Illegal or Legal Pot Use and the Medical Professional in Pennsylvania

Impaired medical professionals caring for the public is a main concern of marijuana legalization, medical or otherwise, to which the states’ legislatures’ attention has been drawn. What was typically not-to-fertile an enforcement area has become overridden with “weeds” of impaired physicians, nurses, physician assistants, and all other licensed professionals getting caught high on or off the job. These cases involve professionals legally or illegally utilizing marijuana in any number of jurisdictions and then either treating patients in their legalized jurisdiction or returning to Pennsylvania -a non-legalized jurisdiction – and practicing impaired.

I am finding that Pennsylvania’s enforcement protocols are the same as those in marijuana legalized jurisdictions; focus is on the impairment, not necessarily the illegal use. Currently, Pennsylvania’s policy decision is per se impairment (simply having traces of pot in your system based upon a positive drug test) rather than having to establish proof of  impairment level. Standardized dosing calculations for many prescriptions and alcohol allow for easy calculation of intoxication levels and corollary degrees of impairment. Licensing Board experts acknowledge there does not exist a similar calculus of impairment for marijuana use.

Pennsylvania’s licensing boards are trying to avoid dosing and impairment calculation issues. Prosecutors are simply filing a petition for a mental and physical examination and letting a drug addiction expert professionally evaluate the professional. I attend and prepare my clients for these evaluations as they are an easy disciplinary trap for the unprepared.

My previous blogs address the many ways impaired professionals’ cases are brought to be attention of the licensing boards. The concern in the prescribed marijuana-positive-drug testing case is if the medical licensee has a medical condition warranting a prescription for the medical marijuana. (Not yet in Pa.) Here, the medical practitioner is too scared for that medical condition to be present in their medical records indicating a level of health impairment requiring  medical marijuana. The professional either self-prescribes or pays privately for the medical marijuana prescription. Under either scenario, the underlying medical condition provides an independent basis for license restrictions.

Medical practitioners acknowledge many doctors or nurses are under the influence of impairment causing medications but are being medically supervised by someone else. This is to be compared with personal or medical marijuana use that is illegally purchased, self-prescribed, self-administered, with no medical oversight. In these cases, licensing boards are treating these cases like all other impaired professionals who take prescribed medications that render them incapable of practicing their profession safely. The disciplinary implications are greater because of impairment issues, record keeping violations for the self-prescriber, and in Pennsylvania the illegal nature by which the marijuana is secured.

Pennsylvania’s licensing boards’ strict approach to physicians focuses of other states’ experiences that pot “impaired” or “high” physicians commit more medical errors that non-impaired practitioners. Studies exists suggesting that that among airline pilots, impairment on flight simulators persisted up to 24 hours after smoking a marijuana cigarette, even though subjects were unaware of it (Am J Psych. 1985;142:1325-1329). Another study showed decision-making errors 50% to 70% of the time in long-time marijuana users compared with 8% of the time in nonusers (Neurology. 2006;66:737-739).

Public safety and conservative approaches will permeate this issue in Pennsylvania. Call me to discuss any Pennsylvania professional board impairment allegations.

Mandatory Drug Testing of Doctors Will Be Here

California is about to pass a law allowing random mandatory drug and alcohol tests for all physicians regardless of an employment or other event triggering reason. While Pennsylvania’s regulatory scheme is not yet this aggressive, DEA, federal OSHA, and Pennsylvania’s hospital reporting regulations already require event-based drug testing with confidential reporting and immunity for the reporting entity. Requiring doctors to now submit to random drug test, regardless of employment or professional setting, would be one more step in protecting medical consumers.

The significant difference between state random drug tests of doctors, rather than DEA- federal, is the vigilance with which Pennsylvania’s medical licensing board will investigate its recreational drug using physicians. Currently any medical practitioner that seeks emergency or other medical care, during which an illegal or non-prescribed scheduled narcotic is found in their blood, will be reported to the Board if the practitioner does not self-report. This will trigger a Board license investigation.

Random drug testing seeks to find the impaired physician rather than those physicians getting so bad that the impairment becomes obviously seen through criminal actions or poor behavior.  The importance of random drug tests is that they would reveal those physicians utilizing recreational drugs but functioning in a professional manner.  The Pennsylvania Medical Board will be equally hard on any type of drug using physician.

California’s step towards adopting this investigative tool is based upon the western states’  legalization of marijuana for personal use. Doctors are now legally getting high.  Unfortunately, the impairment presented by social recreational use of marijuana continues after the day of usage. Regulators are confronting professionals high on the job, rendering significant and serious medical decisions, but not necessarily showing signs of impairment.  Absent the random testing, a criminal investigation, or acute medical treatment, investigators and regulators will now be able to learn of a physician’s inappropriate recreation use illegal drugs.  This is for consumer protection.

California’s choice to do random drug tests indicates that it is going to be a per se violation state rather than an impairment state. By this I mean that regardless of whether the physician is impaired by the recreational drug of choice, the mere presence of that illegal substance in their blood will render them in violation of the regulatory scheme. This is currently the rule in Pennsylvania with regard to our driving under the influence laws. Conversely, New Jersey is an impairment state, requiring the state to prove the illegal substance caused “impairment” at the time at the time of investigation. California is seeking to not have to prove the impairment, just the use of illegal drugs.

Pennsylvania’s current medical regulatory scheme authorizes investigation and drug testing for suspicions of impairment as a result of anonymous tips or workplace events. California’s doctors are just now being brought into the modern age of regulatory investigation and consumer protection. The policy issue is do you want your doctor to be under the influence of an illegal substance while he/she is medically treating you or your family members. While there probably is a current similar scheme regarding suspicions of impairment, now California, and eventually the rest of the states, will use random testing to avoid the necessity of a have reasonable suspicion of an impairment to trigger testing.

All other the drug testing provision would still be enforced through the existing regulatory provisions. Alleged violations would be reported to the California Medical Board. As stated above, another provisions requiring hospitals to report the name of doctor suspected of abusing drugs or alcohol is also present, Pennsylvania already enforces this regulatory requirement regardless of whether the impairment is a prescription or illegal drug  abuse.

Please call me to discuss your medical license investigatory issues initiated by the Pennsylvania Medical Board as a result of your recreational or social use of illegal substances that do not affect your professional abilities.

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