed position statement on telemedicine appears below. • Informed Consent: The physician using telemedi- Telemedicine cine should obtain the patient’s informed consent “Telemedicine” is the practice of medicine using elec- before providing care via telemedicine services. In tronic communication, information technology or other addition to information relative to treatment, the pa- means between a physician in one location and a patient tient should be informed of the risks and benefits of in another location with or without an intervening health being treated via telemedicine, including how to re- care provider. ceive follow-up care or assistance in the event of an adverse reaction to the treatment or in the event of an The Board recognizes that technological advances have inability to communicate as a result of a technologi- made it possible for physicians to provide medical care to cal or equipment failure. The patient retains the right patients who are separated by some geographical distance. to withdraw his or her consent at any time. As a result, telemedicine is a potentially useful tool that, if employed appropriately, can provide important benefits • Physician-Patient Relationship: The physician using to patients, including: increased access to health care, ex- telemedicine should have some means of verifying that panded utilization of specialty expertise, rapid availability the person seeking treatment is in fact who he or she of patient records, and the reduced cost of patient care. claims to be. A diagnosis should be established through the use of accepted medical practices, i.e., a patient The Board cautions, however, that physicians practicing history, mental status examination, physical examina- via telemedicine will be held to the same standard of care tion and appropriate diagnostic and laboratory testing. as physicians employing more traditional in-person medi- Physicians using telemedicine should also ensure the cal care. A failure to conform to the appropriate standard availability for appropriate follow-up care and main- of care, whether that care is rendered in-person or via tele- tain a complete medical record that is available to the medicine, may subject the physician to potential discipline patient and other treating health care providers. by this Board. • Medical Records: The physician treating a patient via The Board provides the following considerations to its telemedicine must maintain a complete record of the licensees as guidance in providing medical services via telemedicine patient’s care according to prevailing telemedicine: medical record standards. The medical record serves to document the analysis and plan of an episode of • Training of Staff: Staff involved in the telemedicine care for future reference. It must reflect an appropri- visit should be trained in the use of the telemedicine ate evaluation of the patient’s presenting symptoms, equipment and competent in its operation. and relevant components of the electronic profession- al interaction must be documented as with any other • Examinations: Physicians using telemedicine tech- encounter. The physician must maintain the record’s nologies to provide care to patients located in North confidentiality and disclose the records to the patient Carolina must provide an appropriate examina- consistent with state and federal law. If the patient has tion prior to diagnosing and/or treating the patient. a primary physician and a telemedicine physician for However, this examination need not be in-person if the same ailment, then the primary physician’s medi- the technology is sufficient to provide the same in- cal record and the telemedicine physician’s record formation to the physician as if the exam had been constitute one complete patient record. page 40 journal of medical licensure and discipline vol 95 number 3 2009
• Licensure: The practice of medicine is deemed to oc- while other provisions create entirely new practices.
cur in the state in which the patient is located. There- fore, any physician using telemedicine to regularly The brief article below summarizes two significant chang- provide medical services to patients located in North es that affect licensees who are under investigation by the Carolina should be licensed to practice medicine in Board or who face an imminent public charge of miscon- North Carolina. Physicians need not reside in North duct by the Board. Carolina, as long as they have a valid, current North Carolina license. North Carolina physicians intend- WRITTEN NOTICE OF RIGHTS, RESPONSI- ing to practice medicine via telemedicine technology BILITIES to treat or diagnose patients outside of North Carolina Historically, when the Board received a complaint should check with other state licensing boards. Most against a licensee, it provided the licensee with a copy states require physicians to be licensed, and some and gave oral answers to any questions about the Board’s have enacted limitations to telemedicine practice or review process. For investigations initiated on or after require or offer a special registration. A directory of October 1, the Board will now mail or deliver in per- all U.S. medical boards may be accessed at the Fed- son written notices to licensees under investigation. The eration of State Medical Boards website: www.fsmb. notices address the licensee’s duty to cooperate with org/directory_smb.html. the Board, how the Board will communicate with the licensee and any legal counsel, the amount of time the • Fees: The Board’s licensees should be aware that third- investigation is expected to take and the licensee’s rights party payors may have differing requirements and defi- should the Board vote to take public disciplinary action. nitions of telemedicine for the purpose of reimburse- ment. PRE-CHARGE CONFERENCE FOR LICENSEES PENDING CHARGES 1) See also the Board’s Position Statement entitled Traditionally, the Board conducted informal conferences “Contact with Patients before Prescribing.” with some licensees prior to voting to initiate a public dis-
