Physicians disagree about mandatory blood-alcohol reporting measures

Fourteen states have passed laws which state that in the course of getting blood alcohol for clinical reasons, physicians can report the findings to law enforcement. Hawaii recently became the first state to mandate reporting of blood alcohol.

Reporting of blood alcohol, whether mandatory or optional, is a controversial issue among emergency physicians. "I don’t think physicians should be in the business of reporting drunk drivers," argues Carl A. Soderstrom, MD, FACEP, at R Adams Cowley Shock Trauma Center in Baltimore. "It looks like a motherhood and apple pie issue, but I really think it is the wrong way to solve a bad problem."

Several issues need to be ironed out before other states adopt similar legislation, Soderstrom says. "How did it impact on taking care of patients, which is their primary mission? Also, how much time did physicians end up in court and how many convictions did they get? If they went to court 10 times and got one conviction, you’d have to ask if that was an effective use of time."

More research is needed, he insists. "It’s a law with some real possibilities of a downside, so we should put it on hold for a couple years and do surveys of significant sized EDs who have been doing it, and find out if the potential problems really bore out," says Soderstrom.

Although ACEP has voted on the issue, the organization hasn’t adopted a formal policy. "Some physicians feel very strongly that doctors shouldn’t be cops and it violates a patient’s confidentiality for us to report them," says Larry Bedard, MD, FACEP, current president of ACEP.

Optional laws for reporting stimulate further controversy. Permissive laws that give physicians the right to choose which patients they will report are particularly dangerous, argues Bedard. "I think those laws will be haphazardly and discriminatorily enforced," he says. "Some physicians won’t report you because they think it violates medical ethics, while somebody else who is a real advocate will report it."

ED physicians point out that there is a bias issue when reporting is optional. "Physicians might pick on patients with motorcycles and tattoos, and not go after the blond haired, blue-eyed ladies with two children who come in drunk," says Soderstrom.

The issue of bias invites discrimination, argues Bedard. "If a member of your medical staff comes in after the Christmas party with a little too much to drink, I doubt you’ll report them, but if it’s somebody that doesn’t look like you, a minority that’s giving you a hard time, you may stick it to them by drawing blood without permission and reporting them," says Bedard.

Some physicians feel law enforcement should be left to police. "All they’ve done in Hawaii is made themselves deputy police officers, and I think the police would be happy to let them do their work for them," says Bedard.

Patients may be reluctant to seek care, he suggests. "I think you’re going to have patients who will be afraid you’ll do a blood alcohol without their knowledge, and if they’ve been arrested before and afraid of going to jail or losing license, even if they’re a diabetic, will likely refuse all blood tests."

Doctors aren’t police

Even if physicians report the patient, the police may be too busy to come in and do a legal blood alcohol test, a scenario which opens up potential legal risks, says Bedard. "If they don’t come in and three months later that patient gets into an auto accident, I think that physician is going to be liable, because somebody is going to say, ‘Gee, doc, you didn’t make a sincere enough attempt to get the police, and if only he’d been arrested, my husband would still be alive," he argues.

The issue raises larger ethical issues, he says. "If I report alcohol, why shouldn’t I report a heroin addict who is probably stealing car stereos to support their habit or a cocaine user? Where do you draw the line where doctors should be cops?" asks Bedard.

The issue is different from elder or child abuse, which ED physicians are required by law to report. "You’re doing something to protect patients who can’t protect themselves, in this issue you’re doing policing to perhaps stop them from doing something to somebody else in the future," says Bedard. "If I drug screen and find out somebody’s using Valium, should I report them?"

The physician’s role is to protect individual patients, he insists. "The foundation of the physician/patient relationship is trust," he says. "I’m there in your best interest, I’m not there as an agent of the state to do a blood test on you without your awareness and report you to the police."

Prevention, not punishment

Other ED physicians insist the legislation protects patients. "My concern about DUI comes from 25 years of working in Hawaii EDs, seeing friend and acquaintances killed in alcohol-related crashes," explains Fred C. Holschuh, MD, an emergency physician at Hilo Medical Center in Hilo, Hawaii and cofounder of Hawaii Emergency Physicians Associated, who lobbied for the bill.

