Disruptive Physicians - Poyner Spruill LLP

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:

Good-faith criticism communicated to improve quality of care;
Encouraging clear communication;
Expressions of concern about a patient’s care and safety;
Expressions of concern about hospital policies;
Constructive criticism;
Comments to leadership regarding patient care by others;
Participating in medical staff/hospital meetings;
Membership on other medical staffs; and
Seeking legal advice or initiating legal action for cause.

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:

Making belittling, personally sarcastic, or condescending statements;
Name-calling;
Using profanity;
“Blatantly” failing to respond to patient care needs or staff requests; and
“Deliberately” failing to return calls, pages, and messages.

Disruptive behaviors include, but are not limited to:

Physically threatening anyone in the hospital;
Making threatening or intimidating physical contact with another person;
Throwing things;
Threatening violence or retribution;
Sexual and other harassment; and
Persistent inappropriate behavior, rising to the level of harassment.

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:

Medical staff bylaws and their protections are applicable throughout the procedures described by the Model Code, including the right of the physician to be represented by an attorney at each stage of the proceedings.
Reporting may not be anonymous. Any complaint must be made in writing and signed by the complainant. however, no physician may retaliate against a complainant and retaliation is itself grounds for corrective action, even if the original complaint was not.
A copy of the complaint must be provided to the physician, who may then respond in writing to the allegations.
An ad hoc committee, consisting of one medical staff officer and two or more elected members of the medical executive committee (one of which must be the accused physician’s department head), must investigate the allegations to determine whether they are legitimate and how serious they are.
Discipline for inappropriate behavior depends on how many times the physician has been accused. A first offense requires informal counseling of the accused physician by the department head. A second offense, unless it manifests a persistent course of inappropriate conduct, requires sending a notification to the physician of the conduct expected of him or her. Continued or persistent offenses may amount to harassment requiring a rehabilitative action plan, and if it proves unsuccessful, a final warning letter indicating that suspension or termination proceedings may ensue in accordance with the provisions of the medical staff bylaws. Records of these types of actions are to be kept confidential, in a file separate from the physician’s credentialing file.
Four types of misconduct can lead to corrective action, a fair hearing, and loss of privileges or staff membership. The first two are (i) repeated disruptive behavior and (ii) repeated inappropriate behavior that rises to the level of repeated harassment (which is, of course, a kind of disruptive behavior).
The third kind of misconduct that leads to a fair hearing is a summary suspension (in accordance with the medical staff bylaws) for a single incidence of disruptive behavior that constitutes “an imminent danger to the health of an individual.”
The fourth kind of misconduct that leads to corrective action is, as mentioned above, retaliation.
If the behavior may be due to illness or impairment, confidential investigation and evaluation per the provisions of the medical staff bylaws may be most appropriate. Such evaluation is available in North Carolina through the Physicians Health Program. Hospitals should note that the Americans with Disabilities Act might provide a basis for a disgruntled physician whose behavior is triggered by, for example, a substance abuse problem to take legal action against the hospital for alleged unfair treatment. Thus, it is important to investigate the allegations and to involve appropriate professionals to assist with handling of behavior related to substance abuse or mental health impairments.

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:

Reasonably believe that the action is in furtherance of quality care;
Make reasonable efforts to obtain the facts of the matter;
Provide adequate notice and hearing procedures for the physician (or other such procedures as are fair
under the circumstances); and
After an investigation and hearing, reasonably believe that any action taken against the physician was justified by the facts.

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:

Definitions: Your policy should define behaviors that may constitute disruptive conduct by a medical staff
member. The AMA Model Code would be a useful starting place, but every medical staff and every hospital need to meet their own needs.
Complaint Process: Your policy should detail procedures for reporting disruptive behavior, including requirements for the content of the report, to whom to report, and whether the report may be anonymous.
Some facilities use hotlines for anonymous reporting, though the AMA Model Code advocates against
anonymous reporting. The JC standards are silent on this issue.
Investigative Procedures: Every complaint should be evaluated, and your policy should define who is
responsible for conducting the evaluation and investigation, how the investigation will be carried out, and to some extent what parameters will be used in conducting the investigation so as to guarantee it is a reasonable investigation. Generally, this process should be in line with that of your medical staff bylaws’
process for investigating other misconduct by physicians.
Due Process Procedures: Medical staff bylaws invariably define the grounds that would support corrective action that might lead to a loss of medical staff membership or clinical privileges and those that would not. A distinction between inappropriate and disruptive conduct that may or may not lead to corrective action requires carefully written bylaws that clearly state what conduct leads to corrective action and when.
Disposition of the Complaint: Your policy should set forth the possible outcomes once a complaint is initiated. For example, if the complaint is investigated and unsubstantiated, it will be dismissed. A record of the complaint and the investigation will be maintained outside of the physician’s credentialing file. If the complaint is investigated and substantiated and a hearing is held, the following sanctions may be issued: reprimand, mandatory participation in a rehabilitation program, suspension, and so forth. It should be noted that unprofessional conduct that could have affected or actually did adversely affect a patient and that resulted in a suspension or other adverse action against the physician’s clinical privileges lasting more than 30 days must be reported to the National Practitioner Data Bank.

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.