ciplinary proceeding. The new law requires the Board to 2) N.C. Gen. Stat. 90-18(c)(11) exempts from the re- provide, upon request, the licensee with the opportunity quirement for licensure: “The practice of medicine or to meet with a designated Board member. Such meetings surgery by any nonregistered reputable physician or would occur after the Board votes to charge but before surgeon who comes into this State, either in person or charges are issued and a hearing is scheduled. If a meet- by use of any electronic or other mediums, on an ir- ing is requested, it will be scheduled soon after the de- regular basis, to consult with a resident registered phy- cision to take public action. Prior to the meeting, which sician or to consult with personnel at a medical school may be telephonic or in person, the Board will provide the about educational or medical training. This proviso licensee and/or his or her legal counsel, with information shall not apply to physicians resident in a neigh- gathered in the investigation. The purpose of the meeting boring state and regularly practicing in this State.” will be to inform the licensee of the basis for the Board’s decision to charge and explain the process going forward. The Board also notes that the North Carolina General Statutes define the practice of medicine as including, Reprinted from the North Carolina Medical Board The “The performance of any act, within or without this State, Forum Newsletter, Fall 2009 described in this subdivision by use of any electronic or other means, including the Internet or telephone.” N.C. OKLAHOMA Gen. Stat.90-1.1(5)f. MEDICAL SPA AND AESTHETIC PROCEDURE GUIDELINES NCMB IMPLEMENTS CHANGES TO INVESTI- GATIVE AND DISCIPLINARY PROCESSES After much discussion and input, the Medical Board has A new law that modifies the North Carolina Medical adopted guidelines to give physicians (M.D.s) some direc- Board’s investigative and disciplinary processes took ef- tion when practicing in or considering this medical area. fect October 1. Many of the provisions codify existing These are very broad guidelines as there is no way to keep policy or interpretation of the Medical Practice Act, up with every type of laser or new procedure that comes on
journal of medical licensure and discipline vol 95 number 3 2009 page 41 19. Bro wn, R.L., Edwards, J.A., Rounds, L.A.: Medical Medical Students (Letter to the Editor). NEJM 2006; the market. The main issue is still the involvement of the • If the physician is utilizing unlicensed, trained assis- physician with the patient in the delivery of care whether tants under their control and supervision, the physi- personally done or through the supervision of another cian must be on-site (premise) before, during and after health professional. Do your research before entering into the medical treatment or procedure. any practice that may have negative consequences on your • If the physician is utilizing an Oklahoma licensed license. physician assistant (PA), the physician can delegate any of the defined medical services to that licensed PA BOARD OF MEDICAL LICENSURE AND SUPER- under general supervision, which does not require the VISION POLICY AND GUIDELINES FOR MEDI- physician to necessarily be on-site. CAL SPAS AND AESTHETIC PROCEDURES • If the physician is utilizing an Oklahoma licensed nurse, [RN, LPN, APN (advance practice nurse) or DEFINITIONS (OKLAHOMA LAW AND RULES) APN with prescriptive authority] and IF they are func- Practice of Medicine – Every person shall be regarded as tioning within the scope of their practice act, then practicing allopathic medicine within the meaning and the physician may delegate any of the defined medi- provisions of this act, who shall append to his or her name cal services to that licensed nurse under general su- the letters “M.D.”, “Physician” or any other title, letters or pervision, which may not require the physician to be designation which represent that such person is a physician, on-site. It is imperative that the physician contact the or who shall for a fee or any form of compensation diagnose Oklahoma Board of Nursing (405-962-1800) to find and/or treat disease, injury or deformity of persons in this out the nurse’s scope of practice and level of physician state by any allopathic legend drugs, surgery, manual, or supervision required. mechanical treatment unless otherwise authorized by law. • If the physician is utilizing any other Oklahoma recog- nized practitioner such as a certified micropigmentol- Doctor/Patient Relationship – Means a person has a medi- ogist or licensed aesthetist, the physician must contact cal complaint/issue, which has been addressed by the doc- the Oklahoma Department of Health (405-271-6576) tor and there is a correlation between the complaint/issue or the Board of Cosmetology (405-521-2441) respec- and the treatment/procedure performed or drug given/pre- tively and find out the scope of their practice act and scribed/dispensed. level of medical supervision required. • In no instance may a physician allow one of the afore- Surgery – The ablation or alteration of any human tissue mentioned practitioners to further delegate the medi- by any means including but not limited to the use of sharp cal service to another practitioner. surgery, heat, cold, abrasion, laser, chemicals, injection/ • Physicians who are medical directors for one or mul- placement of substances subcutaneous, or the use of FDA tiple medical spa and aesthetic facilities are subject to approved devices that can only be initially purchased by these guidelines. physicians is the practice of medicine as defined in Title 59 O.S. Section 492. Lasers are instruments of surgery. When in doubt of a specific medical procedure/treatment No matter what type of laser is being utilized, a physician and the corresponding level of supervision, the physician involved in the process should follow these guidelines. should contact the Oklahoma Board of Medical Licensure and Supervision or appropriate regulatory agency before GUIDELINES potentially placing their medical license in jeopardy. The practice of medicine and surgery as defined above is grounded upon the doctor/patient relationship which Reprinted from the Oklahoma State Board of Medical Li- at a minimum requires a face-to-face evaluation of the censure and Supervision Issues and Answers, Spring 2009 patient by the physician or a physician assistant under a physician’s supervision, prior to the determined treatment or procedure, development of a patient chart, providing patient informed consent and the process for the patient’s follow-up care.
