By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
“Do I have a drinking problem?” This question, for mere mortals, is typically one of definition. Whether you are in denial, or just a social drinker, you might want to haggle over what exactly constitutes a “drinking problem?”
But, if you are a doctor (which is sort of a “superpower”), the Texas Medical Board isn’t going to play around with definitions. The Texas Medical Board works alongside the Texas Physician Health Program (“PHP”), which is the state agency in Texas tasked with monitoring doctors who may not be able to practice safely due to an impairing or potentially impairing health condition.
If you are a doctor and you land here, I can offer these general pointers, which might also be helpful for people who aren’t doctors, but could learn a thing or two from the “tough love” way the medical board handles alcohol.
Number one, at the TMB you have a “drinking problem” until proven otherwise. If you land either at the Texas Medical Board or the Texas Physician Health Program, either from a self-report or a third- party report, and the word “alcohol” is in the complaint, you are considered to automatically have a “drinking problem” until proven otherwise.
It doesn’t matter that you agree. In fact, whether you agree is irrelevant, as this “denial” is precisely the thing a person with a drinking problem would attempt to sell to get his “bot bot” back.
Importantly, and I can’t emphasize this enough to my doctors, “it’s not about you.” (Even though it is.) The Texas Medical Board views this situation as one in which they now have your “drinking problem” to deal with. The question becomes for the medical board, “what do they need to do to protect the public?,” while they get you back on the right track.
Number two, there are two tracks, disciplinary and the PHP Program. Assuming no one has been injured, and you are not an immediate threat to public welfare that requires suspension, you will be offered the opportunity to voluntarily enter the PHP program. If you don’t accept this offer, you can go the disciplinary route, which will probably land you right back in the PHP program.
Experts at the Texas Physician Health Program on the PHP website explain the reason for this, that the “work environment” is typically the last place problems with alcohol show up. The aim here is to halt any kind of drinking problem, on whatever level it might be, before it threatens patient safety.
Number three, if you land at the PHP program, your drinking days are likely over. The typical concern of a doctor in this situation is often one of personal embarrassment and possibly concern over lifestyle implications. This might not seem fair. You might be right. These agencies are not trying to be “fair.” They are trying to make sure you are not a danger to the public. It just makes sense, if they are going to risk getting this wrong, it will be on the side of caution.
Number four, you usually won’t be disciplined if you enter the PHP Program. The benefit of entering the PHP program is that you won’t be punished, as if you are a “bad person.” They just want to make sure you are not a danger. That’s why your drinking days are over.
Number five, they are not going to trust you. You will be given every test available, from hair follicle analysis (which is both qualitative and quantitative for substances), a lie detector test, and an in-person interview. I could be wrong here, but I think the lie detector test is less diagnostic, and more to help ensure that you tell the truth in the interview.
Number six, unless all the tests are negative, you likely will be asked to sign a contract in which you agree to refrain from drinking for a period of time. Five years is common, and you will be required to go to AA meetings. You will also likely be required to agree to monitoring for some period of time and random toxicology testing. This makes sure that you have kept your promise not to drink.
Number seven, if you fail any of the agreed terms of your PHP contract, you will be reported to the Medical Board for disciplinary action. You end up back in the disciplinary track. The board might shout a little louder this time. This could include either an active or probated suspension of your license, until you demonstrate that you are compliant.
If all this seems a bit harsh, you must see this from the viewpoint of the Texas Medical Board. The board members aren’t prescient and can’t tell from talking to you whether you are going to harm a patient due to alcohol. What they want you to do is quit drinking. That is the only way they know you aren’t a problem. And if they monitor you, then that means you know the medical board will find out if you start again, which makes you far less a concern to the board, and far less likely a danger to the public.