• Disruptive Physicians Developments and Application of the Law
  • December 14, 2009 | Author: Jeffrey C. Grass
  • Law Firm: Law Office of Jeffrey C. Grass, PLLC - Plano Office
  • "Professional peer review is intended to protect the public from incompetent or unethical practitioners. However, it could and often does remove the most honest, ethical, and competent physicians, to the advantage of unscrupulous competitors."
    Verner S. Waite, M.D.

    As a consequence of the current state of healthcare law under the JCAHO and AMA guidelines, American physician’s, sworn to protect their patients from harm, increasingly face a surprising obstacle – their own hospitals.

    The mechanism under the JCAHO and AMA now used by hospitals to perpetrate the sham peer review of physicians come under the classification of the “Disruptive Physician.” But what does that mean? The JCAHO has stated that healthcare organizations have an obligation to protect patients from harm, and that they are therefore required to design a process that provides education and prevention of physical, psychiatric, and emotional illness and facilitates confidential diagnosis, treatment, and rehabilitation of potentially impaired physicians. The JCAHO proclaims that the focus of this process is rehabilitation rather than discipline, to aid a physician in retaining or regaining optimal professional functioning, consistent with the protection of patients. However, in reality theJCAHO standards also direct that if, at any time during this process, it is determined that a physician is unable to safely perform according to the privileges that he or she had been granted, the matter is forwarded to medical staff leadership for appropriate corrective action. Such action includes, but is not limited to, strict adherence to any state or federally mandated reporting requirements such as the National Practitioner Data Bank.
    The JCAHO states that this process should include:
    ·         Education of physicians and other hospital staff about their illness and impairment-recognition issues specific to physicians;
    ·         Self-referral by a physician;
    ·         Referral by others and creation of confidentiality of informants;
    ·         Referral of the affected physician to the appropriate professional internal or external resources for evaluation, diagnosis, and treatment of the condition or concern;
    ·         Maintenance of the confidentiality of the physician seeking referral or referred for assistance, except as limited by law, ethical obligation, or when the safety of a patient is threatened;
    ·         Evaluation of the credibility of a complaint, allegation, or concern;
    ·         Monitoring of the affected physician and safety of patients until the rehabilitation or any disciplinary process is complete and periodically thereafter if required; and
    ·         Reporting to the medical leadership instances in which a physician is providing unsafe treatment.

    The JCAHO states that the rationale for implementing such requirements arises from the intimidating and disruptive behaviors by physicians that can foster medical errors,(1,2,3) contribute to poor patient satisfaction and to preventable adverse outcomes,(1,4,5) increase the cost of care,(4,5) and cause qualified clinicians, administrators and managers to seek new positions in more professional environments. (1,6) The JCAHO observes that safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment. To assure quality and to promote a culture of safety, health care organizations must address the problem of behaviors that threaten the performance of the health care team.
    The Joint Commission has proposed disruptive behavior standards. Intimidating and disruptive behaviors include overt actions such as verbal outbursts and physical threats, as well as passive activities such as refusing to perform assigned tasks or quietly exhibiting uncooperative attitudes during routine activities. Intimidating and disruptive behaviors which are manifested by health care professionals in positions of power. According to JCAHO, such behaviors include reluctance or refusal to answer questions, return phone calls or pages; condescending language or voice intonation; and impatience with questions.(2) Also included are overt and passive behaviors which undermine team effectiveness and that can compromise the safety of patients.(7, 8, 11) Therefore, included are all intimidating and disruptive behaviors which can be considered unprofessional and should not be tolerated.
    Root causes and contributing factors
    The JCAHO states that intimidating and disruptive behavior stems from both individual and systemic factors.(4) The inherent stresses of dealing with high stakes, high emotion situations can contribute to occasional intimidating or disruptive behavior, particularly in the presence of factors such as fatigue. Individual care providers who exhibit characteristics such as self-centeredness, immaturity, or defensiveness can be more prone to unprofessional behavior.(8,11) They can lack interpersonal, coping or conflict management skills. 
