Medicolegal Issues in Addiction Medicine

2. Medicolegal Issues in Addiction Medicine Calvin L. Raup Raup & Hergenroether, PLLC Phoenix, Az 85004 CRaup@RaupLaw.com (602) 229-8961

3. Learning Objectives • Legal issues affecting Board appearances. • The Board and peer review. • Board confidentiality. • Duty to self report. • Duty to report others. • Immunity provisions. • Changes at the Boards. ››

4. Legal Issues and “The Board” • Due Process Property interest in medical license. No “taking” without due process. Notice & opportunity to be heard. • Right to counsel. • Strict statutory confidentiality. • The Arizona Open Meetings Law. • Fifth Amendment rights. • Boards’ duty to report criminal conduct. ››

5. Boards’ Duty to Report • The board shall report allegations of [sic?] evidence of criminal wrongdoing to the appropriate criminal justice agency. ARS § 32-1855 (K). (OBEX) • If the board, during the course of any investigation, determines that a criminal violation may have occurred involving the delivery of health care, it shall make the evidence of violations available to the appropriate criminal justice agency for its consideration. ARS § 32-1451 (O). (AMB)

6. The Board and Peer Review • Statutory confidentiality for peer review. ARS § 36-445.01. Exception: Board investigations. • Statutory confidentiality for Board investigations. ARS § 32-1855.03 (C) (OBEX) ARS § 32-1451.01 (E) (AMB) Exception: Board hearings. ››

7. Sun Health v. Myers • Surgeon summarily suspended and reported. • Trial judge: hospital’s report to Board on reasons for peer review is not confidential. Peer review itself confidential. Board’s investigation confidential. • Court of Appeals: Statute requires hospital to disclose grounds for adverse action. Precisely what is protected. Trial judge reversed. ››

8. BOMEX (Moos) v. Superior Court • Board ordered psychological evaluation. • Physician and counsel receive copy. • Wife subpoenas report in divorce/custody proceeding. • Board asserts statutory confidentiality. • Trial judge: report remains confidential. • Court of Appeals: confidentiality is absolute. ››

9. The Role of Counsel in Substance Abuse Investigation • Neither believe nor disbelieve the client. • Dishonesty is an element of addiction. • Explain the process. • Participate in substance abuse interview. • Potential disciplinary or criminal action. • Assist with disciplinary investigations. • Written response. • Investigational interview. »

10. The Role of Counsel in Substance Abuse Investigation • Assist with transition back to practice. • Loss of employment. • Loss of privileges. • Loss of contracts. • Role of the ADA. • “The Impaired Physician in Your Group.” • Advocate for modification of rehabilitation orders. ››

11. Dilemmas for Counsel • What to tell physician under investigation. “They will test you.” Length of hair necessary for testing. Telling the truth  discipline. Cannot ethically advise client to lie. • Board meetings are public. Board investigations confidential. Formal action is not. ››

12. The Duty to Self Report • Must self report: Felony charge or; Misdemeanor charge involving “conduct that may affect patient safety.” Ten working days to report. ARS § 32-3208 • Reportable misdemeanors: http://www.azmd.gov/Forms/misdemeanors.pdf • DUI qualifies. ››

13. Duty to Report Other Physicians • DOs must report other DOs. • The standard: “any information” . . . is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. ARS § 32-1855(A). ››

14. Duty to Report Other Physicians • MDs must report other MDs. • The standard: “any information” . . . is or may be medically incompetent, is or may be guilty of unprofessional conduct or is or may be mentally or physically unable safely to engage in the practice of medicine. • ARS § 32-1451(A). ››

15. AMB’s Position on Reporting • Hospitals: October 2, 2006 memo. Must report “any information.” Should not wait for investigation to be completed. • Substantive Policy Statement #13. Adopted June, 2008. Not attempting to interfere with peer review. http://www.azmd.gov/Regulatory/policy/SPS13.pdf ››

16. Substantive Policy Statement #13 • “Duties of Hospitals and Physicians to Report Peer Review/Quality Assurance Information.” • Board recognizes: Importance of Peer in health care institutions. Prematurely reporting may have an unintended effect on Peer Review. ››

17. Substantive Policy Statement #13 • Hospital’s duty to report: Requests physician refrain from practicing: In lieu of suspension or restriction. • Hospital committee receives information concerning non staff member’s competence. • Hospital committee has credible information a physician may not be safe. ››

18. Substantive Policy Statement #13 • Healthcare entities’ & physicians’ duty to report: Any physician: “credible information.” Hospital requests physician refrain from practice pending investigation. Hospital restricts privileges. • No duty to report peer review information except as described above. ››

19. Immunity Provisions • “Good faith” reporting. Qualified immunity. • Peer review. Confidential and inadmissible. State statutory immunity. Only judicial remedy: injunction for reinstatement. Federal immunity: HCQIA. ››

20. Changes at the Boards • OBEX: Elaine LeTarte ED since 2008. • AMB: Lisa Wynn ED since 2008. Stipulated Health Agreements. Flexibility in MAP stipulations. Two years or five years in MAP? No criminal offense. Abuse vs. addiction. Other factors. Credit for “time served” before MAP stipulation accepted by Board. ››

21. Clinical Scenarios • Treatment of chronic pain by addicted physician. Pharmacy survey finds “excessive” doses of scheduled drugs. Presumption: diversion for personal use. Burden of proof shifts. • How do you justify your treatment? • How do you prove you are not using? ››

22. Clinical Scenarios • Patient with severe MVA injuries. Addicted to scheduled drugs at first visit. Monthly “need” for early script. Pain is real. May be obtaining drugs from other providers. • How to detect drug seeking behavior. • NASPER: National All Schedules Prescription Electronic Reporting Act of 2005. • Arizona: Schedule II—IV, effective 7/2008. ››

23. Clinical Scenarios • Initial visit with addicted patient. Patient demands privacy; no chaperone. Patient demands unnecessary narcotics. Patient will complain of sexual impropriety. • How do you react to this threat? • How do you defend if the claim is made? • How do you protect yourself? ››

24. Questions?