American Journal of Law & Medicine

Drug testing of health care workers: toward a coherent hospital policy.

I. INTRODUCTION

Spurred by President Ronald Reagan's 1986 Executive Order seeking to

establish a drug-free workplace and by the growing empirical data purporting to

show a loss of time, money and productivity due to the adverse effects of

substance abuse,(1) employers in both the public and private sector have

implemented drug testing programs on an unprecedented scale. Today, employers

subject an estimated thirty million workers to some type of employer-sponsored

drug and alcohol testing in the workplace.(2) A 1996 survey by the American

Management Association(3) reports that eighty-one percent of all major

corporations now employ some type of drug testing program, a fourfold increase

in nine years.(4)

While drug testing in the health care sector is rising, it still lags behind

other industries.(5) When a hospital does test, it often exempts a crucial job

classification -- physicians. This Article's thesis centers on the potential

liability hospitals face by failing to include drug testing in its hiring and

credentialing process. The safety-sensitive nature of hospital services,

compounded by drug testing's prevalence outside the health care industry, may

heighten hospitals' exposure to negligent hire and retention claims when

screening of medical staff and employees fails to include preemployment and

reasonable suspicion drug testing. Moreover, fair and sensible labor management

considerations call for a testing policy that encompasses all job

classifications, including the independent and hospital-based physicians who

comprise a hospital's medical staff.

This Article begins with a summary of the common methodologies used in most

drug testing schemes. The focus then shifts in Parts III and IV to some of the

features unique to a hospital or patient care facility -- most notably, the

sensitive and compelling nature of patient care. Because the consequences of

delivering substandard care to a patient as a result of a drug or alcohol

impairment can be devastating, the hospital may be particularly vulnerable in

its credentialing, hiring and retention of any employee or medical staff member

whose job responsibilities require direct or indirect patient contact.(6) The

fact that many physicians are private practitioners and independent

contractors, rather than employees, does not necessarily relieve the hospital

of its responsibility to oversee the quality of patient care. Rather, the

enhanced complexity in delivery of health care services has given rise to the

doctrine of corporate hospital liability, wherein responsibility to render

competent clinical care to the patient is apportioned between the private

physician and the hospital administration.(7)

Part V contains a discussion of the privacy implications provoked by

urinalysis testing, followed in Parts VI and VII by an examination of the legal

challenges raised by public and private employer initiated drug testing. As a

government entity, a public sector employer is subject to constitutional

constraints not applicable to the private sector employer.(8) A

government-mandated drug testing program establishes its constitutionality by

weighing the competing interests of an individual's Fourth Amendment right to

be free from unreasonable searches against an employer's interest in promoting

a safe and productive workplace.(9) Generally, the government's concerns will

prevail if a job is deemed safety sensitive and the employer can demonstrate

"special needs" for conducting the testing.(10) "Safety sensitive" is a broadly

defined concept, extending well beyond the operating engineer in a nuclear

power reactor to include any number of positions in which on-the-job impairment

can jeopardize the safety and welfare of the employee, fellow co-workers or the

public.(11)

In the private sector, the main tool in challenging an employer's drug

testing program has been the common law tort for invasion of privacy. Although

private employers enjoy more latitude than those in the public sector, the

courts have generally found that an employer must establish a reasonable basis

for testing absent safety concerns or individualized suspicion.

Parts VIII and IX of this Article briefly address, respectively, some of the

federal statutory constraints imposed by the Americans with Disabilities Act

and the Family and Medical Leave Act, as well as some of the labor law and

arbitration issues raised by drug testing in a unionized workplace.

This Article concludes with model guidelines consistent with judicially

prescribed limitations on public and private sector drug testing and with sound

labor management policy. These guidelines attempt to reconcile and accommodate

the hospital's interest in ensuring public and workplace safety with the

physician's or employee's interest in minimizing the impact of drug testing on

individual privacy and dignity.