    Systemic factors stem from the unique health care cultural environment, which is marked by pressures that include increased productivity demands, cost containment requirements, embedded hierarchies, and fear of or stress from litigation. These pressures can be further exacerbated by changes to or differences in the authority, autonomy, empowerment, and roles or values of professionals on the health care team, (5,7,16) as well as by the continual flux of daily changes in shifts, rotations, and interdepartmental support staff. This dynamic creates challenges for inter-professional communication and for the development of trust among team members.
    Existing Joint Commission requirements
    Effective January 1, 2009 for all accreditation programs, The Joint Commission has a new Leadership standard (LD.03.01.01)* that addresses disruptive and inappropriate behaviors in two of its elements of performance:
    EP 4:  The hospital/organization has a code of conduct that defines acceptable and disruptive and inappropriate behaviors.
    EP 5:  Leaders create and implement a process for managing disruptive and inappropriate behaviors.
    In addition, standards in the Medical Staff chapter have been organized to follow six core competencies (see the introduction to MS.4) to be addressed in the credentialing process, including interpersonal skills and professionalism.
    Other Joint Commission suggested actions
    1. Educate all team members – both physicians and non-physician staff – on appropriate professional behavior defined by the organization’s code of conduct. The code and education should emphasize respect. Include training in basic business etiquette (particularly phone skills) and people skills.(10, 18,19)
    2. Hold all team members accountable for modeling desirable behaviors, and enforce the code consistently and equitably among all staff regardless of seniority or clinical discipline in a positive fashion through reinforcement as well as punishment.(2,4,9,10,11)
    3. Develop and implement policies and procedures/processes appropriate for the organization that address:
      • “Zero tolerance” for intimidating and/or disruptive behaviors, especially the most egregious instances of disruptive behavior such as assault and other criminal acts. Incorporate the zero tolerance policy into medical staff bylaws and employment agreements as well as administrative policies.
      • Medical staff policies regarding intimidating and/or disruptive behaviors of physicians within a health care organization should be complementary and supportive of the policies that are present in the organization for non-physician staff.
      • Reducing fear of intimidation or retribution and protecting those who report or cooperate in the investigation of intimidating, disruptive and other unprofessional behavior.(10,18) Non-retaliation clauses should be included in all policy statements that address disruptive behaviors.
      • Responding to patients and/or their families who are involved in or witness intimidating and/or disruptive behaviors. The response should include hearing and empathizing with their concerns, thanking them for sharing those concerns, and apologizing.(11)
      • How and when to begin disciplinary actions (such as suspension, termination, loss of clinical privileges, reports to professional licensure bodies).
    4. Develop an organizational process for addressing intimidating and disruptive behaviors (LD.3.10 EP 5) that solicits and integrates substantial input from an inter-professional team including representation of medical and nursing staff, administrators and other employees.(4,10,18)
    5. Provide skills-based training and coaching for all leaders and managers in relationship-building and collaborative practice, including skills for giving feedback on unprofessional behavior, and conflict resolution.(4,7,10,11,17,20) Cultural assessment tools can also be used to measure whether or not attitudes change over time.
    6. Develop and implement a system for assessing staff perceptions of the seriousness and extent of instances of unprofessional behaviors and the risk of harm to patients.(10,17,18)
    7. Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior. Include ombuds services(20) and patient advocates,(2,11) both of which provide important feedback from patients and families who may experience intimidating or disruptive behavior from health professionals. Monitor system effectiveness through regular surveys, focus groups, peer and team member evaluations, or other methods.(10) Have multiple and specific strategies to learn whether intimidating or disruptive behaviors exist or recur, such as through direct inquiries at routine intervals with staff, supervisors, and peers.
    8. Support surveillance with tiered, non-confrontational interventional strategies, starting with informal “cup of coffee” conversations directly addressing the problem and moving toward detailed action plans and progressive discipline, if patterns persist. (4,5,10,11) These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety.(4,5) Make use of mediators and conflict coaches when professional dispute resolution skills are needed.(4,7,14)
    9. Conduct all interventions within the context of an organizational commitment to the health and well-being of all staff, (11) with adequate resources to support individuals whose behavior is caused or influenced by physical or mental health pathologies.
