It is not wisdom but Authority that makes a law—Thomas Hobbes

In Questions of science, the authority of a thousand is not worth the humble reasoning of a single individual— Galileo Galilei

Regulatory Decisions and Public Policy 

Making sound decisions about regulation calls for an understanding of the problem it is intended to solve. Legitimate policy must be based on recognized institutions and experts. Regulatory changes demand methodologically sound science and evidence-based facts arrived at through rigorous peer review and professional oversight. The science must be reliable and unbiased. Legitimate policy must be based on legitimate institutions and expert authority grounded in wisdom. Authoritative opinion needs to be assembled with facts and best available evidence guided by science and critical reasoning to best solve a particular problem and benefit the greater good.

If the information regulatory agencies rely on to make regulatory decisions and public policy is unreliable then bad decisions, wrong decisions and flawed public policy are inevitable.   Consequences can be far-reaching and grave.

The impact of the close alliance between state medical boards and their state physician health programs (PHPs) and their national organizations on this failure to achieve the public goals with which they have been tasked has not been considered. It needs to be as the consequences of relying on this illegitimate and irrational authority have indeed been far-reaching and grave. Some of the nonsense pushed forth by the PHP movement and given “regulatory sanctification” by state medical boards is beyond belief. It would be comical if the results were not so tragic.

State Medical Boards

A physician’s right to practice medicine is granted by the state medical board in the form of a medical license. Each state has a medical practice act that defines the practice of medicine and used to regulate the medical profession. The medical board is empowered to identify and take action against doctors for substandard care, unprofessional behavior and other violations as defined by the state medical practice act. Given that medical boards are state agencies, their authority is subject to traditional constitutional constraints including equal protection and procedural due process limitations.

State Medical Boards have faced criticisms for being lax in their duty to protect the public from dangerous doctors.^1,2 A recent study in the New England Journal of Medicine found that just 1% of physicians accounted for 32% of paid malpractice claims.³ One physician had at least 31 malpractice totaling more than $10 million in damages and nine of those payments were related to “failure to use proper aseptic technique” while another had at least 21 malpractice payments including eight improperly performed surgeries, three unnecessary surgeries and two surgeries on the wrong body part.   Neither of these doctors faced disciplinary action from their state medical board.

Failing to recognize the germ theory by failing to meet even the most basic standards of cleanliness and wrong-side surgery are egregious. The fact that these are not isolated one-offs but repeat offenders is reprehensible.     There is clearly something wrong with a system that allows such unfettered idiocy to flourish.

On the other hand there are increasing reports of excellent doctors with no history of malpractice or patient harm losing their licenses after one-offs, minor infractions or nothing at all.

The public’s goals would be better served if boards exercised their discretion against physicians who violate the most basic standards of professionalism and competency. They are failing to achieve this task.

The Federation of State Medical Boards (FSMB)

The Federation of State Medical Boards (FSMB) is a national not-for profit organization that gives guidance to state medical boards through public policy development and recommendations on issues pertinent to medical regulation.

Shortly after its founding in 1912, the Federation of State Medical Boards began publishing a quarterly journal addressing issues relating to medical licensing and regulation of doctors. First published in 1913 as the Quarterly of the Federation of State Boards of the United States, the publication has undergone several name changes and publication schedules. The archival organization and availability of full articles published sequentially over the past century is historically invaluable as it provides not only the regulatory by the national organization involved in the medical licensing and regulation of doctors and this archival organization facilitates an unskewed and impartial examination in its historical context. A focus on sound decision-making can be seen in the regulatory and legal medicine literature up until the 1990s.

For example when drug-testing was first introduced questions of validity became a genuine topic of concern.

