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Disabilities Law Protects Bad Doctors

[Originally appeared in the New York Times, November 28, 1997]

It was the patients' screams that finally did it. Officials at Hazleton-St. Joseph Medical Center in Pennsylvania investigated Frank Ruhl Peterson and found the anesthesiologist had been stealing narcotics from surgical intravenous bags to feed his own habit. Dozens of patients had been shortchanged of anesthesia prescribed for procedures that included Caesarean sections, biopsies and spinal surgery.

Dr. Peterson, a longtime addict with a record of arrests on charges that included drug possession and kidnapping, was sentenced in February and served a short prison term.

Most of us assume someone is keeping an eye on doctors with backgrounds of drug addiction, alcoholism or serious mental illness. In fact, thanks to the Americans With Disabilities Act, which Congress passed in 1990, these conditions have become legally protected handicaps, and medical boards are being stymied in their efforts to monitor or even identify doctors with histories of drug abuse.

Boards seldom deny licenses to applicants who disclose past psychiatric or substance-abuse problems. Still, most boards would like to have enough information so they can decide for themselves how serious the problems are and then be on the lookout for signs of recurrences.

The civil rights division of the Justice Department has made this very difficult, however, and in some cases impossible. It has ruled it a violation of the disabilities law to question would-be doctors broadly about their histories of alcoholism, drug abuse or mental illness. Such inquiries would cause doctors to be unfairly "singled out because of their disabilities," says the Justice Department, and would impose on them "additional burdens of investigation."

In other words, such questioning would infringe on their right not to be scrutinized more closely than doctors who have been sober or sane all along.

Instead, the Justice Department recommends that doctors be asked questions like, "Do you currently suffer any mental disorder which impairs your ability to practice medicine?" But this overlooks the obvious fact that someone suffering from mental illness is not always in the best position to make such judgments.

Advocates for the disabled further advise licensing boards to rely on nebulous "behavioral" indicators. Such indicators include references from previous employers, though these are often not made available for fear of inviting lawsuits; records of absenteeism, though these may fail to explain why the applicant missed a month of work (a skiing accident or a visit to a drug rehabilitation center?); and criminal convictions, though that will not help in the case of someone arrested repeatedly but not convicted, as seems to have been the case with Dr. Peterson.

The danger of relying on behavioral clues alone is demonstrated by the case of a Texas doctor that was a centerpiece of an investigative report published in The New York Times in 1994. Dr. Garry E. Winn showed symptoms of diminished mental capacity, seizures and "physical disabilities related to a stroke," as The Times reported, in addition to high alcohol consumption, but did not face a malpractice complaint until he miscalculated a dose of medication, inflicting severe brain damage on a previously healthy patient.

Nor did Dr. Winn's uneasy colleagues move to revoke his hospital privileges: they said they were afraid he would sue.

Fortunately, the disabilities law does not protect what it terms "current" illegal drug use. In a landmark suit brought in 1993, the New Jersey Board of Medical Examiners was permitted to go back two years in asking applicants about their illegal drug use.

But two years is hardly long enough. When Dr. Peterson applied for his license, Pennsylvania officials asked about drug use in the previous five years -- very conveniently for him, since he had just passed the fifth anniversary of his entry into a rehabilitation program.

Even five years is a relatively short time. According to Congressional testimony, a significant number of doctors relapse even after five years of reported sobriety; relapse rates in the first five years range as range as high as 50 percent.

No wonder Dr. Ray Bumgarner of the Federation of State Medical Boards warned, in testimony last May before the House Judiciary Committee, that his member boards "cannot adequately protect the public" under the Americans With Disabilities Act as currently interpreted. Doctors with "extensive impairment histories" are bound to slip through, he added, "without evaluation and monitoring."

As Dr. Peterson's patients, crying out from their beds, must have wondered: isn't anyone out there listening?