Medicolegal Issues in Medicolegal Issues in Addiction MedicineAddiction Medicine

Calvin L. RaupCalvin L. RaupRaup & Hergenroether, PLLCRaup & Hergenroether, PLLC

Phoenix, Az 85004Phoenix, Az 85004CRaup@RaupLaw.com

(602) 229-8961(602) 229-8961

Learning ObjectivesLearning Objectives

• Legal issues affecting Board appearances.Legal issues affecting Board appearances.

• The Board and peer review.The Board and peer review.

• Board confidentiality.Board confidentiality.

• Duty to self report.Duty to self report.

• Duty to report others.Duty to report others.

• Immunity provisions.Immunity provisions.

• Changes at the Boards. ››Changes at the Boards. ››

Legal Issues and “The Board”Legal Issues and “The Board”

• Due ProcessDue ProcessProperty interest in medical license.Property interest in medical license.No “taking” without due process.No “taking” without due process.Notice & opportunity to be heard.Notice & opportunity to be heard.

• Right to counsel.Right to counsel.• Strict statutory confidentiality.Strict statutory confidentiality.• The Arizona Open Meetings Law.The Arizona Open Meetings Law.• Fifth Amendment rights.Fifth Amendment rights.• Boards’ duty to report criminal conduct.Boards’ duty to report criminal conduct. ››››

Boards’ Duty to ReportBoards’ Duty to Report

• The board shall report allegations of [sic?] evidence The board shall report allegations of [sic?] evidence of criminal wrongdoing to the appropriate criminal of criminal wrongdoing to the appropriate criminal justice agency. justice agency. ARS § 32-1855 (K). (OBEX)ARS § 32-1855 (K). (OBEX)

• If the board, during the course of any investigation, If the board, during the course of any investigation, determines that a criminal violation may have determines that a criminal violation may have occurred involving the delivery of health care, it occurred involving the delivery of health care, it shall make the evidence of violations available to the shall make the evidence of violations available to the appropriate criminal justice agency for its appropriate criminal justice agency for its consideration. consideration. ARS § 32-1451 (O). (AMB)ARS § 32-1451 (O). (AMB)

The Board and Peer ReviewThe Board and Peer Review

• Statutory confidentiality for peer review.Statutory confidentiality for peer review.

ARS § 36-445.01.ARS § 36-445.01.

ExceptionException: Board investigations.: Board investigations.

• SStatutory confidentiality for Board tatutory confidentiality for Board investigations.investigations.

ARS § 32-1855.03 (C) (OBEX)ARS § 32-1855.03 (C) (OBEX)

ARS § 32-1451.01 (E) (AMB)ARS § 32-1451.01 (E) (AMB)

ExceptionException: Board hearings. ››: Board hearings. ››

Sun Health v. MyersSun Health v. Myers

• Surgeon summarily suspended and reported.Surgeon summarily suspended and reported.• Trial judgeTrial judge: hospital’s report to Board on : hospital’s report to Board on

reasons for peer review is not confidential.reasons for peer review is not confidential.Peer review itself confidential.Peer review itself confidential.Board’s investigation confidential.Board’s investigation confidential.

• Court of AppealsCourt of Appeals::Statute requires hospital to disclose grounds Statute requires hospital to disclose grounds

for adverse action.for adverse action.Precisely what is protected.Precisely what is protected.Trial judge reversed. ››Trial judge reversed. ››

BOMEX (Moos) v. Superior CourtBOMEX (Moos) v. Superior Court

• Board ordered psychological evaluation.Board ordered psychological evaluation.

• Physician and counsel receive copy.Physician and counsel receive copy.

• Wife subpoenas report in divorce/custody Wife subpoenas report in divorce/custody proceeding.proceeding.

• Board asserts statutory confidentiality.Board asserts statutory confidentiality.

• Trial judge: report remains confidential.Trial judge: report remains confidential.