II. DRUG TESTING STRATEGIES

Drug testing entails the collection and analysis of an individual's urine

sample for the presence of the most commonly abused classes of drugs:

marijuana, cocaine, barbiturates and amphetamines.(12) One of the first issues

a hospital must evaluate in developing a drug testing policy is determining the

type(s) of testing to include in a substance abuse program. Workplace testing

can include one or more of the following testing methodologies: (1)

preemployment; (2) suspicion-based; (3) post-accident; (4) random; (5)

periodic; and (6) pursuant to a return-to-work agreement following treatment

and rehabilitation for drug or alcohol abuse.

A. Preemployment Testing

The most common and least controversial form of testing is preemployment

testing. According to a recent survey by the American Management Association,

the percentage of respondents who drug test new hires has climbed to

seventy-seven percent.(13) Legal challenges to applicant testing are fewer and

less successful than those raised by other forms of testing, primarily because

courts determined that a job applicant does not have the same recognized

interest in the job as an incumbent employee.(14) If a job applicant refuses to

submit to a drug test, the applicant is free to walk away and seek employment

elsewhere(15) while an employee declining to take a drug test loses his or her

existing job. Because an applicant is without a cognizable interest in the job,

no violation of a constitutional or statutory right exists.(16)

Courts consider a job applicant's expectation of privacy also "diminished"

when an employer administers the drug test in connection with a routine

preemployment physical, because urinalysis is frequently incorporated into such

an examination.(17) This diminished expectation of privacy may also contribute

to public acceptance of preemployment testing, because many Americans today

have come to expect, and, in many instances, support the concept of submitting

their urine for drug analysis as a condition precedent to securing a job.(18)

Preemployment drug testing has, for better or worse, become a workplace norm.

B. Suspicion-Based Testing

Suspicion-based testing refers to testing prompted by a reasonable belief

that an employee is drug or alcohol impaired while at work.(19) Second in

popularity to preemployment testing, nearly three-quarters of those employers

who drug test use suspicion-based testing.(20) It has also proven more legally

defensible than random or periodic testing.(21) Like preemployment testing,

suspicion-based testing enjoys broad public support.(22) The danger of this

form of testing lies in its potential for prejudicial enforcement when the

discretionary authority to test is left unchecked and in the hands of one

supervisor.(23) To protect against this danger, employers who engage in

suspicion-based testing should draft clearly defined criteria for evaluating

"reasonable suspicion," and require the corroboration of at least a second

supervisor before reaching a determination to test.(24)

The reasonable suspicion standard is both quantitatively and qualitatively

less demanding than that of probable cause,(25) "but requires some quantum of

individualized suspicion as opposed to an inarticulate hunch."(26) There must

be articulable grounds for directing the test -- objective facts that would

lead a reasonable person to conclude that the individual is using drugs or is

impaired by drug use.(27) Firsthand observation of actual use or possession of

illegal substances, or observation of unusual or erratic behavior, may

establish reasonable suspicion.(28) Information from reliable secondary sources

may also verify reasonable suspicion.(29)

C. Post-Accident Testing

Post-accident testing is similar to suspicion-based testing, and is usually

triggered when the employee has been involved in a workplace accident that

resulted in death, injury or property damage.(30) It is increasing in almost

direct proportion to newly enacted state legislation that bars workers'

compensation benefits for employees who test positive for drugs after a

workplace accident that resulted in substantial injury.(31) Because a blood

test yields a more accurate picture of recent drug or alcohol ingestion,

employers often prefer blood tests over urinalysis in a post-accident

setting.(32) Some states require more than one such accident to trigger a drug

test, particularly where employers are required to demonstrate a reasonable

suspicion of on-the-job impairment before testing an employee.(33)

D. Random Testing

Of all the testing options, random testing generates the most controversy.

Pursuant to this policy, employers target individuals by a statistically random

procedure, absent any individualized suspicion that the target is using drugs

or alcohol while on the job. In the public domain, courts have sustained random

drug testing in cases where a government worker occupies a safety-sensitive or

high-risk position.(34) In

the private sector, random testing is growing,(35) particularly where employees

are engaged in public safety responsibilities or are tested pursuant to a

federal drug testing statute mandating random testing.(36) Nevertheless, some

states prohibit random testing while others restrict it to employees who

perform safety-sensitive work.(37)

