Explore This IssueACEP Now: Vol 37 – No 12 – December 2018
ACEP Now and Dr. Haney won a 2019 EXCEL Gold Award for best editorial/opinion piece in a magazine Congratulations, Dr. Haney!
I am a board-certified emergency physician licensed to practice medicine in Oregon since 2001. I am a competent and caring physician. I have never been accused of professional misconduct or incompetence, and I have never been sued for malpractice.
I also have a history of recurrent episodes of major depression. Up until 10 years ago, I managed my depression privately without interference or oversight from any medical licensing board. I had never been hospitalized because of mental illness. I had never missed a day of work due to mental illness.
While on vacation in March 2006, I had a severe asthma exacerbation that required an extended course of high-dose prednisone. Experienced prescribers, and many patients, know that mild dose-dependent mood and cognitive changes are fairly common during corticosteroid therapy and that more severe psychiatric side effects are occasionally seen at higher dosage levels.1 The prednisone caused me to become clinically manic for the first time in my life. I realized that my judgment was becoming impaired, so I reported my illness to my employer in order to arrange for a brief medical leave of absence. I also contacted my primary care physician, who had appropriately prescribed the prednisone, and my personal psychiatrist, and I re-established care with a previous psychotherapist. After discussing this matter with a colleague, I asked my employer whether I should preemptively report my illness to the state medical board in order to keep my professional credentials unblemished by rumors about the cause and severity of my symptoms. In response, my employer decided to require that I obtain written permission from the Oregon Board of Medical Examiners (BME) before permitting me to resume work.
I immediately called the BME’s physician health program, the Health Professionals Program (HPP), hoping to obtain confidential help. The HPP staff informed me that without a “chemical component” (addiction or substance abuse) to my diagnosis, they were not able to assist me. They recommended that I instead discuss this matter directly with the BME’s medical director. The medical director, a retired general surgeon, told me that the only way I could obtain written permission authorizing my return to work was to open a formal board investigation into my fitness to practice medicine. Thinking I had nothing to fear from this process (after all, I was fully cooperative and hadn’t done anything wrong), I naively asked that the investigation begin.
The Investigation and Aftermath
During the investigation, which lasted nearly four months, the BME would not permit me to return to work. It required that I disclose intimate personal details of my psychological and psychiatric history to anybody at the BME who requested them. None of the BME staff who investigated me were psychiatrists or psychologists, and most of them were not even health care professionals. My only direct contact with the BME during that time was through an investigator with a background in law enforcement. This investigator successfully discouraged me from seeking legal assistance because of the potential for prolonging the BME investigation and further delaying my return to work. Despite numerous requests, BME staff would not allow me to appear in person or to testify in my own defense.
At the conclusion of the investigation, the BME issued a non-disciplinary public “corrective action order,” effectively announcing my mental illness to the general public. This order required that I continue psychiatric care, that I maintain a physician-patient relationship with a primary care physician, and that I refrain from the abuse of drugs or alcohol, all of which I had already been doing. The order was published in the BME’s quarterly newsletter, was picked up and published by my local newspaper, and was made available on the BME’s public website, despite my objections and despite the fact that I did not act incorrectly and was not in violation of any regulation or statute as a result of my illness. Publication of this order was not based upon any actual threat that my illness posed to the general public but was rather a standard policy acted upon without regard to public safety or privacy considerations. There had been no allegations that I violated any medical practice standards at any time.
Because the BME did not have a program in place for formally monitoring physicians with mental illness, I was eventually referred back to the HPP. The HPP then constructed a psychiatric monitoring program for me so that I could finally be permitted to return to work. Despite the fact that I did not have a substance-use disorder, as a standard condition of HPP enrollment, I was required to participate in its faith-based 12-step addiction treatment program.2,3
I was also forced to sign release forms permitting full disclosure of sensitive, personal mental health information, including ongoing psychotherapy records, between the HPP, my health care providers, my employer, and the medical board. This information was shared and discussed (distorted and misinterpreted) by persons who were not qualified to evaluate it. As a result of this breach of my medical privacy, I fear I’ll never again feel safe within the private sanctity of a psychotherapeutic relationship. I was also denied the right to freely choose my own psychiatrist or psychologist, who required “preapproval” by the medical directors of the BME and HPP.
When I attempted to assert my rights to privacy, autonomy, religious freedom, and appropriate medical and mental health care, the BME threatened me with emergency suspension of my license unless I complied fully with the HPP. In response, in the spring of 2007, I finally hired an attorney and filed a federal lawsuit against the BME. In late 2012, the U.S. Court of Appeals for the Ninth Circuit upheld a district court opinion that “employees of a state medical review board are entitled to absolute immunity from civil suit for their quasi-judicial and quasi-prosecutorial acts” and that I had no legal recourse to contest BME or HPP decisions, no matter how injurious or unjust.
In 2007, I also filed an independent complaint with the U.S. Department of Health and Human Services Office for Civil Rights (HHS-OCR), alleging violation of my civil rights under the Americans with Disabilities Act (ADA) by the BME. Under pressure from both my civil suit and investigation by HHS-OCR in mid-2008, the BME voted to allow me to withdraw from the HPP in good standing.
