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Just over a year ago, in July 2008, the Joint Commission (JC) issued two standards that address disruptive behavior, a leadership standard (LD.03.01.01) and a medical staff standard (formerly MS.4.00, now MS.06.01.03). These standards went into effect January 1 of this year, requiring JC-accredited hospitals and other health care institutions to develop a code of conduct that defines acceptable, inappropriate, and disruptive physician behavior and the process for addressing such behavior. These standards obviously aim to ensure that quality of care is not compromised, so the goal should not be to punish but to deter and address disruptive behavior so that a physician may return to a safe and productive practice. The JC medical staff standard lists general competencies expected of physicians undergoing the credentialing and privileging process and adds two behavior-relevant competencies: Interpersonal and Communication Skills, and Professionalism. (See Introduction to Standard MS.06.01.03.)

The JC standard for leadership sets forth ten “Elements of Performance” under LD.03.01.01 that the JC believes will help leaders foster a “culture of safety and quality” in their institutions. These elements are broad – it is up to the institution to determine how to accomplish these objectives. Generally, the elements require hospital leadership to regularly evaluate its hospital’s “culture of safety,” to identify and implement needed changes, and to foster open discussion of safety and quality issues. Specifically, two of the elements require the hospital to implement a code of conduct that defines acceptable, disruptive, and inappropriate behaviors, and to implement a process for managing disruptive and inappropriate behaviors. (See LD.03.01.01, Elements of Performance 4 and 5.) The LD standard provides no example code of conduct or evaluation/discipline process.

In response to the JC standards, the AMA issued its own Model Medical Staff Code of Conduct (the Model Code) in March of this year, and it called for these codes to be incorporated into hospital medical staff bylaws, where they will always have the greatest dignity and where, in most states (including North Carolina), they will have the force of contracts. In its Model Code, the AMA was concerned, among other things, about defining disruptive behavior too broadly and about being sure to provide adequate due process provisions. To expand on and clarify the JC standards, the AMA’s Model Code incorporated specific examples of appropriate, inappropriate, and disruptive behaviors and provided a comparatively detailed procedure for addressing the latter.

Appropriate behaviors under the AMA Model Code include:

All these behaviors must be carried out in a respectful, appropriate, reasonable, and professional manner. The AMA clearly wants to encourage and protect doctors’ words and deeds that are intended to protect their patients and their profession while, at the same time, reminding all physicians to act appropriately and professionally when they seek to protect their patients and their profession. Under the AMA Model Code, once it is determined the conduct is appropriate, it cannot be punished.

The AMA Model Code distinguishes between inappropriate and disruptive behaviors, with the former being unwarranted behaviors that reasonable people would see as offensive and the latter being those abusive behaviors that rise to the level of risking harm to a patient or to quality of care. The Model Code discourages and provides for the correction of inappropriate behaviors, while it prohibits and provides for the punishment of disruptive behaviors.

Inappropriate behaviors under the Model Code include, but are not limited to:

Disruptive behaviors include, but are not limited to:

The Model Code’s distinction between types of misconduct and its levels of discipline, as noted below, seem to draw a distinction between the type of conduct that a hospital must address but which should not be grounds for suspension or other formal “corrective action” against a physician’s clinical privileges and conduct which should be grounds for “corrective action.” In keeping with the AMA’s apparent goal of addressing some lesser misconduct without immediately and unnecessarily submitting physicians and committing hospital resources to corrective action and the fair hearing process, the Model Code’s procedures for handling inappropriate and disruptive physician behavior include the following:

Any hospital should also keep in mind the provisions of the Health Care Quality Improvement Act (HCQIA), which, if met by the hospital, afford the hospital qualified immunity from monetary damages in a lawsuit by the disciplined physician. When a hospital takes action against a physician, the hospital must:

HCQIA has been in effect for many years, and by now all staff bylaws or fair hearing plans ought to meet its requirements, but there are elements of intent in the law, and actual ill will or unreasonable conduct will leave the parties open to suit.

So what should your hospital’s code of conduct and procedures for addressing inappropriate and/or disruptive behavior look like? First, keep in mind that the code of conduct and related procedures are hospital policies that must be in line with JC standards but also must be designed to achieve fairness for the institution and the physician. Some key elements of any such policy include:

Once a policy or code of conduct is in place, it is imperative that the hospital educate its medical staff and other personnel on the policy in order to provide proper notice to the physicians it may affect and to deter inappropriate and disruptive behaviors. Grounds for physician discipline should always appear in the medical staff bylaws, so best practice dictates making your hospital’s code of physician conduct and related fair hearing plan part of your medical staff bylaws.

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