Although considered by some observers to be the most effective deterrent

against employee drug use, random testing evokes the most serious ethical

concerns.(38) Subjecting an employee to urinalysis without any individualized

suspicion of drug or alcohol impairment may exceed legitimate limits on an

employer's right to exert control over employee behavior. Combined with

infringement of employees' rights, the low morale often engendered by random

testing undoubtedly contributes to the fact that such testing is the focus of

most drug testing litigation. Ironically, because the selection process is an

objective one, random testing has some advantage over reasonable suspicion

testing. The neutral selection and testing of employees reduces the potential

for discriminatory enforcement and the stigma attached to testing.(39)

E. Periodic Testing

Less controversial than random testing, periodic testing occurs at announced

intervals, most often in conjunction with an employee's regularly scheduled

physical examination.(40) Periodic testing elicits fewer employee challenges

than random or suspicion-based testing, because the proffering of a urine

sample is typically part of a routine physical exam.(41) Courts generally

uphold urinalysis under these circumstances on the ground that the individual

experiences no additional physical intrusion.(42) The intrusion caused by a

drug test performed in conjunction with a routine medical examination may also

have less emotional impact on the employee because this form of testing

excludes the element of surprise and is generally conducted across the

personnel board.(43)

F. Post-Rehabilitation Testing

In the last type of testing, post-rehabilitation testing, employers identify

and refer employees to counseling and treatment for substance abuse or

dependency.(44) Conducted to ensure compliance with employee and workplace

welfare rules, employers often incorporate post-rehabilitation testing into a

return-to-work agreement.(45) As a condition of continued employment, the

employee consents to undergo periodic, unannounced drug testing for a specified

period of time, usually ranging from one to five years, following the

employee's return to work.(46)

III. DRUG TESTING IN THE HEALTH CARE INDUSTRY

A. Reasons to Test

There is no consensus regarding the pervasiveness of illicit drug use among

health care workers. Features unique to the health care sector, including

access to controlled substances and the high degree of stress associated with

many health care jobs,(47) lead some to believe that the substance abuse rate

among health care workers is higher than that of the general population.(48)

Moreover, the moral and fiduciary obligations attendant to many health care

jobs are not present to the same degree in most other professions. Charged with

the responsibility of safeguarding the lives of their patients, the human toll

resulting from negligent care delivered by a drug or alcohol impaired employee

can be intolerably high. The AMA's Office of General Counsel implicitly

recognizes these critical stakes in regard to mandatory alcohol and drug

testing for physicians:

[W]hen physicians or other individuals who are employed to protect

the health and safety of the public abuse drugs, the consequences are

potentially life threatening ....

....

While there are no good data on the extent to which drug abuse by

physicians results in substandard patient care, even a small risk cannot

be tolerated. The harm to a patient from an impaired physician can be

life threatening.(49)

Two widely accepted premises in connection with drug testing in the health

care sector include: (1) employees providing direct patient care are engaged in

safety-sensitive work;(50) and (2) the duty of care and responsibility owed to

the patient will inevitably outweigh the privacy interests of the health care

worker where the responsibilities performed by the health care worker directly

intersects with the patient's welfare.(51) Both of these premises are present

in American Federation of Government Employees, Local 2110 v. Derwinski.(52) In

a challenge to the Veterans Administration's Drug Free Workplace Plan that

included random drug testing of certain designated "safety-sensitive" medical

positions, including those of a pharmacist, physician, nurse and two medical

technicians, a federal district court concluded that "[t]he gravity of the

responsibilities of such medical professionals is at least as great as that of

the locomotive engineers, flight attendants, and pipeline workers, and the

risks associated with drug-impaired performance equally catastrophic."(53)

Given the "paramount consideration of safety" that must be granted to members

of the public who use the Veterans Administration hospitals, and in light of

the court's assessment that all medical positions at issue involved duties

"fraught with such risk of injury to others that even a momentary lapse of

attention can have disastrous consequences," the court deemed that the

government's compelling interest in randomly testing superseded the workers'

individual privacy interests.(54) This conclusion is further supported by the

observation that the employees' privacy interests were diminished by virtue of

their employment as licensed members of the health profession because they

voluntarily subjected themselves to "qualifications, examination and

regulation."(55)