I ultimately returned to full-time work as an emergency physician with an unrestricted medical license, despite the BME’s “correction” and certainly not because of it. However, the discrimination I experienced as a consequence of BME sanctions and publication of my private medical history continues to this day. I have been turned away by literally dozens of potential employers and credentialing bodies because I no longer have a “clean record.”
I had hoped that my legal actions against the BME and HPP could set a broader legal precedent to help protect physicians with mental illness from discrimination by state medical licensing board claims that illness equals impairment and that illness or impairment are sufficient causes for disciplinary action to “protect the public.” Ultimately, I have been successful only in retaining my own right to practice at a cost of more than $150,000 and 10 years of ongoing legal battles with board officials. In the process, I have learned that courts will generally defer to decisions by licensing agencies in cases where a physician has been labeled as allegedly “impaired,” even when those decisions violate the ADA and/or a physician’s right to due process of law and other constitutional rights.4
Not a Unique Experience
Unfortunately, my case is not that unique. Minnesota physician Steven H. Miles, MD, professor of medicine and bioethics at the University of Minnesota in Minneapolis, experienced discrimination from his state licensing board in 1996 when he disclosed the diagnosis and treatment of his mental illness on a routine relicensing questionnaire.5 The Minnesota Medical Board subsequently demanded all of his psychiatrist’s medical notes and records and threatened both Dr. Miles and his psychiatrist with disciplinary action if they did not comply. Only after spending thousands of dollars in legal fees and obtaining assistance from the U.S. Department of Justice for protection of his rights under the ADA was Dr. Miles ultimately able to preserve both his health care privacy and his unrestricted medical license.
In 1998, New York physician Michael J. Hason, MD, was initially denied a California state medical license due to his self-disclosed history of mental illness (depression).6 After California refused to license him, New York reflexively revoked his license there.7 After considerable outcry from disability rights advocacy groups, he was eventually granted a probationary license in California, subsequently unrestricted, where he currently practices.
In 2004, Washington physician Suzanne J. Fiala, MD, risked the humiliation and stigma of medical board scrutiny when she published her firsthand account of a practicing physician living (and working) with bipolar illness.8 Dr. Fiala correctly pointed out in her article that statistics indicate as many as one in five physicians suffers from a diagnosable mental disorder. Nonetheless, until meaningful changes are made to this repressive system, the threat of medical board investigation and other adverse professional consequences will continue to be powerful deterrents to seeking appropriate treatment.
Ten years after her article was published, Dr. Fiala was sanctioned by her medical board following a retaliatory complaint from a former patient arising from a custody dispute over a dog.9 This complaint would never have resulted in formal board action and a negative report to the National Practitioner Data Bank had she not revealed her history of mental illness.10
Acute episodes of mental illness (grief, dysthymia, depression, anxiety, insomnia, post-traumatic stress disorder, adverse medication reactions, etc.) can strike anyone at difficult times in their lives. People like me, Dr. Miles, Dr. Hason, Dr. Fiala, and thousands of others with recurring acute or chronic mental illness learn over time how to manage exacerbations of their symptoms, just as with any other chronic disease (eg, diabetes, asthma, arthritis, heart disease, etc.). Just as with other chronic health problems, mental illness has the potential to cause impairment in the workplace when it is not properly recognized and treated. However, unlike with other chronic health problems, in most states, physicians with any history of mental illness may be automatically assumed by their medical licensing board to have occupational impairment based simply upon their diagnosis.
This assumption, by definition, is prejudice. Because my state medical board chose to sanction my license, the stigma that is perpetuated by this prejudice will follow me for the rest of my professional career. I never wanted any of this to become public, but silence only perpetuates these inappropriate actions against our colleagues. I hope my openness ultimately translates to meaningful change and the rational and compassionate approach to mental health disclosures.
Dr. Haney is an emergency physician at Curry General Hospital in Gold Beach, Oregon.
- Brown ES, Chandler PA. Mood and cognitive changes during systemic corticosteroid therapy. Prim Care Companion J Clin Psychiatry. 2001;3(1):17-21.
- DuPont RL, McLellan AT, White WL, et al. Setting the standard for recovery: physicians’ health programs. J Subst Abuse Treat. 2009;36(2):159-171.
- The twelve steps of Alcoholics Anonymous. Alcoholics Anonymous World Services, Inc. website. Accessed Nov. 19, 2018.
- Rothstein L. Impaired physicians and the ADA. JAMA. 2015;313(22):2219-2220.
- Miles SH. A challenge to licensing boards: the stigma of mental illness. JAMA. 1998;280(10):865.
- Sfikas PM. Disabled physician denied license: Supreme Court to rule on whether doctor may sue under AwDA. J Am Dent Assoc. 2003;134(3):370-371.
- New York State Department of Heath Office of Professional Conduct, determination and order in the matter of Michael Jeffrey Hason, MD. New York State Department of Heath website. Accessed Nov. 19, 2018.
- Fiala SJ. A piece of my mind. Normal is a place I visit. JAMA. 2004;291(24):2924-2926.
- State of Washington Department of Health statement of allegations against Suzanne J. Fiala, MD. Accessed Nov. 19, 2018.
- State of Washington Department of Heath stipulation to informal disposition of case against Suzanne J. Fiala, MD. Washington State Department of Health website. Accessed Nov. 19, 2018.