There are several important guidelines to follow when su- pervising other practitioners. page 42 journal of medical licensure and discipline vol 95 number 3 2009
medicolegal decisions
PHYSICIAN LICENSING Rea v. State, No. 03-08-00491 (Tex. App. July 16, 2009)
Roy v. Tenn. Bd. of Med. Exam’rs, No. M08-01636-R3 (Tenn. Ct. App. July 24, 2009) Affirming the dismissal of a physician’s action to enjoin the
Texas Medical Board from continuing to investigate him, The Tennessee Court of Appeals ruled that the state medi- the Texas Court of Appeal concluded that the physician’s cal examiners board properly decided to revoke a doctor’s claims were not ripe because no final agency decision had medical license for prescribing narcotics without proper been made. documentation. The Texas Medical Board informed Dr. William Rea that The Tennessee Board of Medical Examiners revoked Dr. it was investigating a complaint against him. Following the Francis Oscar Roy’s medical license based upon findings investigation, the Board notified Rea that an expert physi- that he prescribed narcotics or controlled drugs without cian panel had concluded that he violated the applicable proper documentation and without appropriate clinical standard of care. The Board filed a complaint against Rea indications. Roy petitioned for judicial review. He con- at the State Office of Administrative Hearings (SOAH). tended that the Board violated his due process rights by ad- The Board sought an adjudicative hearing for the purpose mitting into evidence the deposition of the department of of taking disciplinary action. Rea sued the Board and two health’s only expert witness, whose testimony was obtained administrative law judges with the SOAH. He sought to pursuant to a deficient notice of deposition. The chancery enjoin the Board from continuing to prosecute him and court found that Roy waived any errors and irregularities the SOAH from adjudicating the matter. Rea alleged in in the notice for taking the deposition because he failed to part that the Board violated his due process rights by fail- promptly object in writing as required by Tenn. R.Civ. P. ing to notify him of the nature of the complaint. The trial 32.04(1). Roy appealed. court granted the Board’s motion to dismiss all of Rea’s
claims on the ground that they were not ripe. The appeals court affirmed the trial court’s judgment. As Tenn. R. Civ. P. 32.02(1), 6.01 and 6.05 provide, Roy was The court of appeal concluded that dismissal of the claims entitled to “at least” 10 days notice in advance of the expert was proper. Rea contended that the Board’s violations of witness’ deposition, excluding the intervening Saturday statutes and regulations constituted final administrative de- and Sunday. The assistant general counsel placed the no- cisions. The court of appeal determined, however, that the tice of the out-of-county deposition in the mail on March Board’s acts were preliminary to the administrative hearing 7, 2007. The notice advised that the expert’s deposition before the SOAH. There had been no final agency deci- would occur on March 15, 2007, which was only eight sion that inflicted a concrete injury on Rea; the Board was days after the notice was placed in the mail. Therefore, merely seeking the SOAH’s approval to take disciplinary ac- the department did not provide proper notice to Roy of the tion. The court of appeal found that Rea cited no authority expert’s deposition. to support his argument that, if an agency’s action could be deemed ineffective for any reason like insufficient notice, The appeals court explained that Roy was obliged to follow then the agency loses its power to take such action in the the same substantive and procedural rules as a represented first instance. The trial court’s dismissal sua sponte of the party. He had every opportunity to promptly object to the claims against the SOAH administrative judges was not re- notice of deposition, but he failed to do so until one week versible error. The Board’s ripeness arguments applied to before the rescheduled hearing. By failing to promptly ob- all of Rea’s claims. The court of appeal concluded that the ject in writing as Tenn. R. Civ. P. 32.04(1) requires, Roy holding that the claims were not ripe applied equally to the waived his right to object. Board and the SOAH administrative law judges.
