Last January, the Vermont Board of Medical Practice disciplined Dr. Anne Johnston for illegally prescribing painkillers to feed her own drug habit. According to court records, the Fletcher Allen Health Care physician admitted that between April 2009 and March 2010 she wrote — and filled — prescriptions for nonexistent patients.
But Attorney General Bill Sorrell didn’t bring charges against her. In a press release, he said he made his “close-call decision” in part because Johnston had already referred herself to a substance-abuse treatment program specifically designed for medical professionals. Sorrell also factored in her “specialized skill as a neonatologist — she is one of only five in the state — and her important contribution to the work at the neonatal unit at Fletcher Allen.”
Another mitigating factor, Sorrell added, was a meeting he had with Fletcher Allen staff, “each of whom stressed their strong support for Dr. Johnston.” Ultimately, she was allowed to continue practicing medicine under a “conditioned” license, which prohibits her from prescribing controlled substances.
This wasn’t Johnston’s first offense. In 1998, she was similarly disciplined for illegally obtaining narcotics for personal use. That time, Johnston also avoided criminal prosecution.
Johnston’s story is striking, not just for its sad irony — her medical expertise is in treating opiate-dependent babies born to addicted mothers — but also because it differs markedly from other drug-diversion cases handled by the attorney general’s office in recent years, particularly those involving nurses. Since late 2006, the AG’s office has made a point of issuing press releases whenever it convicts a nurse of diverting or abusing prescription opiates. None received the same leniency as Johnston.
No local nurses were willing to speak on the record for this story. Privately, however, several observe that when members of their profession are accused of diverting drugs, they’re rarely afforded a second, or third, chance. Anecdotally, they report that nurses seem more likely to be fired, have their licenses suspended or revoked, and face criminal prosecution, even for a first offense.
In 2011, Vermont’s Office of Professional Regulation, which licenses nurses, investigated 53 allegations of drug diversion by nurses. Of those, it disciplined 20, and criminally prosecuted 10. Thirty-two allegations of nurse drug diversion were unsubstantiated.
In the same year, the Vermont Board of Medical Practice, which regulates doctors, publicly listed 11 “board actions” against licensed physicians for a variety of alleged offenses, including unprofessional conduct, improper prescribing practices, patient abandonment and nonpayment of state taxes. Of those, only one doctor had his license revoked; another, who’d removed the wrong ovary from a patient, retired from medicine. The rest were either cleared by the board or allowed to continue practicing with conditional licenses. (The board does not reveal how many total investigations it conducted.)
Brooks McArthur, a Burlington attorney, says that at any given time he represents “from five to two dozen” Vermont nurses accused of drug diversion. He says it can take as long as two years to resolve such complaints before the nursing board. During that time, he adds, most nurses are not allowed to continue practicing in a health care setting.
As one longtime Fletcher Allen registered nurse put it, “With nurses, it’s not three strikes and you’re out... I think there’s a monetary component to it. Nurses don’t bring in revenue. Doctors do.”
Says another, “Nurses are a dime a dozen.”
But are drug-abusing nurses actually punished more harshly than drug-abusing physicians — by their employers, their respective licensing boards and the criminal justice system?
“It’s a fair question, but it’s also tough to measure,” says Cindy Maguire, criminal division chief in the attorney general’s office. According to Maguire, there are legitimate reasons why it may seem that more nurses than doctors get caught — and when they do, why they seem to face stiffer penalties.
To begin with, there are many more nurses than doctors in Vermont — about 16,800 RNs, 500 advanced-practice RNs, 2400 licensed practical nurses and 4700 licensed nursing assistants, compared to only 2000 regularly practicing physicians.
Another critical component in evaluating the criminal potential of a case, Maguire continues, is whether a patient was directly harmed by the illicit behavior. It’s relatively easy for doctors to obtain prescription drugs because they have their own script-writing pads. When nurses develop problems with opiates, it’s more common for them to steal drugs intended for patients.
That makes it easier for nurses to get caught. They’re typically the ones administering narcotics to patients, and thus are subject to a range of human and electronic monitoring, including drug-scanning procedures, audits and software that seek out aberrant behavior.
Consider the case of Susan Pierce, a registered nurse who was convicted in May 2003 of elder abuse and diverting drugs for her personal use. Pierce was caught stealing from the morphine pump of a dying patient.
“They were right there in my face,” Pierce said in a 2006 film about drug diversion in Vermont. “The temptation was too great.”
Pierce’s story was one of several in a documentary produced by the attorney general’s office, titled Drug Diversion in Vermont: When Healing Hands Harm. The film was part of an aggressive campaign, launched in 2006 by the AG’s Medicaid Fraud and Residential Abuse Unit, to crack down on prescription drug abuse and diversion in Vermont’s health care industry.