• Court of Appeals: confidentiality is Court of Appeals: confidentiality is absolute. ››absolute. ››

The Role of Counsel in Substance The Role of Counsel in Substance Abuse InvestigationAbuse Investigation

• Neither believe nor disbelieve the client.Neither believe nor disbelieve the client.

• Dishonesty is an element of addiction. Dishonesty is an element of addiction.

• Explain the process.Explain the process.

• Participate in substance abuse interview.Participate in substance abuse interview.

• Potential disciplinary or criminal action.Potential disciplinary or criminal action.

• Assist with disciplinary investigations. Assist with disciplinary investigations.

• Written response. Written response.

• Investigational interview. »Investigational interview. »

The Role of Counsel in Substance The Role of Counsel in Substance Abuse InvestigationAbuse Investigation

• Assist with transition back to practice.Assist with transition back to practice.• Loss of employment.Loss of employment.• Loss of privileges.Loss of privileges.• Loss of contracts.Loss of contracts.• Role of the ADA.Role of the ADA.

• ““The Impaired Physician in Your Group.”The Impaired Physician in Your Group.”• Advocate for modification of rehabilitation Advocate for modification of rehabilitation

orders. ››orders. ››

Dilemmas for CounselDilemmas for Counsel

• What to tell physician under investigation.What to tell physician under investigation.

““They will test you.”They will test you.”

Length of hair necessary for testing.Length of hair necessary for testing.

Telling the truth Telling the truth discipline. discipline.

Cannot ethically advise client to lie.Cannot ethically advise client to lie.

• Board meetings are public.Board meetings are public.

Board investigations confidential.Board investigations confidential.

Formal action is not. ››Formal action is not. ››

The Duty to Self ReportThe Duty to Self Report

• Must self report:Must self report:Felony charge or;Felony charge or;Misdemeanor charge involving “conduct Misdemeanor charge involving “conduct that may affect patient safety.”that may affect patient safety.”Ten working days to report.Ten working days to report.ARS § 32-3208ARS § 32-3208

• Reportable misdemeanors: Reportable misdemeanors: http://www.azmd.gov/Forms/misdemeanors.pdf

• DUI qualifies. ››DUI qualifies. ››

Duty to Report Other PhysiciansDuty to Report Other Physicians

• DOs must report other DOs.DOs must report other DOs.

• The standard: “any information” . . . is or The standard: “any information” . . . is or may be guilty of unprofessional conduct or may be guilty of unprofessional conduct or is or may be mentally or physically unable is or may be mentally or physically unable safely to engage in the practice of medicine. safely to engage in the practice of medicine.

ARS § 32-1855(A). ››ARS § 32-1855(A). ››

Duty to Report Other PhysiciansDuty to Report Other Physicians

• MDs must report other MDs.MDs must report other MDs.

• The standard: “any information” . . . is or The standard: “any information” . . . is or may be medically incompetent, is or may be may be medically incompetent, is or may be guilty of unprofessional conduct or is or guilty of unprofessional conduct or is or may be mentally or physically unable safely may be mentally or physically unable safely to engage in the practice of medicine.to engage in the practice of medicine.

• ARS § 32-1451(A). ››ARS § 32-1451(A). ››

AMB’s Position on ReportingAMB’s Position on Reporting

• HospitalsHospitals: October 2, 2006 memo.: October 2, 2006 memo.Must report “any information.”Must report “any information.”Should not wait for investigation to be Should not wait for investigation to be

completed.completed.• Substantive Policy Statement #13.Substantive Policy Statement #13.

Adopted June, 2008.Adopted June, 2008.Not attempting to interfere with peer Not attempting to interfere with peer

review. review. http://www.azmd.gov/Regulatory/policy/SPS13.pdf

›› ››

Substantive Policy Statement #13Substantive Policy Statement #13

• ““Duties of Hospitals and Physicians to Duties of Hospitals and Physicians to Report Peer Review/Quality Assurance Report Peer Review/Quality Assurance Information.”Information.”

• Board recognizes:Board recognizes:

Importance of Peer in health care Importance of Peer in health care institutions.institutions.

