THE DISRUPTIVE PHYSICIAN AND THE
HEALTH CARE QUALITY IMPROVEMENT ACT (HCQIA)
BY
ALLAN TOBIAS, MD, JD
ISSUE
Some hospital staffs have at
least one physician that is "disruptive" in the smooth running of the hospital
or medical staff. What is meant by disruptive and how is the situation best
handled? Due to space constraints there will be no discussion of sexual
harassment.
DIAGNOSIS
Who is "disruptive"? Is it the
physician who advocates, even in a loud manner, for better patient care? Is it
the physician who advocates for the "vocal minority" of the medical staff, the
loyal opposition? Although these physicians may cause consternation to the
hospital administration, I do not believe they fall under the heading of those
the medical staff would want to discipline.
The medical staff bylaws, as
reviewed by an advocate retained by the medical staff who has experience with
the physician perspective in the medical staff bylaws, should be the guide. The
reason for the independent review is there is a potential for a conflict of
interest between the hospital and the medical staff, especially as the medical
staff represents the physician’s interests. The bylaws, rules and regulations or
policy should specify in its definitions what is meant by "disruptive" and
define the nexus to quality medical care. This may be a statement that the
physician applying for initial membership or reappointment will be able to work
with others as to not cause adverse patient care. Vague phrases such as
"cooperatively" should be avoided. In all cases of initial appointment the
burden of proof is on the physician to show their ability to work well with
others and not cause a problem with the quality of medical care. On
reappointment the burden would be on the charging party, the medical executive
committee.
Repeated acts of uncontrolled
anger as manifested by yelling or other verbal abuse towards patients, visitors,
hospital personnel, other physicians or any one act of physical abuse toward any
person should never be tolerated. This type of incident would be the underlying
tenet of the disruptive physician, their inability to get along with others as a
cause for deteriorating patient care. If a nurse is afraid to call a physician
for fear of being verbally castigated and a potential for harm to the patient
results, this is a disruptive act or verbal harassment. The main points above
are the repeated verbal acts or one single physical act and the causation
element of decreased quality of care. Both must be present.
If a physician rarely blows up
and/or when investigated the incident is potentially justified, there is no need
to proceed further. If a physician sends multiple letters to the Chief of Staff
regarding what he/she perceives as poor patient care or poor performance by any
hospital employee or administrator or medical staff officer, this is opinion and
does not effect patient care either directly or indirectly. Since this is done
via formal channels and there is no causation, no disciplinary action is
required.
DIFFERENTIAL DIAGNOSIS
If a physician is acting
unprofessionally as defined by repeated verbal harassment causing problems with
patient care, the medical staff should look to the underlying reasons. This is
especially true if this is a new behavior. There may be physical as well as
mental causes for the behavioral change. Many physicians, especially in this age
of managed care with more requirements and less income, may have significant
stress in their professional or personal lives. This stress may lead to alcohol
or drugs. The medical staff needs to be aware of the legal aspects of the
Americans with Disabilities Act and may need to hire appropriate independent
legal counsel. The new JCAHO requirements starting in 2001 also address this
issue (see
www.jcaho.org).
TREATMENT
The Medical Executive Committee
needs to establish a well thought out policy for dealing with the disruptive
physician or verbal harasser. The policy should be disseminated to the entire
medical staff for their approval via an insertion into the medical staff bylaws
or rules and regulations. It should also be distributed to all hospital
employees. This policy should include time lines for investigation and the
handling of the disruptive act. Once a policy is in place, it must be followed.
Do not back down if the physician threatens to sue for antitrust, defamation or
other actions.
In the past a senior member of
the medical staff and a friend would informally discuss the problem with the
physician. This is probably still the best first step in the diagnosis and
treatment of the individual. A medical staff wellness or assistance committee,
where confidential discussions may take place, may be the next appropriate
referral. This may show the physician is impaired and therapy may rehabilitate
the physician, so the community may not lose an otherwise good doctor. Even if
the physician agrees voluntarily to obtain help, vigilance and close follow-up
must be performed. More formal action is indicated if the disruptive acts
continue. If a physician refuses to meet with the wellness or other medical
staff committee regarding the conduct, immediate suspension of privileges would
be appropriate until a meeting is held.
Formal action would consist of
a disciplinary hearing. The medical staff needs to have clearly documented and
persuasive evidence of repeated disruptive behavioral acts that placed patient(s)
at risk for an adverse outcome. This evidence, however, should be relatively
recent. Actions that happened longer ago than the two prior reappointment
periods may not be relevant to the current action unless it was part of a
continuous string of events.
One hospital consultant
believes that if a hospital removes the physician solely upon disruptive
conduct, the physician need not be afforded a "fair hearing" as defined by
medical staff bylaws. Their sample policy goes on to state that only a single
appeal to the board will be permitted. If the board is unclear whether the
conduct was disruptive, they may seek the expert opinion of an impartial
individual experienced in such matters. This policy flies in the face of the
legal definition of due process where the same group is both the trial court and
the appeal board. Although the board is responsible for the final decision as to
who is on the medical staff, this type of unilateral decision may lead to a
significant political backlash by the medical staff and possible legal action
against the hospital.
The formal action against a
Licensed Independent Practitioner for quality of care issues by the medical
staff and finally by the hospital board must follow the rules of due process as
outlined by the Health Care Quality Improvement Act or the equivalent State law
and the medical staff bylaws. This means there must be a notice of all specific
charges against the physician and an offer of a formal fair hearing and appeal
processes. Rarely, since disruptive behavior is something that happens over
time, is summary suspension appropriate.
If the physician’s medical
staff membership and/or privileges are reduced or revoked due to the disruptive
influence on the healthcare team’s ability to give good quality patient care and
the physician sues, both federal and state courts have usually sided with the
hospital. Several New Jersey courts have stated that all the hospital needs to
establish is "prospective disharmony will probably have an adverse impact on
patient care." An Ohio court of appeal decision allowed the hospital board to
overrule the medical staff and refuse reappointment on grounds other than
professional competence to a physician who made public comments critical of the
hospital. As stated above these decisions, as well as California and West
Virginia decisions that favor the physician link the questionable behavior to a
decrease in quality of care.
If the disruptive physician is
a contract physician their contract may be cancelled or not renewed. There is a
split of opinion as to whether these physicians must be given a formal hearing.
Some hospital consultants state that since only the contract is lost and not
privileges, a reportable event has not occurred and no hearing is necessary. The
counter argument as advanced by attorneys representing the physicians state that
since the definition of a disruptive physician is conduct that adversely effects
the quality of patient care, it is a reportable offense and deserves a full
hearing.
In summary, a disruptive
physician is usually one who over time and by the use of verbal harassment
causes a disruption and potential for decreased quality of patient care. These
physicians may, depending on the circumstances, be dealt with in a variety of
ways from a friendly discussion to loss of staff membership and privileges.
DISCLAIMER:
Although this article is updated periodically, it reflects the author's point of
view at the time of publication. Nothing in this article constitutes legal
advice. Readers should consult with their own legal counsel before acting on any
of the information presented.
Allan Tobias MD JD is the
principal in Allan Tobias MD, JD Healthcare Consulting & Law, specializing in
medical staff and individual physician legal issues. He may be reached at (925)
935-5517 or
altoby@aol.com.
|