That was also the year that prescription opiates overtook heroin as the number-one reason Vermonters sought addiction treatment in state-funded programs. By 2008, Vermont had the second highest per-capita rate of admissions for prescription opiate addiction of any state.
Since then, Phil Ciotti has had his hands full. A state law enforcement officer with the Board of Medical Practice, Ciotti is one of only two investigators in the state charged with looking into complaints of professional misconduct by doctors.
Ciotti can’t say precisely how many of his cases in recent years have involved opiate diversion, as those cases fall under the larger umbrella of “prescribing issues,” which also includes complaints of under-prescribing. Still, he says, “I seem to be spending a lot of time on drug cases these days.” In fact, the last three public actions he handled all involved inappropriate prescribing practices by docs. Only one ended in a revoked license.
Ciotti says he exonerates far more physicians than he prosecutes, “but every profession has its share of people who get addicted to substances, and our profession certainly isn’t immune to it.”
Ciotti can’t say whether the system is more lenient with physicians than nurses, as he doesn’t investigate nurses. The Board of Nursing is part of the secretary of state’s office, whereas the Board of Medical Practice is part of the Department of Health.
Conversely, Jeanine Carr, who chairs the state Board of Nursing, says she can’t make a fair comparison either because her board doesn’t deal with physicians.
Chris Winters, director of the office of professional regulation, which licenses nurses as well as a variety of other Vermont professionals, suggests that nurses and physicians with drug problems are treated equally.
Referring to the Board of Medical Practice, he says, “I think we share that philosophy of trying to preserve the practitioner as long as they can continue to get treatment and practice safely.”
Winters says his office is less likely to pursue criminal charges if a nurse comes forward to seek help and patients weren’t involved. In those cases, his office prefers to get nurses into treatment and bring them back to work under a conditional license with supervision.
Nationally, doctors and nurses fall victim to substance abuse problems at roughly the same rates as the general population, though nurses appear more likely to abuse opiates than other substances.
Karen McBride, Fletcher Allen’s director of pharmacy services, explains that the profile of the chemically dependent nurse is “not what you would expect.” According to medical literature on the subject, she says, they tend to have stressful jobs, are high academic achievers and have an average of 11 to 17 years of service before the onset of their addiction.
“These [nurses] tend to be very demanding of themselves, self-critical, and also tend to ignore tension and depression in their own lives,” says McBride. “And that’s what ends them up on this path.”
McBride points out that Fletcher Allen isn’t just monitoring nurses, but anyone in the hospital who handles controlled substances, including pharmacists and anesthesiologists. Of the latter, she notes, about a dozen anesthesiologists die each year across the country from overdoses of Fentanyl, a powerful opiate. “So it’s not just a nursing issue.”
But Elizabeth Pace isn’t convinced that all medical professionals are on a level playing field when it comes to second chances. Pace has been a nurse for more than 25 years and serves on the board of the International Nurses Society on Addictions. She also runs a nonprofit treatment program in Denver, Colo., called Peer Assistance Services, which treats nurses, pharmacists and dentists.
Nationally, Pace says, “It appears that nurses are treated very differently.” In fact, her organization was founded specifically to address that disparity where, she observed, “nurses were often publicly sanctioned and lost their licenses.”
While Pace cannot comment specifically on what happens in Vermont, she says that there are several reasons why the system can be more punitive to nurses. In addition to the reasons already cited about patient harm, Pace adds that physicians who are self-employed or work in small practices tend to have more opportunities to get help privately and quietly, whereas nurses are more likely to work in larger institutions such as hospitals and nursing homes.
She also suggests that the physician community may be more likely to “protect its own” and not publicly report problematic docs. Finally, she says, society has historically placed a greater value on physicians than nurses, in part because of the gender disparity between the professions.
Are those societal values changing, at least in Vermont?
Burlington attorney McArthur thinks so. He says he’s observed a changing attitude by the nursing board toward nurses with addiction issues.
“Within the last couple of years they’ve been very willing to look at the mitigating factors and judge each nurse that’s diverting based on the totality of the circumstances,” he says. “Is this a first offense? Do they have a problem? Are they addressing the problem?”
That said, McArthur says it’s still an uphill — and costly — battle for nurses to regain their jobs and professional reputations, especially for those who are wrongly accused. Simply put, when pill counts come up short, nurses are often presumed guilty until they can prove themselves innocent.
Winters says he’s witnessed a number of success stories, especially among nurses for whom keeping their licenses was a major incentive for seeking addiction treatment.
“These are not criminals,” he says. “These are good people who have a bad problem they’re struggling with.”