Proposition 46 under fire: Experts call for better approach to physician drug testing

In two editorials published in the Annals of Internal Medicine, three physicians are speaking out against California’s Proposition 46, which would require mandatory drug testing of physicians — either randomly or after the “unexpected death or serious injury” of a patient — among other provisions.

According to the proposed legislation, physicians who test positive on drug or alcohol tests would be temporarily suspended, pending an investigation. The measure also requires physicians prescribing schedule II or schedule III controlled substances for the first time to consult the state’s Controlled Substance Utilization Review and Evaluation System (CURES). Malpractice lawsuits are also addressed — the law proposes adjusting the $250,000 cap on compensation to account for inflation. The new adjusted cap would be $1.1 million if the measure is passed, according to one of the editorials.

Residents of California will vote on Prop 46 on November 4, 2014.

Mandatory drug testing

Yul D. Ejnes, MD, MACP, of The Warren Alpert Medical School of Brown University, wrote that the drug testing requirement is “cause for concern” because it excludes other health care providers, like nurses and pharmacists, and is not limited to those who provide safety-sensitive duties.

“Prop 46 will subject all physicians to random testing, regardless of what they do in the hospital or what the risk for harm from their roles may be. A physician with limited or no direct patient care responsibilities would be treated the same as one who routinely performs potentially life-threatening procedures, for example,” he wrote, and characterized such measures as “unacceptable.”

Ejnes further points out that after the suspension of licensure following a positive drug test, the timeframe for an investigation and hearing is not outlined. The proposed legislation also fails to specify whether the hospital administration or medical staff would oversee the drug testing.

In a separate editorial, Julius Cuong Pham, MD, PhD, and Peter J. Pronovost, MD, PhD, of the Johns Hopkins School of Medicine, wrote that the drug testing provision could have unintended consequences due to the punitive nature of the suspension.

“Effective drug testing programs seek to identify and rehabilitate rather than punish,” they wrote. “When punishment prevails, health care providers are less likely to seek help themselves or to report a colleague who might be impaired. Thus, under this new law, physicians might seek to avoid detection as long as possible, might not be reported as early and might come to attention only after egregious patient harm.”

Pham and Pronovost, who have written about identifying impaired physicians, also cited concerns about the potential for false positives.

“The initiative also calls for the immediate suspension of physicians who test positive, without defining a legitimate process for confirming positive test results,” they wrote. “False positive results will predictably occur and investigations can be long and drawn-out, while innocent physicians and their families will be unjustly punished, imposing financial burdens and compromising trust in the legal system on which democratic societies rest.”

Pham and Pronovost said they support testing, but favor an alternate approach.

Increasing the cap

Ejnes wrote that California legislation states that “no initiative measure addressing more than one subject area may be submitted to the voters,” and argued that the inclusion of language designed to tie malpractice caps to inflation is unrelated to patient safety.

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“Proponents claim that the three parts of Prop 46 will increase patient safety,” he said, and added that physician impairment is clearly a safety issue. “However, the relationship of caps on noneconomic damages to patient safety is a dubious one at best. Caps help to limit the growth of liability costs, but no good evidence shows that they affect quality of care.”

The inclusion is a political move to change the Medical Injury Compensation Reform Act (MICRA) put in place in 1975, according to Ejnes.

“Opponents contend that mandatory testing is a ‘sweetener’ designed to get voters to approve raising MICRA caps, which would be less likely to win on its own.”

Similar thoughts were expressed by Pham and Pronovost.

“On deeper examination, it conflates two unrelated issues, medical malpractice cap and physician drug testing, using the latter to increase the former and ultimately decreasing rather than increasing patient safety.”

CURES database

Pham and Pronovost support the requirement to consult the CURES before prescribing controlled substances and label it as a “strength,” but wrote that the system is cumbersome to use.

“Although beneficial, this requirement is impractical with current levels of staffing; the state prescription drug history database is underfunded and inaccurate, and its Web site is clunky and clumsy. As a result, its use and usefulness are limited,” they wrote, and called for investment into improving the system.

Better solution needed

The unintended consequences of Prop 46 remain to be seen, though Pham and Pronovost believe they will outweigh the benefits. In their editorial, they outline the key components of an effective program for physician drug testing.

“Established physician health programs should be involved, tasked with early identification and assistance of physicians with impairment-related disorders. We recognize that widespread physician drug testing would be novel and could have unintended consequences,” they wrote. “We have recommended that experience could be gained by starting in one department, hospital or health system, enabling vetting of the logistics, risks and benefits of such a program.”

The issue of physician substance abuse needs to be addressed, according to Ejnes. Currently, the system of self-policing and reporting impaired colleagues often falls short; therefore, he acknowledges the potential need for mandatory drug and alcohol testing.

“However, developing a system that achieves the goal of detecting and preventing physician impairment requires a thoughtful dialogue among all stakeholders, led by the medical profession. A ballot initiative intended to win votes, debated in sound bites and tweets and creating more problems than it solves, is not the right solution,” Ejnes concluded.

For more information:

Ejnes YD. Ann Intern Med. 2014; doi:10.7326/M14-1866.

Pham JC, Pronovost PJ. Ann Intern Med. 2014; doi:10.7326/M14-2167.

Disclosures: See the full articles for relevant financial disclosures.