In addition to arguing for the constitutionality of testing health care

workers, testing proponents assert that when employers stringently adhere to

the principles of confidentiality and due process, and when the aim is

therapeutic rather than punitive, the benefits of a drug and alcohol screening

program outweigh the privacy incursions.(56) To the extent that a testing

program may identify employees and physicians with a drug abuse problem,(57) it

may serve to hasten the treatment and recovery process, while concomitantly

improving the quality of patient care and enhancing a hospital's public

accountability.(58) Finally, as discussed in greater detail in the following

section, instituting a drug and alcohol testing policy may reduce hospital

liability when the result of negligent care administered by a drug- or

alcohol-impaired health care provider harms a patient.(59)

B. Reasons Not to Test

Opponents of testing health care providers echo the arguments advanced by

critics at large: (1) imperfection of technology and its yield of false

results; (2) intrusion on personal privacy; and (3) lack of precision or

limitation on potential inferences drawn from a positive urinalysis.(60) A

positive urinalysis does not provide the tester with any information regarding

the frequency, quantity or pattern of drag use;(61) the impact, if any, that

the drug has on job performance or mental and physical abilities or whether the

tested employee has a drug dependency or abuse problem.(62) Additionally, a

mandatory program may erode trust and damage morale, particularly if it calls

for random testing or the collection methodology requires direct observation.

The consequences of a positive drug test on a physician's or employee's

reputation and career can likewise be devastating, particularly if the

program's objective is punitive rather than rehabilitative, and/or is lacking

necessary confidentiality safeguards.

Opponents of drug testing also point out that mechanisms are already in place

to identify and treat drug or alcohol impaired health care providers. Currently

all fifty states have established programs to treat physicians with drug and

alcohol problems.(63) Also, most states have empowered the state licensing

board or medical society with discretionary authority to investigate and

rehabilitate (rather than discipline) suspected cases of physical

impairment.(64) Guaranteeing anonymity and confidentiality for the good faith

reporter, most states have enacted laws to identify and discipline impaired

physicians, including mandatory reporting of physician impairment by

colleagues, hospitals and medical societies.(65)

Many commentators have observed that mandatory reporting requirements fail

to overcome the "conspiracy of silence" or general reluctance on the part of

medical professionals to "turn in" a colleague, particularly in light of the

difficulty of identifying, with any degree of certainty, a drug- or

alcohol-impaired person.(66) Therefore, the efficacy of these reporting

statutes remains questionable. The statutes are not particularly popular among

medical professionals, and enforcement is generally negligible, with only a few

states imposing sanctions for noncompliance, usually in the form of a monetary

penalty.(67)

Opponents of urinalysis drug testing, within and without the health care

field, also endorse utilization of less invasive procedures to measure worker

impairment, most notably neurobehavioral examination, such as physiological or

psychomotor performance tests. These computerized tests measure eye-hand

coordination and quick reaction times, and can be administered in a matter of

minutes.(68) Moreover, proponents contend, performance tests, which do not

trespass on an individual's privacy, can assess not only impairment resulting

from ingestion of drugs or alcohol but also impairment caused by sleep

deprivation, mental illness or physical disability.(69)

C. American Hospital Association's Drug Testing Advisory

Beginning with its prefatory declaration,(70) in 1992 the American Hospital

Association (AHA) issued a management advisory urging its members to initiate a

comprehensive drug testing program for all hospital personnel, including

employees, physicians, volunteers and trustees.(71) Prompting the

recommendation were familiar concerns: employee absenteeism, loss of

productivity and workplace accidents -- all allegedly attributable to illegal

substance abuse.(72) The AHA advisory calls for pre-employment, for-cause and

post-accident testing.(73) Hospitals should reserve random testing for

return-to-work agreements following treatment and rehabilitation for substance

abuse.(74) The scope of testing should also include commonly abused

prescription drugs as well as alcohol and illegal drugs.(75)

The AHA further advised that hospitals should conduct the testing of

applicants and employees without regard to job description. With respect to

physicians, the AHA counseled hospitals to test all medical staff members,

"regardless of the type or nature of the member's privileges."(76) Members

should be tested when first applying for privileges, but subject only to

for-cause testing thereafter.(77) If a staff member tests positive, hospitals

should condition continued membership and privileges on a return-to-work

agreement.(78)

