1. IDAA Annual Meeting 2017 Salt Lake City, Utah
License to Kill
The Danger of Practicing While Impaired
IDAA Annual Meeting 2017
Salt Lake City, Utah
Presented by: Mark F. Seltzer, Esq.

2. Physicians Are the Target
You are being scrutinized for your treatment of patients and your own wellbeing.

6. Doctor Arrested for DUI and Medical License Revoked
Doctor was arrested on Suspicion of DUI when officers observed his vehicle swerving in traffic
His blood alcohol level was 0.17%, more than twice the legal limit
He plead no contest and was sentenced to four days in jail, a fine, and probation
Upon investigation by the Medical Board, it was discovered he was on call the night of the arrest, despite initially lying about this fact to Board investigators
It was further discovered he had been drinking the night before the investigation interview, even though he was on call then as well. A fact he also initially lied about
His medical license was revoked
The revocation was stayed and the doctor was placed on four years probation, pending he abstain from alcohol use, submit to random drug screens, complete an ethics course, and undergo psychotherapy

7. Dentist Suffering from Chemical Abuse or Dependency
Dentist found to be abusing Oxycodone, Alcohol and Cocaine
Despite receiving prior inpatient treatment, under the terms of a Consent Agreement, his license was suspended
The suspension was stayed as long as he continues approved treatment and monitoring, including
Enrollment and cooperation with the PHP,
Compliance with all evaluations and recommendations,
Attends support groups,
Remains abstinent,
Submits to random drug testing, and
Only works with prior approval by the board with a workplace monitor

8. Impaired Pediatrician Performing Anesthesia
“On the day in March 2013 when law enforcement agents raided their clinics, the medical board report says, she was visibly impaired, with "extreme body shakes and tremors" on a day that surgeries were scheduled. A search found loose pills in her pocket, syringes in her car, and injectable vials of fentanyl and Demerol in her home bathroom.”

9. Intoxication While Treating Patients is Professional Misconduct
In New York, a solo practitioner with privileges at a local hospital was reported in an anonymous tip as practicing at the hospital with the smell of alcohol on his breath
The chief of medicine at the hospital officially met with the doctor three times regarding complaints of him smelling of alcohol
His patients were placed on “covered service,” meaning they were watched closely by other hospital staff
Upon investigation by the board of medicine, the doctor admitted to drinking four cans of beer and one third to one half a liter of whiskey, daily
The doctor’s license was revoked and the fact that his impaired condition did not actually harm patients was found not to preclude a finding of professional misconduct
O'Brien v. Comm'r of Educ. of State of N.Y., 136 A.D.2d 837, 523 N.Y.S.2d 680 (1988)

10. Determining No Treatment is Necessary While Impaired
While covering for a colleague, a doctor went to one hospital to review the chart of his colleague’s patient
He determined no further treatment was necessary at the time
The doctor then proceeded to another hospital to check on his own patients
On his way to the second hospital, the doctor was involved in a fatal vehicle crash for which he subsequently plead no contest to two counts of vehicular homicide in the second degree
The doctor later admitted he had consumed several beers and taken Quaalude’s the prior night
The Georgia Court of Appeals found that reviewing a patient’s chart and concluding his services were not required while under the influence was a departure from the minimal standard of acceptable and prevailing medical practice
Composite State Bd. of Med. Examiners v. Hertell, 163 Ga. App. 665, 295 S.E.2d 223 (1982)

11. “America’s prescription drug epidemic reaches deep into the medical community. Across the country, more than 100,000 doctors, nurses, technicians and other health professionals struggle with abuse or addiction, mostly involving narcotics such as oxycodone and fentanyl. Their knowledge and access make their problems especially hard to detect. Yet the risks they pose – to the public and to themselves – are enormous.”
In New York, there was an “overdose death of a physician who, after returning from drug rehabilitation, was given operating room duty, where she had ready access to the propofol that killed her.”
“There are so many practitioners working impaired and we have no idea.”

12. USA Today found: However, this is
“An average of 103,000 doctors, nurses, medical technicians and health care aides a year were abusing or dependent on illicit drugs. Various studies suggest the number could be far higher; an estimated one in 10 practitioners will fall into drug or alcohol abuse at some point in their lives, mirroring the general population.”
However, this is
“Easily hidden,”
“Poorly policed,” and
“Only a sliver of the health care practitioners who use drugs get caught.”