By the late 1980s almost every state medical board was utilizing random drug and alcohol testing.   Noting that “not all testing methods and results are created equal,” South Carolina State Board of Medical Examiners executive director Stephen S. Seeling, J.D. addressed the critical importance of accuracy and reliability in the Federation Bulletin in 1988 and cautioned that “if boards wish to be able to use positive results of drug screens in administrative or legal proceedings, great care must be taken to insure that the results are accurate, reliable and thus legally probative.” ⁴ Suggesting that board members and board attorneys be familiar with specific testing methodologies Seeling concludes that:

Random drug testing is an important tool for every board in its mission to protect the public and maintain the integrity of the medical profession. Careful attention however must be given to this process to insure the reliability and legal defensibility of testing results. Failure to do so could diminish the board’s credibility in the eyes of the profession and the public, and expose the board to potentially serious legal challenges.”⁴

This sound decision-making unfortunately took a nasty left turn in 1995. In that year the Federation of State Physician Health Programs (FSPHP) forged a relationship with the Federation of State Medical Boards. They have been going strong ever since.

1995 FSPHP/FSMB Alliance

The Sick Physician: Impairment by Psychiatric Disorders, Including Alcoholism and Drug Dependence, published in JAMA in 1973,⁵ recommended that state medical societies establish programs to identify and treat “impaired physicians” which the AMA defined as “a physician who is unable to practice medicine with reasonable skill and safety to patients because of mental illness or excessive use or abuse of drugs, including alcohol.”

Physician Health Programs (PHPs) were subsequently developed to assist with the goal of rehabilitating and monitoring doctors as an alternative to disciplinary action by state medical boards. Preferring rehabilitation to probation or license revocation so long as the public was protected from imminent danger, most medical boards accepted the concept with support and referrals.

PHPs existed in almost ever state by 1980. Often staffed by volunteer physicians and funded by the state medical society, these programs served the dual purpose of helping sick doctors and protecting the public. As an alternative to disciplinary action these programs advocated for physicians who developed illness, assured they got proper treatment and provided monitoring to assure they remained healthy. The mechanics and mentality of PHPs were initially quite variable.

The model used today came out of the “impaired physician movement,” which according to British sociologist G. V. Stimson is “characterized by a number of evangelical recovered alcoholic and addict physicians, whose recovery has been accompanied by an involvement in medical society and treatment programs. Their ability to make authoritative pronouncements on physician impairment is based on their own claim to insider’s knowledge.”⁶

In 1987, the Atlanta Journal and Constitution ran a series of reports after five patients in the “Impaired Professionals” program at Ridgeview Institute created by G. Douglas Talbott in Atlanta killed themselves⁷ and least 20 more died by suicide after leaving Ridgeview.⁸ It was reported doctors were coerced into Ridgeview and then threatened and bullied to comply with any and all demands under threat of loss of licensure. All patients were indoctrinated into A.A. and forced to confess they were alcoholics or addicts or threatened with expulsion and with not being certified or advocated for with their Medical Boards.

A “recovering” alcoholic and addict who had previously been a successful cardiologist Talbott created the DeKalb County Impaired Physicians Committee for the Medical Association of Georgia in 1975 and subsequently founded the Georgia Disabled Doctors Program for the assessment and treatment of physicians, in part because “traditional one-month treatment programs are inadequate for disabled doctors.” He created the “Impaired Professionals” program at Ridgeview to provide this specialized treatment. The Constitution reported that doctors entered the program under “threats of loss of licensure even when they would prefer treatment that is cheaper and closer to home,” ⁹ because Ridgeview “enjoys unparalleled connections with many local and state medical societies that work with troubled doctors,” and “licensing boards often seek recommendations from such groups in devising an approved treatment plan”

The Constitution reported that those in charge of the program are often “physicians who themselves have successfully completed Ridgeview’s program.”⁹  The impaired physician movement emphasizes disease and therapy, rather than discipline and punishment. They believe that alcoholism and addiction is a chronic relapsing brain disease requiring lifelong abstinence and 12-step spiritual recovery. The drug or alcohol abuser or addict is a person lacking adequate internal controls over his behavior and for his own protection as well as the protection of society external restraints are required including involuntary treatment.

“Contingency-management,” or systematic use of reinforcement is a type of treatment used in the mental health field in which patient’s behaviors are rewarded (or less often punished). It has successfully been used in substance abuse treatment by using prizes or vouchers for positive reinforcement by, for example giving prizes or vouchers for negative drug screens or following up for an appointment.^10,11. At Ridgeview, a doctor’s medical license was being used as the leverage. This is not contingency management. It is extortion.

