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The physician began his career as a resident at a New York hospital in 1958, and by 1991 was appointed Chief of Medicine. But the doctor had a drinking problem that periodically impeded his clinical and administrative capabilities.  In 1992, he was found intoxicated while performing his clinic duties. The physician did not deny that he was drunk and agreed to undergo treatment for his alcoholism. After successfully completing inpatient treatment, he agreed to follow a recovery program sponsored by New York's medical society. As part of the program, he agreed to sessions with a therapist, participation in a self-help group, urine screens, and professional monitoring in the work place.


The doctor was allowed to return to the staff but removed as Chief of Staff. He sued, alleging that the hospital had violated the American with Disabilities Act by refusing to allow his return as chief. The doctor argued that the professional monitoring program would be adequate to insure that he could safely treat patients and conduct his administrative duties. After depositions were conducted, both sides filed motions asking the court to rule in their favor.


The court stated that, to prevail, the physician would have to prove that he had a disability, that despite his disability he was able to perform his duties, and that the reason he was not returned to his position was because of discrimination toward his disability. The court agreed, as have most courts, that alcoholism is a disability. It found that the reason the doctor was not reassigned was because of his disability. However, the court then extensively analyzed whether he was otherwise qualified for the position.


The court relied on opinions from other states which had determined that a disabled individual is not otherwise qualified if he poses a direct threat to the health or safety of others which cannot be eliminated by a reasonable accommodation.  The court noted that this physician was in a position of significant responsibility and that his intoxication could have a direct and immediate negative impact upon both patients and staff at the hospital. He had asserted that the monitoring program would eliminate this risk, but the court disagreed.  It noted that he had previously been able to consume large amounts of alcohol without exhibiting symptoms of alcoholism to those around him. Even reasonable monitoring would not guarantee the performance of his duties without his judgment being impaired by alcohol. So the court concluded that no reasonable accommodation could eliminate the risk of substantial harm if he were returned to his administrative post.


When a health care professional is impaired due to an illness, injury, or addiction, a difficult balance of competing interests arises. On the one hand, patients must be protected from harm. On the other hand, a disabled practitioner needs to be able to work to the fullest extent possible.


 


Reasonable accommodation must be sought which insures good patient care, and this is often accomplished by requiring the physician to practice in a restricted or supervised manner.


A further concern is the liability of the group or hospital for the acts of the impaired physician. In a recent decision, a Texas hospital settled a medical malpractice suit involving an impaired physician where a mother and fetus died. The plaintiffs alleged that the hospital was negligent for failing to take appropriate remedial action after it learned about the physician's drug and alcohol abuse. The hospital settled the case for nine million dollars.


 


Most states mandate health care professionals who know or suspect that another licensed practitioner has an impairment, report this to state licensing boards. The licensing board and the state's professional society may then help the practitioner get treatment. Studies have shown that physicians have a remarkably high recovery rate compared to the general population; 90 percent at five years by some estimates.


 


Health care facilities today are very aware of the legal requirements surrounding employees with disabilities and will provide the physician with a viable approach to resolving any disputes over a restriction on patient care activities. In this regard, all groups should make physician participation contingent upon maintaining privileges at the hospitals where they practice.


 


Most practitioners who confront these problems should seek advice from hospital counsel at the hospital where the physician has privileges. And one need not be dissuaded from pursuing a legitimate course of action because a threatening letter is received from the impaired physician's attorney. The independent group should attempt to coordinate their recommendations with those of the health care facility to insure a common, sensible approach to the resolution of these very difficult issues.


A Colleague Abusing Substances

by Attorney Frank E. Reardon

September 1997

REARDON LAW OFFICE