13. Doctors admitted to USA Today:
“I worked impaired every day; looking back, it scares me to death, what I could have done”
“Sometimes I’d go to the bathroom in the middle of a long surgery to take medication”
“At the time, I didn’t think I was impaired. But I was”
USA Today found PHPs “enroll only a fraction of the doctors, nurses and other health care providers who struggle with substance abuse” and “Enrolled physicians often were allowed to continue in supervised practice, but there were repeated instances in which participants relapsed without alerting their monitors, cheated on drug tests and worked impaired”

14. “In 2008, [a hospital technician] was caught stealing fentanyl syringes at a hospital in Pittsburgh. In 2010, he was found passed out in the bathroom of a hospital in Phoenix, an empty fentanyl syringe in the toilet. In 2011, co-workers at a hospital in Exeter, N.H., were concerned that he was acting strangely, sweating, running to the bathroom during procedures.”
“But it wasn’t until several patients in Exeter developed identical strains of the debilitating hepatitis C virus that he finally was investigated and stopped.”
“He was sentenced to 39 years in prison.”
He “had been fired, disciplined by a state licensing board, and investigated by police,” but “there is no national databases to track misconduct by medical technicians.”

15. “When the University of Tennessee Medical Center in Knoxville cracked down on drug diversion with a series of new controls – video surveillance, medication accounting systems, and internal reporting rules – the problem proved larger than anyone expected.”
The hospital’s then manager of controlled substance surveillance told USA Today, “I was catching at least one health care provider every month stealing medication.”
“Disciplinary actions by medical boards and hospitals also are rare. From 2010 to 2013, only about 750 physicians nationwide lost hospital privileges or had their license revoked or restricted for being unable to practice safely because of drug or alcohol abuse, according to a USA Today analysis of the government’s National Practitioner Data Bank public file.”

18. You Have a License to Kill
Whether you are prescribing and administering inappropriate medications, or
You are misusing/abusing drugs and alcohol yourself,
You have placed your patients health and safety at risk and have given yourself a license to kill!

19. So, What Do You Do? You might need to stop working
You might need to reduce your work schedule or responsibilities
You need to get into recovery and stay there

20. The Three Pillars of Recovery
Your treatment team
The PHP or medical board
Your legal team
The goal is to have the three pillars work together as the foundation and building blocks of your recovery, improving your health, and returning you to work

21. How Do The Three Pillars Work Together?
Compliance with treatment leads to compliance with the PHP and your disability policy
Compliance with appropriate treatment recommended by your treatment team increases the probability of maintaining recovery and improving your health
The PHP wants to see appropriate and directed treatment to show you are not a danger to the public and fit to practice
Your disability policy provides benefit payments when you show an inability to perform your occupational duties, documented illness, and compliance with appropriate treatment

22. Recovery: Total Focus and Dedication
Your disability policy is one of three pillars of recovery
It allows you to focus on recovery,
It helps prevent distractions and reduce stress from financial issues, and
It is a valuable return to work tool for recovering professionals
Your disability benefits allow you to step away from work in order to take care of yourself

23. Stopping or Reducing Work?
Remember, most disability policies provide total and partial/residual disability benefits
Therefore,
You may be unable to work altogether and receive total disability
You may be unable to perform some of your duties or need to cut back your hours and receive partial disability
After not working, you may be able to return on a limited basis and transition from total disability to partial disability before returning to work full time
Or, you may be able to return to work in another occupation consistent with your health and continue to receive total or partial disability

24. Disability Insurance Policies
There are essentially two types of disability policies under which you may be covered:
Individual Disability Income Policy (DI policy)
Group Policy or Long-Term Disability Policy (LTD policy)

25. Total Disability
Usually means the inability to perform the material and substantial, or important duties, of your regular or own occupation
In addition, there is a physician’s care requirement which varies by policy

26. Partial/Residual Disability
Usually means the ability to perform one or more of the material and substantial, or important duties
Or, the ability to perform all duties but for less time
Contains an income loss requirement
Physician’s care requirement

27. Top Ten List of Things Doctors Get Wrong

28. Not Knowing What Those Issues Are!
Criminal Liability
Liability insurance
Licensure
Professional societies
Employment
Domestic
Solo practice
Financial
Partnership / shareholder
Immigration status
Loss of Medicare / Medicaid provider status
Disability
State and Federal
Loss of Preferred Provider Organization provider status
Individual
Group
Loss of staff privileges
Professional liability
Contractual losses

29. Not Understanding Your Disability Policy
Remember, there are essentially two types of disability policies under which you may be insured:
Your Individual Disability Income Policy (DI policy),
Your Group Policy or Long-Term Disability Policy (LTD policy)
Group policies are generally controlled by the Employee Retirement Income Security Act of 1974 (ERISA)

30. Not Understanding Your Disability Policy
Important DI Policy Provisions:
Total & Partial Disability
Physician’s Care
Pre-Existing Conditions
Incontestability Clause
Important LTD Policy Provisions:
Total & Partial Disability
Physician’s Care
Mental Illness Limitations
Drug & Alcohol Limitations
Pre-Existing Conditions
Offset Provisions

31. Not Understanding Your Occupational Duties
Own Occupation: The specific occupation you are engaged in at the time of onset of your disabling condition; and not your occupation generally
General Practice vs. Specialty
Surgeon = Specialty = “Own Occupation”
Other occupational duties, such as
Administrator, Entrepreneur, Professor, Department Chair
Make sure your treatment providers understand your occupational duties

32. Thinking This is Blue Cross Blue Shield
This is not as simple as when you submit a billing code to Blue Cross Blue Shield
For every person claiming disability or on disability, the insurance company must set aside a reserve
This appears as millions of dollars in losses on their books
Their shareholders don’t like that!

