By: Jonathan J. Wade

Medical Malpractice Practice Area

Doctors are no different from any other group in our society. They can and do develop drug and/or alcohol addictions and dependencies. In the context of medical malpractice cases, evidence that the doctor was impaired, i.e., his or her ability to practice medicine was affected from his or her use of drugs or alcohol, is relevant and admissible. On March 6, 2000, the Supreme Court of Georgia decided Albany Urology Clinic, P.C. v. Cleveland, Case No. S99G0600.

In Albany Urology, a physician admitted to being actively addicted to cocaine during the time he was treating his patient. The Supreme Court held that the physician's use of drugs was not a material fact which the patient had a right to know about, unless the patient asked. The Supreme Court further held that the non-disclosure or concealment of this information did not support a cause of action for fraud or for battery.

However, the Supreme Court reiterated that "any evidence relevant to the plaintiff's claim that the physician rendered deficient professional services, including evidence that the physician used illegal drugs at the time such services were rendered that might have impacted upon the physician's performance, was admissible to support the malpractice claim."

Given the Court's "unless asked" rule, it is strongly suggested that prior to consenting to any physician's treatment of a patient, the patient should ask questions. Included within those questions might well be an inquiry of whether the physician "had anything going on in his or her life" that might affect his or ability to provide sound medical judgments and treatment. Further, if your physician should sound, look, or act like he or she might be under the influence of something, inquire, investigate, and either go elsewhere or insist (such as in an emergency room setting) on being seen by a different physician.

In this regard, the case of Composite State Board of Medical Examiners v. Hertell, 163 Ga.App. 665, 295 S.E.2d 223 (1982) is informative. In Hertell, a physician had several beers, a methaqualone tablet and perhaps another prescription drug prior to driving to a hospital to see patients. The physician then reviewed a patient's chart at the hospital. The court had to decide whether the physician had "engaged in any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public, which conduct or practice need not have resulted in actual injury to any person; unprofessional conduct shall also shall also include any departure from, or the failure to conform to, the minimal standards of accepted and prevailing medical practice."

The court noted that the issue was whether the actions the physician took while under the influence of alcohol and drugs constituted making a medical judgment, as that would be prohibited and a per se deviation from the standard of care. The court held that the physician, by going to the hospital, reviewing the patient's chart, determining that the necessary tests had been ordered, noting that the patient was asleep, and deciding that no additional treatment of the patient was necessary, made a medical judgment while under the influence. The court therefore held that the forming of that medical opinion, while the physician was under the influence of alcohol and drugs, was a departure from the minimal standards of acceptable and prevailing medical practice.

In light of Hertell and Cleveland Urology, you should be aware of the existence of impaired physicians, and should immediately insist on other medical care and treatment by another unimpaired physician if you suspect the physician is impaired for any reason. Further, you should report a suspicion that your "office"physician is impaired to the State Composite Board of Medical Examiners. Similarly, ifyou encounter a physician in a hospital setting (such as in the emergency room who you suspect of being under the influence or otherwise impaired,you should insist on another practitioner and should report the suspicion to the hospital administration.

The State Composite Board is the State agency responsible for licensing, disciplining and regulating physicians, nurses, physicians, assistants and similar medical professionals in the State of Georgia. They can be contacted on the internet at www.sos.state.ga.us/ebd-medical/. As of July 1, 1999, the Secretary of State of Georgia?s office relinquished jurisdiction over the Composite State Board of Medical Examiners to the Georgia Community Health. However, at this web site, you can search the Board's limited public data base for information on physicians, physicians assistants, cardiac technicians, paramedics and respiratory care therapists. If there is a public board order, i.e., if the board has issued a decision finding that the physician needed to be sanctioned, or their license to practice revoked, suspended, or placed on probation, this information may be obtained by you.

Similarly, there is a publication available to the general public entitled "Questionable Doctors Disciplined by State and Federal Governments" published by Public Citizen Help Research Group. This organization was founded by Ralph Nader in 1971 and can be contacted at Public Citizen, 1600 20^th Street, N.W., Washington, D.C. 20009. In this text, you can discover information regarding physicians who have been disciplined not only by the State of Georgia, but by all other states depending on the region you select. It is only with access to information such as this that the general public can protect itself against incompetent, impaired, or criminally culpable physicians and other healthcare providers.

Finally, if you find that you have been injured by a healthcare provider, and recall that there was something about him or her that made you suspicious, make sure you retain counsel who is familiar with these issues, knows how to properly investigate and substantiate it, and use it properly for your benefit.

The information for this article was received from independent research on the part of the author. All information is based solely upon the law of the State of Georgia and does not apply to any matter outside of Georgia. This article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The law is constantly changing, additional facts or future developments may affect subjects contained herein and no guarantee is given that the information provided is correct, complete, or up-to-date. Seek the advice of professional counsel before acting or relying upon any article, form or information in this web site.