    10. Encourage inter-professional dialogues across a variety of forums as a proactive way of addressing ongoing conflicts, overcoming them, and moving forward through improved collaboration and communication.(1,2,4,10)
    11. Document all attempts to address intimidating and disruptive behaviors.(18)
    * The 2009 standards have been renumbered as part of the Standards Improvement Initiative. During development, this standard was number LD.3.10.
    The AMA Guidelines

    The AMA policy (H-140.918 Disruptive Physician) goes even farther that the JCAHO by stating that institutions should set the flowing policies:
    (1)   Personal conduct, whether verbal or physical, that affects or that potentially may affect patient care negatively constitutes disruptibve behavior. (Criticism that is offered in good faith with the aim of improving patient care should not be construed as disruptive behavior).
    (2)   Each medical staff should develop and adopt bylaw provisions or policies for intervening in situations where a behavior is identified as disruptive and refer such concerns to a medical staff wellness – or equivalent – committee.
    (3)   Each medical staff should develop and adopt a policy describing the behavior or types of behavior that will prompt intervention.
    Application of the JCAHO and AMA Guidelines
    In actual practice, the “Disruptive Physician” as set forth in JCAHO and AMA Guidelines is being used by hospitals to retaliate against good doctors who bring patient safety/quality of care concerns to the hospital administration’s attention.  Many of the physicians who try to improve the standard of patient care are disciplined or dismissed for being “disruptive” through the peer review process. Likewise, hospitals frequently turn the tables on whistleblowers and accuse them of being “disruptive.” Of course, these threats of internal investigations that could result in listing the complaining doctors in the National Practitioner Data Bank,  which can make finding a similar position at another hospital all but impossible.
    The peer review actions brought against the disruptive physician who do not pose a threat to patient safety or quality of medical care, are a sham. That is, they are official corrective actions taken in bad faith and are disguised to look legitimate. The emergence of the vague and nebulous category of the “disruptive physician” is now being used by hospital to rid themselves of physicians who advocate for quality patient care or patient safety and are too often used by a physician’s economic competitors to eliminate unwanted competition. The category of the “disruptive physicians may be totally bogus, fabricated and false. The danger of this law is that there are a myriad of categories which qualify one for the “disruptive physician” label. These categories include, but are not limited to the following:
    1.      Political: Expressing political views that are disagreeable to the hospital administration.
    2.      Economic: Refusing to join a physician-hospital venture, or to participate in an HMO offered to hospital employees, or offering a service that competes with the hospital.
    3.      Concerns for quality care: Speaking out about deficiencies in quality of care or patient safety in the hospital, or simply bringing such concerns to the attention of the hospital administration.
    4.      Personality:  Engaging in independent thought or resisting a hospital administrations’s “authority.”
    5.      Competence: Striving for a high level of competence, or considering oneself to be right most of the time in clinical judgment.
    6.      Timing: Making rounds at times different than those of other physicians.
    The cases where physicians are disciplined for being disruptive are typically when no other basis for disciplinary action can be made. The mechanism for visiting such atrocities against physicians by hospitals are found in the “corrective action” section of the hospital bylaws. This is where you will find the “disruptive physician” clause. Therefore, the definition of “disruptive” is entirely under the control of the hospital administration and the attorneys advising them who specialize in such matters. The most notable among these is John Horty of Horty Springer and Mattern of Pittsburgh, which has represented 400 to 500 hospitals and who states that the “relationships between hospitals and physicians are the worst he has ever seen.”
    Common Fates of Disruptive Physicians
    One thing is clear … those targeted for being disruptive all face common fates. These include:
    Loss of patients and their practice. Summary suspensions, loss or limitation of privileges, and the damage to reputation and the long ordeal s associated with the hearing processes destroys these physicians careers.
    Prolonged investigations. Some physicians wait years to exhaust their administrative and judicial remedies.
    Financial ruin. Physicians estimate that they suffer a loss of income from 80 percent to complete financial ruin.
    Lack of relief from courts. Almost uniformally, the courts have given hospitals a wide berth in handling staff credentialing matters. The courts have declined “to enmesh themselves in hospital governance” and refuse to “intervene in matter concerning patient care” even when it is uncontroverted that there is no issue of substandard care.