33. Not Having the Right Doctor
Physician’s Care Requirement:
Care provisions include those ranging from care of a Physician, regular care and attendance of a Physician, to receiving care, which is appropriate for the condition causing the disability

34. Not Having the Right Doctor
You must see the right specialist for each of your specific medical conditions
Ex: Treating with an Internist for depression; not treating with addiction specialists for addiction
You should treat with the best board-certified, credentialed doctors for each specific condition
Appropriate Care = Appropriate care given by the appropriate caregiver

35. Not Following Your Treatment Plan
Full compliance with your state PHP contract
Receiving care which is appropriate by the appropriate caregivers
Failure to do so can lead to:
Not satisfying policy contractually
Causes company to attack severity
Sets up employment of “risk of relapse” defense

36. Seeking Wrong Advice Accepting advice from: Your colleagues
Insurance agent
Financial consultant
Others who have been or are on claim
The Internet
Unqualified “Consultants”
Others with little or no knowledge of the process / case law / interpretation

37. Trusting Your Disability Insurance Company is Looking Out for Your Best Interest
You may be at or near the bottom of your life and extremely vulnerable
Your disability insurance company can potentially exploit your vulnerabilities
Insurance companies are profit driven

38. Thinking You’re Smarter Than Your Disability Insurance Company
You probably are!
BUT:
You are emotionally invested in this
It’s their job and your life
This is their business, they handle these cases every day
They have teams of smart internal forensically trained medical experts
They have investigators conducting field meetings and surveillance
They employ outside IME doctors
They have trained claims people reviewing every detail
They have internal and outside legal departments overseeing

39. Live your life, but be smart about it
Doing Stupid Things
Social Media
Surveillance
Field Representative Meetings
Independent Medical Examination
Live your life, but be smart about it

40. Case Study Anesthesiologist
Age 30: Obtains medical license and went into private practice.
Age 33: 5 month medical board mandated probation for unprofessional conduct.
Age 38: Admitted to a hospital for chemical dependency and treated for depression.
Early 40’s: Begins drinking regularly.

41. Case Study Age 41: Purchases Individual Disability Insurance.
Discloses prior treatment, policy issued standard
Age 48: Leaves private practice and joins a small Group performing full-time OR anesthesiology duties making $500,000.
Age 55: Relapses, Begins using opioids, Confronted by Group and employment terminated.
Admitted to a treatment center for three months and released to aftercare program; eventually able RTW
Enters into 5 year contract with state PHP
Enters into CA with state medical board
Stayed suspension subject to adherence to CA

42. Case Study Files claim with DI carrier and is paid until RTW
Following treatment, hired by a large Group, eventually performing full-time OR anesthesiology duties, receives full-time salary of $250,000.
Obtains Long-Term Disability Insurance through large Group employer.

43. Case Study Age 58: Relapses on Opiates
Reports to state PHP; violates PHP contract
Reports to state medical board
Violates CA
License suspended
Given 5 years to petition board for reinstatement of license, subject to the following terms:
Evaluation at same treatment center as previously
Follow all treatment recommendations
Subject to fitness to practice
If the above is not completed to board satisfaction within 5 years, license is revoked

44. Case Study
Terminated from Group because employment contract violated – no active license
Fails to complete any Board requirements and license is revoked
Receives outpatient treatment only
Files claim with DI insurance carrier.
Denied based on issues of legal disability, appropriate care, and severity.
Files claim with LTD insurance carrier.
Denied based on policy terminating when employment terminated based on no active license

45. Case Study: Issues Coverage Pre-Existing Conditions – 3/12
LTD Policy
DI Policy
Coverage
Pre-Existing Conditions – 3/12
D & A limitation – 2 years
M/N limitation – 2 years
Legal disability – License; Board requirements
Total Disability
Residual Disability
Severity
Appropriate Care
Received outpatient care only
Failed to follow Board recommendations / requirements
Employment

46. Case Study: Results
LTD insurance carrier entered into a settlement agreement paying Total Disability for 2 years consistent with D&A and M/N limitations of the policy.
DI insurance carrier entered into a settlement agreement paying Residual Disability benefits for time worked at large Group with decreased pay and Total Disability benefits going forward after second relapse.

47. 888-699-4222 www.SeltzerLegal.com
Thank You