journal of medical licensure and discipline vol 95 number 3 2009 page 43 19. Bro wn, R.L., Edwards, J.A., Rounds, L.A.: Medical Medical Students (Letter to the Editor). NEJM 2006; EXPERT TESTIMONY
Gicla v. United States, No. 08-1648 (7th Cir. July 15, 2009)
The Seventh U.S. Circuit Court of Appeals concluded that a district court’s refusal to exclude the testimony of a defense expert because of his alleged failure to fully dis- close the basis of his opinion was not an abuse of discre- tion. There was no evidence that the claimant was unduly prejudiced by the unexpected disclosure.
David Gicla underwent surgery at a Veteran’s Adminis- tration Medical Center for replacement of his right an- kle-joint with an implant. The implant failed to relieve Gicla’s symptoms. Gicla had five additional surgeries. Ultimately his right leg was amputated. Gicla sued the United States, alleging that he was not adequately advised of the risks of his surgery. Dr. George Vito testified as an expert for the United States. Pursuant to Federal Rule of Civil Procedure 26, Vito disclosed that his opinions re- lied on his review of radiological reports, not the X-rays of Gicla’s ankle. On cross-examination, Vito stated that he had reviewed the X-rays earlier that day. Gicla’s coun- sel moved to strike Vito’s testimony contending that Vito, in violation of Rule 26, had not disclosed previously that his opinions were based on his review of the radiological reports. Gicla’s counsel had planned to argue that Vito’s testimony should be given less weight than Gicla’s expert, who had examined the X-rays.
The district court denied the motion to strike, but offered Gicla’s counsel a recess to prepare questions concerning the X-rays that Vito reviewed. Gicla’s counsel declined the offer. The district court entered judgment in favor of the United States. Gicla appealed, arguing that the court abused its discretion in not excluding Vito’s testimony. The Seventh Circuit affirmed the district court’s judg- ment. The Seventh Circuit agreed that Vito’s review of the X-rays prevented Gicla from attacking the weight of Vito’s testimony. However, Gicla was not unduly prejudiced by Vito’s unannounced review of the X-rays.
The Seventh Circuit reasoned that Vito testified that the X-rays had not altered his views. Further, Vito’s testimony did not differ in any respect from the opinions that he dis- closed prior to trial. The Seventh Circuit found that any prejudice to Gicla was minimized by the fact that a bench trial was conducted. The trial judge was aware of the late disclosure and understood that Vito had formed his opin- ions prior to looking at the X-rays. page 44 journal of medical licensure and discipline vol 95 number 3 2009
Lockhart v. Guyden, No. 01-08-00983 (Tex. App. July 16, 2009) unpublished
The Texas Court of Appeal ruled that a trial court abused its discretion in denying a doctor’s motion to dismiss medi- cal malpractice and wrongful death claims brought by a decedent’s heir since the heir did not file a sufficient expert report.
Normell Guyden, individually and as heir to the estate of Natalie Guyden, brought medical malpractice and wrong- ful death claims against Dr. Christopher Lockhart, alleg- ing that Lockhart was negligent in not timely transferring Natalie to an acute care facility and that this negligence proximately caused Natalie’s death. Lockhart moved to dismiss the plaintiff’s claims on the ground that he did not file a sufficient expert report. The trial court denied the motion, and Lockhart appealed.
The appeals court reversed the trial court’s judgment. The plaintiff did not file an expert report that was an objective, good faith effort to comply with Civil Practice and Reme- dies Code. The expert report was conclusory on the specific opinion that Lockhart was negligent in not timely transfer- ring to an acute care facility and that this negligence proxi- mately caused her death. Nowhere in the report was there a specific discussion of whether Natalie’s death would more likely than not have been prevented with proper medical diagnosis and treatment.
MEDICAL SCHOOLS
Abdullah v. State, No. 20080254 (N.D. July 29, 2009)
The North Dakota Supreme Court affirmed a trial court’s grant of summary judgment, finding that a university’s school of medicine lawfully terminated a doctor from its internal medicine residency program.
