Many nursing board prosecutions start from on-the-job claims of co-workers  smelling alcohol on a licensee’s breath while working or a nursing administrator thinking a licensee has slurred speech and seemed “scattered”.   Lets go get a drug and alcohol test.

Pennsylvania’s medical related licensing board investigates this type of allegation under 63 P.S. §§63 P.S. §§2205(b)(4) and (b)(5) for being unable to practice professional nursing with reasonable skill and safety by reason of mental or physical illness or condition or dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination.  In western Pennsylvania the Board sends individuals for the mental and physical examination to Robert Wettstein, M.D.  The purpose of Dr. Wettstein’s evaluation is conduct a psychiatric examination of the licensee to determine, if under the the DSM-V the licensee meets any one of, or a multiple of the eleven (11) criteria relevant to the diagnosis of an Alcohol or Drug Use Disorder.

Importantly the PHP, SARPH, and the PHP sucker, trap, scare medical professional licensees into the PHMP/PHP/PNAP programs after they are subjected to, and reveal, a positive Urine Ethyl Glucuronide test (“EtG”) which is not one of the eleven (11) criteria relevant to a diagnosis of an Alcohol Use Disorder set forth within the DSM-V.

In a recent case, the following facts were present: a negative drug screen on the day of the instance, not being terminated and no other work place discipline or termination from nursing employment, and a prior DUI ARD following a DUI arrest.  The licensee stated to Dr. Wettstein that she typically drank one or two bottles of draft beer or a mixed drink once or twice a week at a club, usually with her boyfriend.  The good doctor determined she was an alcoholic and concluded she could not practice safely with out going into the PHMP.

Wettstein diagnosed the licensee with an Alcohol Use Disorder based upon her EtG test results with the following Alcohol Use Disorder symptoms: 1) Respondent consumes more alcohol than intended as demonstrated through her purported ” blackout”/”brownout”; 2) Respondent has lost control of her alcohol use over time; 3) Respondent likely self-medicated with alcohol to address the emotional distress she experienced from the death of her brother; 4) Respondent is not attentive to her alcohol use or her alcohol experience as demonstrated by her 2010 DUI arrest and statement to him that she was not intoxicated at the time of her arrest; and 5) Respondent denied having an Alcohol Use Disorder or needing treatment for such a Disorder.

This licensee fought the case and won. Importantly, the licensee’s EtG test was positive and at 40-times the normal limit, but her Carbohydrate Deficient Transferrin (“CDT”) test was negative for heavy alcohol use.  The CDT test is a valid diagnostic test which tests for biomarkers indicative of heavy alcohol use.   This is a huge inconsistency in objective test results.

Importantly, the hearing officer thoroughly reviewed the factual record and concluded: “the record shows as a threshold matter that Dr. Wettstein failed to identify the diagnostic criteria for an Alcohol Use Disorder under the DSM-V in either his written report or through his hearing testimony. Nor did Dr. Wettstein identify the specific DSM-V criteria Respondent purportedly satisfies. In the absence of such critical information , any finding that Respondent has an Alcohol Use Disorder would necessarily be predicated exclusively upon Dr. Wettstein’ s opinion alone that Respondent has an Alcohol Use Disorder based upon the undisclosed DSM-V diagnostic criteria.”

An easy simple interpretation of this legal/medical conclusion is Dr. Wettstein made up his conclusion and did not rely upon any proper medical evidence to determine the licensee was impaired and unable to safely practice her profession.

The hearing officer relied upon an appellate case I handled and won.  In that case, Dr. Voskanian did the same thing — made up his opinion.  There, the court stated: Absent expert testimony establishing the diagnostic criteria for an Alcohol Use Disorder, the particular criteria a licensee purportedly satisfies, and how the licensee satisfies those criteria, the record fails to contain substantial evidence to support Dr. Voskanian’s diagnosis of an Alcohol Use Disorder but, instead, requires  the Board to merely accept his diagnosis at face value. See, e.g., Thim v. Bureau of Professional and Occupational Affairs, 1019 WL 3315143 at *8-9 (Pa. Cmwlth. July 24, 2019).  This, the court would not allow the Board to do.

The appellate court and the hearing examiners are starting to push back on Board experts’ baseless, made up, medical legal conclusions.  Call me to discuss your case.