ED physicians don’t see the aftermath of the intoxicated patients they care for, Holschuh stresses. "For some patients, it may be their seventh or eighth crash, and their license was removed five crashes ago, and they’re still drinking and driving." If a patient went to an ED after a drunken-driving incident, their chances for getting arrested for DUI were slim, he adds.

Before the law, ED physicians could lose their licenses and be sued civilly for turning over results to police. "Our state mandates reporting of dogbites, but the next day I can have a guy with a blood level four times the legal level, and I couldn’t call the police," he says.

Often, police at the scene have never gotten close enough to an injured person to determine if they’re intoxicated. "It may be six hours before can even get close to this person. so the only evidence is our medical blood alcohol," Holschuh explains. Some repeat DUI offenders are savvy enough to know to feign injury to avoid detection, he says.

All the blood alcohol levels of everyone involved in a vehicle crash are now turned over to police. "The officer then initiates the legal level, which goes to court as quickly as possible." he says.

The goal is twofold, he says. "We are helping to get impaired drivers off the road, and helping to get people with severe addictive disease into treatment programs," he says. In the year before the bill was passed, there were 38 legal blood alcohols done in the city of Honolulu. Since the law was passed, there were 37 in one month.

Physicians in Hawaii insist no extra time is spent. "We are drawing the blood alcohol level for medical reasons anyway, so the only extra step is notification of the police, who are standing right there most of the time," he says. "This would never, ever interfere with patient care--it’s going to save lives."

Update: Prudent Layperson for Medicare/Medicaid Patients

Emergency medicine leaders are applauding Congress’ inclusion of the "prudent layperson" definition of an emergency in the Budget Reconciliation Bill for Medicare/Medicaid patients enrolled in HMOs. "This really is a historical agreement," says Larry Bedard, MD, FACEP, current president of ACEP.

"Ever since the College was founded and ever since emergency physicians have been practicing, we have realized that the patient really determines the emergency and we must see it from their perspective," says Bedard. Although long overdue, the legislation is a tremendous victory for both emergency physicians and patients, he adds.

The legislation is in stark contrast to just two years ago, says John Scott, director of public affairs for ACEP’s Washington, DC office. "Prior to the original Cardin bill, health plans were quite vigorous and vocal in opposition to the prudent layperson standard," he says. "Now that battle is over, and the only remaining question is whether these protections will be extended to cover all health plans in the country."

The Access to Emergency Medical Services Act, which will give commercially insured patients the same protections, is expected to pass in the near future. "About a third of patients are now covered, and we need to extend it to the other two thirds," says Bedard.

Aetna US Health Care announced they would voluntarily recognize the prudent layperson definition, becoming the second major health plan to do so. "It sounds great, but we’re also concerned this may also be a political strategy," says Bedard. "They’ll argue that they are willing to do it voluntarily, so we don’t need legislation. If health plans really want to put patients first, they should voluntarily adopt the standard and also come on board to endorse the Cardin bill." So far, Kaiser Permanente is the only health plan to do so.

Aetna’s decision wasn’t received with open arms by ACEP, says Scott. "I consider it to be a deathbed conversion," he explains. "Until two weeks ago, they were lobbying hard against severe pain, so I believe it’s a tactical move on their part to head off standards in this area applying to other plans."

The prudent layperson definition adopted for Medicare/Medicaid patients includes "severe pain" language which the American Association of Health Plans had vigorously opposed. When further legislation is passed, it will likely include "severe pain" as well. "Since Congress voted by an overwhelming majority to include it for Medicare and Medicaid patients, I would be amazed if they didn’t apply the same standard for commercially insured patients," says Bedard.

The Access to Emergency Medical Services Act is expected to be passed sometime next year. ""We’d like be pleasantly surprised and get it done this year, but realistically we think Congress will vote on it next year," Bedard predicts. The bill currently has 167 cosponsors in the House, with strong bipartisan support, he adds. In addition to the prudent layperson definition of an emergency, the Access to Emergency Medical Services Act mandates health plans to respond within 30 minutes for post stabilization care, and stipulates that anyone can approve coverage, but only a physician can deny it.

To drum up support for the Access to Emergency Medical Services Act, ACEP arranged for 30 congressmen to visit EDs in the month of August. "Also, if someone signs on to the bill, we invite them to the local ED to publicly thank them for their support," says Bedard. "It’s important for them to know that emergency physicians are very committed to this, and that the issue has been well received by the public."