The advisory further recommends that hospitals structure drug and alcohol

testing policies on sound therapeutic/rehabilitative standards.(79) No policy

should limit itself to testing.(80) It should also incorporate an educational

program on substance abuse and treatment, and develop an employee assistance

program to which employees can turn for referral, evaluation and treatment.(81)

D. American Medical Association's Drug Testing Policy

The American Medical Association (AMA) takes the position that drug and

alcohol testing of employees in any industry may be appropriate in the following

circumstances: (1) preemployment for health or safety-sensitive positions; (2)

reasonable suspicion that performance is impaired by drugs or alcohol; and (3)

follow-up testing to monitor rehabilitation.(82) The AMA further states that

urine drag and alcohol testing may be appropriate in comparable circumstances

for physicians and other health care employees.(83) Like the AHA, the AMA

opposes random testing.(84) In support of testing programs within the above

parameters, the AMA states:

In keeping with the highest traditions of the profession, physicians

have voluntarily accepted behavioral and ethical standards at least as

stringent as those imposed on workers in other occupations. When the

issue is encouragement of healthy behavior, designed to counter an illness

(drug addiction) considered to be a scourge of modem society,

only the most demanding standard would seem acceptable.(85)

In addressing physician attitudes toward drug testing, the AMA cites a survey

published in the Archives of Internal Medicine indicating that of 272 doctors

surveyed in one Michigan county, 45% agreed with mandatory urinalysis drug

testing of physicians who hold hospital privileges; 34% disagreed; and 21%

remained uncertain.(86) The survey also revealed that, in the event a hospital

implements a testing program, respondents clearly preferred that the medical

staff conduct the testing without the participation of the hospital

administration.(87)

The AMA takes these survey results a step farther by urging the medical

staff's full involvement in die formulation and development of any drug and

alcohol testing program, including:

(a) selection of analytical methods to ensure scientific validity of the

test results, (b) determination of measures to maintain confidentiality of

the test results, (c) in for-cause post-incident/injury testing, definition

of standards for determining whether cause exists and which incidents

and/or injuries will result in testing, and (d) development of

mechanisms to address the physical and mental health of medical staff

members.(88)

Finally, the AMA cautions against implementation of any drug and alcohol testing

plan without first securing the necessary procedural and substantive due process

guarantees, and advocates the establishment at all times of the "primacy of

medical staff authority in substance abuse policy and procedures."(89)

IV. DRUG TESTING AND CORPORATE HOSPITAL LIABILITY

A. Hospital Accountability for the Delivery of Negligent Patient Care

1. Corporate Hospital Liability and the Independent Physician

In addition to enhancing workplace safety for both patient and health care

providers, drug testing may also represent good risk management. The expansion

in negligent hire and retention claims increases pressure on a hospital to

implement stringent screening and monitoring procedures to help ensure the

competency of all health care providers whose job responsibilities involve

patient care. The doctrine of negligent hire or negligent retention imposes

direct employer liability to third parties for negligently hiring or retaining

incompetent, unsuitable or unfit employees in positions that pose an

unreasonable risk of harm to others.(90) A hospital's liability for negligence

in the hire or retention of an employee may also extend to physicians,

notwithstanding the fact that many physicians are not salaried hospital

employees, but independent contractors practicing autonomously, usually in a

private, office-based setting.(91) Over the years, the doctrine of corporate

hospital liability has undermined the assumption that hospitals had no control

over independent physicians and, therefore, could not be held legally

accountable for their malfeasance.(92)

Historically, courts have been highly reluctant to place any legal

responsibility on a hospital for harm suffered by a patient at the hands of a

negligent physician.(93) This reluctance was premised, in great part, on a

perception of the hospital as merely an institution undertaking only to

"furnish room, food, facilities for operation, and attendance."(94) But present

day hospital operations are more complex, necessitating hospital administrators

to play a much more active role in the provision of medical care.(95) Hospitals

now routinely employ a large staff of personnel to provide patient care,

including physicians, residents, nurses, technicians, as well as administrative

and manual workers. Moreover, patients today have a reasonable expectation that

the hospital is in charge of, and assumes overall responsibility for, the care

they receive.(96)