    Judicial Rulings
    When physicians seek remedies under hospital bylaws, the hospital is free to terminate the physician’s hospital privileges for any reason it can contrive under the “disruptive physician” section. The federal courts are then upholding those decisions and granting immunity to the hospital and its staff under the HCQIA, even in cases where due process protections are not observed. 
    From a legal standpoint, the best available measures for protection of the practicing physician against the arbitrary use of this application of the law, the following recommendations are suggested:
    Charles Bond recommends that Physicians do the following:
    1. Hire his/her own independent lawyer who is an expert in hospital law and who is a physician advocate. Lawyers who primarily represent hospitals or are paid by hospitals will inevitably have divided loyalties. Don't be fooled, a hospital-appointed lawyer is not in a position to represent your best interests: these are the lawyers who signed on to the letter to JCAHO. Use proven physicians' advocates -- lawyers who just represent doctors, not hospitals or health plans. There are several lawyers around the country, and having their undivided loyalty makes the effort of seeking out these dedicated attorneys worthwhile.
    2. Incorporate the medical staff as a separate entity to eliminate any challenge to its independence and right to self-governance.. A separate corporation assures the medical staff maintains control over its bylaws, establishes its own criteria for membership, and conducts its own elections. If the medical staff is incorporated, these matters are governed by corporate law, not the law of hospital/medical staff relations, which the hospital lawyers are now trying to manipulate and change.
    3. Ask your state and national medical societies to lobby for stronger laws assuring medical staff independence and outlawing hospital stipends to medical staff officers. Amend your own medical staff bylaws to preclude stipended doctors from serving on peer review panels, especially appellate panels.
    4. JCAHO should provide independent Medical Review Boards.
    5. Recognize peer review when it is happening to you. There is no doubt that peer review is occurring when you get a letter proposing adverse peer review actions. The more problematic cases are the peer review processes that begin with collegial counseling or intervention.
    There are two types of collegial intervention, but both can be traps. The first is the meaning discussion with a well-meaning colleague who serves on the relevant peer review committee. Since most colleagues desire to avoid conflict among themselves, it is sometimes difficult to identify these conversations as actual peer review. However, these conversations can show up later as recorded attempts to correct perceived misconduct.
    The second and more obvious collegial intervention is an actual meeting with somebody that is less of a colleague and more of a peer review officer. Even though these interventions are clearly peer review, physicians often perceive these somewhat informed meetings as officious intrusions and either disregard the meetings or respond inappropriately.
    It is important to recognize that both of these interventions can have future consequences if they are not recognized as harbingers of precursors to potential peer review problems.
    6.   Request access to peer review records. Whenever physicians are advised that someone perceives a problem with their performance or their conduct, that physician should request a copy of the complaint or record precipitating the peer review contact, even if the hospital insists upon maintaining anonymity at that point. It is important to know how many complaints there may have been and what those complaints say. It is also important that physicians create a record of this process, preferably a record that includes at least neutral and perhaps partial witnesses. Third-party witnesses are important to prevent later distortions of the facts.
    7. Resist the urge to counterattack. Most accomplished individuals, and doctors include themselves in this category, resent disparaging comments about their conduct or competence. Resist the urge to be overly defensive. Threatening whistleblower disclosures and accusing the other physicians involved in the peer review process of competitive conspiracies and jealousies polarizes the peer review process. The other physicians resent the attacks just as much the target physician resents the intrusion. The precipitous counter attack rarely reads the mutually acceptable results.
    8. Retain experienced counsel. It is amazing that physicians who seek a medical consult at the first sign of a medical problem outside the scope of their particular sub-specialty nevertheless believe they can represent themselves in the peer review process or of that counsel is not necessary until the end of the process, when the physician as legal-patient now requires emergency surgery. Seeking experienced counsel is not an indication of lack intelligence; the issue is not intelligence, but training, experience and detached analysis.
    Finally as a physician, you should be active and defend your profession vigorously. The hospital industry, the health plan industry, the government and allied professionals all want to take pieces of your profession, and your professionalism, away from you. Without the support of organized medicine (notably AMA and CMA), the medical staff in Ventura would not be able to fight. So join and become active in your state and national medical associations, and give generously to their litigation defense funds and political action committees. They are fighting for you. Now is the time to revitalize organized medicine, and it begins with individuals like you.
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