Prematurely reporting may have an Prematurely reporting may have an unintended effect on Peer Review. ››unintended effect on Peer Review. ››

Substantive Policy Statement #13Substantive Policy Statement #13

• Hospital’s duty to reportHospital’s duty to report::

Requests physician refrain from practicing:Requests physician refrain from practicing:

In lieu of suspension or restriction.In lieu of suspension or restriction.

• Hospital committee receives information Hospital committee receives information

concerning non staff member’s competence.concerning non staff member’s competence.

• Hospital committee has credible information a Hospital committee has credible information a

physician may not be safe. ››physician may not be safe. ››

Substantive Policy Statement #13Substantive Policy Statement #13

• Healthcare entities’ & physicians’ duty to Healthcare entities’ & physicians’ duty to report:report:

Any physician: “credible information.”Any physician: “credible information.”

Hospital requests physician refrain from Hospital requests physician refrain from practice pending investigation.practice pending investigation.

Hospital restricts privileges.Hospital restricts privileges.

• No duty to report peer review information No duty to report peer review information except as described above. ››except as described above. ››

Immunity ProvisionsImmunity Provisions

• ““Good faith” reporting.Good faith” reporting.

Qualified immunity.Qualified immunity.

• Peer review.Peer review.

Confidential and inadmissible.Confidential and inadmissible.

State statutory immunity.State statutory immunity.

Only judicial remedy: injunction for Only judicial remedy: injunction for reinstatement.reinstatement.

Federal immunity: HCQIA. ››Federal immunity: HCQIA. ››

Changes at the BoardsChanges at the Boards

• OBEX: Elaine LeTarte ED since 2008.OBEX: Elaine LeTarte ED since 2008.

• AMB: Lisa Wynn ED since 2008.AMB: Lisa Wynn ED since 2008.Stipulated Health Agreements. Stipulated Health Agreements. Flexibility in MAP stipulations.Flexibility in MAP stipulations.Two years or five years in MAP?Two years or five years in MAP?

No criminal offense.No criminal offense.Abuse vs. addiction.Abuse vs. addiction.Other factors.Other factors.

Credit for “time served” before MAP Credit for “time served” before MAP stipulation accepted by Board. ››stipulation accepted by Board. ››

Clinical ScenariosClinical Scenarios

• Treatment of chronic pain by addicted Treatment of chronic pain by addicted physicianphysician..

Pharmacy survey finds “excessive” doses of Pharmacy survey finds “excessive” doses of scheduled drugs.scheduled drugs.

Presumption: diversion for personal use.Presumption: diversion for personal use.

Burden of proof shifts.Burden of proof shifts.

• How do you justify your treatment?How do you justify your treatment?

• How do you prove you are not using? ››How do you prove you are not using? ››

Clinical ScenariosClinical Scenarios

• Patient with severe MVA injuries.Patient with severe MVA injuries.

Addicted to scheduled drugs at first visit.Addicted to scheduled drugs at first visit.

Monthly “need” for early script.Monthly “need” for early script.

Pain is real.Pain is real.

May be obtaining drugs from other providers.May be obtaining drugs from other providers.

• How to detect drug seeking behavior.How to detect drug seeking behavior.

• NASPER: NASPER: National All Schedules Prescription National All Schedules Prescription Electronic Reporting Act of 2005Electronic Reporting Act of 2005. .

• Arizona: Schedule II—IV, effective 7/2008. ››Arizona: Schedule II—IV, effective 7/2008. ››

Clinical ScenariosClinical Scenarios

• Initial visit with addicted patient.Initial visit with addicted patient.

Patient demands privacy; no chaperone.Patient demands privacy; no chaperone.

Patient demands unnecessary narcotics.Patient demands unnecessary narcotics.

Patient will complain of sexual impropriety.Patient will complain of sexual impropriety.

• How do you react to this threat?How do you react to this threat?

• How do you defend if the claim is made?How do you defend if the claim is made?

• How do you protect yourself? ›› How do you protect yourself? ››

Questions?Questions?