In view of this functional and operational shift, courts have become

unwilling to shield hospitals from tort liability where a patient has received

substandard care from a physician who, while not under the hospital's direct

control, agency or employ, has nevertheless been accorded privileges to treat

patients at the facility, in conformity with hospital rules and

regulations.(97) Consequently, under the doctrine of corporate hospital

liability (also referred to as corporate hospital negligence), a hospital may

be liable for negligent care rendered by physicians, even where no direct

employment or agency relationship exists.(98)

Corporate liability focuses on a breach of duty owed directly to a third

party. This translates in a corporate hospital setting to a hospital bearing

direct responsibility to its patients for the quality of medical care delivered

by members of its medical staff.(99) This duty obligates a hospital to exercise

reasonable care both to "(1) insure that its medical staff is qualified for the

privileges granted and/or (2) to evaluate the care provided."(100) A number of

jurisdictions now adhere to the theory of corporate liability.(101)

2. Corporate Hospital Liability and the Duty to Exercise Reasonable Care

in the Selection and Retention of Medical Staff Members

Like the tort of negligence, corporate liability is predicated on the

existence of a duty, a breach of that duty and causation.(102) A hospital's

duty to safeguard the quality of medical care delivered at its facility stems

from the "special relationship" between a hospital and its patients. "Special

relationships" exist generally where concerns of public health or safety are

implicated; e.g., landlord and tenant, public carrier and passenger, and police

officer and citizen.(103) By virtue of this special relationship, a hospital

implicitly promises to hire and retain only competent and reliable employees

and medical staff.(104) State statutes that regulate hospital licensing and the

Joint Commission on Accreditation of Healthcare Organizations' (JCAHO)

accreditation requirements also infer the duty to oversee delivery of medical

services.(105)

In the vernacular of negligence law, the existence of a duty is sometimes

defined by the foreseeability of risk.(106) A duty to a third party attaches if

it is foreseeable that an act, or failure to act, may cause someone harm.(107)

A corporate hospital's failure to exercise proper care when reviewing the

credentials or background of applicants could foreseeably result in the

appointment of unqualified physicians, thereby creating an unreasonable risk of

harm to the patient. Thus, hospitals owe to their patients a duty to exercise

reasonable care in the selection and retention of employees.(108) Moreover, the

overall responsibility to ensure the competency of its medical staff is

nondelegable.(109)

3. The Required Causal Link Between the Hospital's Breach of Duty and the

Resultant Injury

Although hospitals have a duty to exercise reasonable care in the selection

and retention of medical staff and employees, a breach of that duty is not

sufficient to impose corporate liability under a theory of negligent hire or

retention.(110) The plaintiff must also show that the hospital's negligent

credentialing or retention of a staff physician was the proximate cause of the

resulting patient injury.(111) Hospitals have sought to avoid liability by

arguing that physician malfeasance is an intervening event and the proximate

cause of a patient-plaintiff's injury.(112) But most jurisdictions that adopted

corporate hospital liability crafted a more flexible approach to the proximate

cause requirement. Some require a plaintiff to show that hospital negligence in

the hire or retention of a staff physician was a contributing or substantial

factor in the plaintiff s injury. For example, in Purcell v. Zimbelman, the

Arizona Court of Appeals affirmed hospital liability for its surgery

department's failure to supervise properly a private surgeon and to alert the

governing board to a possible problem.(113) The court concluded that the

plaintiff must introduce evidence "which affords a reasonable basis for the

conclusion that it is more likely than not that the conduct of the defendant

was a substantial factor in bringing about the result."(114)

Other jurisdictions analyze proximate cause in terms of the foreseeability

of the harm,(115) a concept that is intertwined with the establishment of the

duty to exercise reasonable care in the first instance.(116) Predicating

proximate cause on foreseeability of harm is consistent with the analysis most

often employed in the general tort of negligent hiring, which asks whether the

plaintiff's injury was the "natural, probable, and foreseeable result of the

employer's negligence. …

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