Dr. David Theige informed Dr. Sarmed Abdullah that Abdullah was being terminated from the University of North Dakota School of Medicine residency program shortly before he was scheduled to graduate from the program. Abdullah appealed to the resident fair process and grievance hearing panel, which upheld Theige’s decision. Abdullah then appealed to the Dean of the School of Medicine, who upheld the hearing panel’s decision.
journal of medical licensure and discipline vol 95 number 3 2009 page 45
Abdullah then sued the state of North Dakota, d/b/a the On Apr. 9, 2004, Albert Price Jr. was diagnosed with a pitu- University of North Dakota, and Theige alleging claims itary tumor. Price died on Aug. 14, 2004. His widow, Nina for, inter alia, breach of contract, violation of his substan- Price, sued Price’s primary care physician, Dr. Steven tive due process right under 42 U.S.C. § 1983, and viola- Clark, and certain other medical service providers alleging tion of the Americans with Disabilities Act (ADA) because negligent failure to timely diagnose her husband’s tumor. of his bouts with sleep deprivation. The trial court granted A trial court dismissed with prejudice those defendants summary judgment for the university and Theige. Abdul- subject to immunity under the Mississippi Tort Claims Act lah appealed. (MTCA) and dismissed without prejudice those of Nina’s claims against defendants not subject to MTCA immunity The supreme court affirmed the trial court’s judgment. based on a finding that Nina failed to satisfy an applicable The decision to dismiss Abdullah was made after he was notice requirement. Nina appealed. afforded procedural safeguards, and the record of the pro- ceedings before the hearing panel included evidence that The supreme court concluded that Nina’s Aug. 31, 2004, the substantive decision to dismiss him from the residency complaint was properly filed and served within the ap- program was not a substantial departure from accepted ac- plicable statues of limitations as to Clark and Cleveland ademic norms. Although Abdullah claimed the dismissal Medical Clinic. Nina failed to comply with required no- was arbitrary and capricious and not in good faith, there tice requirements as to Greenwood Leflore Hospital, of was sufficient evidence in the record for a reasoning mind which Cleveland Medical was an instrumentality, and the to conclude Abdullah was dismissed for incompetence in supreme court concluded that the trial court’s dismissal the area of professionalism. Thus, the trial court did not was the proper remedy for this failure. The trial court err in granting summary judgment on Abdullah’s breach erred, however, in dismissing Nina’s complaint with preju- of contract claim. dice given that the complaint served to toll the statute of limitations under the trial court’s July 2006 ruling. The supreme court also found that the trial court did not err in granting summary judgment on Abdullah’s substan- The supreme court separately affirmed the trial court’s tive due process claim. Abdullah failed to demonstrate a grant of summary judgment in favor of Clark and Cleve- violation of a clearly established law because the right to land Medical based on its finding that Nina’s medical ex- attend a public school is not a fundamental right for pur- pert was unable to establish any genuine issue of mate- poses of substantive due process. Moreover, the supreme rial fact that Clark had breached the applicable standard court determined that the trial court did not err in grant- of care. Nina further failed to make any argument before ing summary judgment on his claim for a violation of the the supreme court than a fact issue existed as to Clark’s ADA. Abdullah failed to provide any facts to show that deviation from the standard of care. Accordingly, the trial the university regarded his bout with sleep deprivation court’s dismissal of Nina’s complaint was affirmed in rel- as a disability and that the university dismissed Abdullah evant part. from the residency program because of that perceived dis- ability. The evidence before the hearing panel established that the decision to dismiss Abdullah was not based on his perceived mental health, but was based on his lack of professionalism.
EVIDENCE NOTICE
Price v. Clark, No. 07-CA-01671 (Miss. July 23, 2009)
The Mississippi Supreme Court affirmed in relevant part a trial court’s dismissal of a former patient’s negligence action against a physician and other medical service providers arising from the allegedly late diagnosis of the patient’s pituitary tumor.
journal of medical licensure and discipline vol 95 number 3 2009 page 45 19. Brown, R.L., Edwards, J.A., Rounds, L.A.: Medical Medical Students (Letter to the Editor). NEJM 2006;
page 46 journal of medical licensure and discipline vol 95 number 3 2009
PAG E 46 J OURNAL OF MEDI CAL LI CENSURE AND DIS CI P LI NE VOL 95 NUMBER 3 2009
Federation of state medical boards of the United States, inc. P.O. Box 619850, Dallas, TX 75261-9850 (817) 868-4000 www.fsmb.org