Many addiction professionals were highly critical of Talbott’s methods, including LeClair Bissell.⁷ and Assistant Surgeon General John C. Duffy who said that Ridgeview suffered from a “boot-camp mentality” toward physicians under their care.”⁸   “”

Talbott justified this length of stay because he claimed doctors were unique because of what he calls the “four-MDs,” ”M-Deity”, “Massive Denial” “Militant Defensiveness” and “More Drugs.”¹²

The cost of a 28 day program at Ridgeview was $10,000 but far more for the thrice lengthy stay required by healthcare professionals..⁸  I would say the impetus behind this is due to just “two-MDs,” “Medical License,” and “More Money.”

A jury awarded $1.3 million to the widow of one of the deceased physicians against Ridgeview,¹³ and other lawsuits initiated on behalf of suicides were settled out of court, but nothing else has changed.¹⁴

These suicides did not generate any reaction from the medical community at large and any doctor referred by a PHP for an assessment today will spend at least 3 months in treatment. ”   It is inevitable. The Dicto simpliciter argument of “terminal uniqueness” has been cemented as in 1995 this PHP model won the lottery.   A 1995 issue of The Federal Bulletin: The Journal of Medical Licensure and Discipline, published by the Federation of State Medical Boards, contains articles outlining PHP programs in 8 separate states. Although these articles were little more than descriptive promotional pieces written by state PHP program directors with no described study-design or methodology the journals Editor proclaimed “the success rate of the programs and others like them approach 90%.” ¹⁵ and “cooperation and communication between the medical boards and the physician health programs must occur in an effort to protect the public while assisting impaired physicians in their recovery.” ¹⁵ The 8 state PHPs were all based on Talbott’s methodology.

Nonsense such as the “four-MDs” and thrice lengthy treatment has been accepted without scrutiny. Logical fallacy is written as science. For example Merlo and Gold use the “appeal to consequences” logical fallacy to justify the extended length of stay stating that “physicians with a substance use disorder are not typical of addicts in general, it is not useful to apply standard professional guidelines… Rather, because of the public health consequences of relapse, most physicians who are addicted are treated more aggressively and for longer periods” than non-physicians.

According to Merlo and Gold “Physicians will lobby for a level of care that minimizes the disruption of their daily life. However, it is generally not advisable to grant the physician’s request for treatment in the least restrictive environment, but rather to maximize the treatment dose and duration to improve effectiveness and reduce the likelihood of relapse and further damage to health, family, and the ability to practice. Depending on the response to treatment, physicians typically undergo 3 to 6 months of intensive treatment in a structured program and 5 years of urine testing with controlled, contingency-managed outpatient follow-up.¹⁶ This  gibberish has no basis in reality. It is made up out of whole cloth.  No evidence-base exists and it is  propaganda based fear that defies not only reason but common sense.

“Potentially Impairing Illness” “Relapse Without Use” “Dumb and Dumber”

 The Federation of State Medical Boards House of Delegates adopted an updated Policy on Physician Impairment at their 2011 annual meeting approved the concept of “potentially impairing illness.”

According to the Federation of State Physician Health Programs …”physician illness and impairment exist on a continuum with illness typically predating impairment, often by many years. This is a critically important distinction. Illness is the existence of a disease. Impairment is a functional classification and implies the inability of the person affected by disease to perform specific activities.”

“Process addiction” was added as a potentially impairing illness including compulsive gambling, compulsive spending, compulsive video gaming, and “workaholism.” According to the FSPHP “the presence of a process addiction can be problematic or even impairing in itself, and it can contribute to relapse of a physician in recovery. As such, process addictions should be identified and treated.” They define three levels of relapse. “Relapse without use” is a 12-step concept. G. Douglas Talbott defines it as “stinkin thinkin.”

According to Judith Eaton of the Massachusetts PHP, Physician Health Services, Inc. (PHS), not having “complete, accurate, and up-to-date records” could be a red flag for such a potentially impairing illness as “when something so necessary is not getting done, it is prudent to explore what else might be going on.”

The FSMB and state medical boards have gone on to condone polygraph testing and non-validated neuropsychological testing pseudoscience in their “disruptive physician” exams.   Is the magic 8 ball and tea leaves next? How low does the credibility compass have to go before someone stands up and calls bullshit on this carnival?   The most egregious of indiscretions has been the introduction and acceptance of junk-science.

“Medical Sanctification of Junk-science”

Those behind the Inquisition knew they did not have to convince everyone to get what they wanted, just Ecclesiastical and political authority. The same applies here. Ethyl Glucuronide (EtG) was introduced in 1999 as a biomarker for alcohol consumption,¹⁷ and subsequently suggested as a tool to monitor health professionals by Dr. Gregory Skipper because of its high sensitivity to ethanol ingestion.

What is so egregious about this is there was absolutely no evidence base. Skipper, who was convicted of a felony in Oregon and had his licenser revoked but got it back by claiming he was redeemed through A.A. read about it and after a study on just 14 patients pitched it to a drug testing company as a Laboratory Developed Test (LDT). The LDT pathway is a shortcut to get lab tests approved (under the premise that it will be used in treating a person medically and is thus of benefit) but Skipper took advantage of this loophole to develop a “forensic” LDT. He then used his position as the Alabama PHP Director to pitch it to the Medical Board before the ink dried.

As an LDT the FDA has no control over advertising so the lab can make any claims they want and in this case they claimed a positive EtG (> 100) was definitive proof of drinking. The State PHPs started using them on physicians. As PHPs were using them, the labs were able to sell it to other groups seeing they were “medically sanctified.” The test was subsequently found to be so sensitive that it could measure incidental exposure to alcohol in foods, over the counter cold medications, mouthwash^18,19, hand sanitizer gel²⁰, and nonalcoholic wine.²¹ Sauerkraut and bananas have even been shown to cause positive EtG levels.

After a Wall Street Journal Article came out debunking the test most monitoring programs abandoned it. PHPs did not. Talbott puts out a list of literally hundreds of products doctors need to avoid including colognes, mouthwashes, and foods.

Skipper simply kept raising the cutoff point from 100 to 250 to 500. It is now known hand sanitizer alone can cause a level of 2000. He subsequently introduced other tests as confirmatory tests.

Many people had licenses revoked, loss of custody of their children, went back to jail, and suffered multiple other losses. If you look at the evidence base it is absent. There is nothing. The emperor has not clothes. This is a racket and the damage has been grave.

These same people are trying to sell the “PHP-blueprint” and its array of non-validated test to other populations as the “new paradigm” just as they did with the snake oil tests. The same carney hucksters are promoting the whole enchilada as a package deal. In “Six lessons from state physician health programs to promote long-term recovery” Robert Dupont and Dr. Greg Skipper attribute a high success rate to the following factors:²²

(1) Zero tolerance for any use of alcohol and other drugs;

(2) Thorough evaluation and patient-focused care;

(3) Prolonged, frequent random testing for both alcohol and other drugs;

(4) Effective use of leverage;

(5) Defining and managing relapses; and

(6) The goal of lifelong recovery rooted in the 12-Step fellowships.²²

Caveat emptor people. Caveat emptor!  Any argument should be based on its own merits and methodology and evidence must be examined to discern its validity. Hopefully other agencies will look at this with a more jaundiced eye and less obtusity than the FSMB and state medical boards.

Unfortunately the position of the regulatory agencies towards this illegitimate authority and irrational authority has been one of uncritical acceptance and blind faith. It is the absence of objective assessment and critical analysis that has enabled the FSPHP and PHPs to gain tremendous sway in the medical profession and cause tremendous harm to the medical profession. By confusing ideological opinions with professional knowledge the medical boards have rubber stamped whatever’s been thrown their way and for this they should be ashamed. The impact of this close alliance between state medical boards and their state physician health programs (PHPs) and their national organizations on the current state of medicine has not been examined. It needs to be.

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