Representing the Disruptive Physician
By Michael J. Jordan, Walter & Haverfield LLP, Cleveland, OH
The controversy over what constitutes “disruptive behavior” continues to smolder. When the Joint Commission (JC) refused to delay implementation of a new standard requiring hospitals to have a code of conduct defining “acceptable, inappropriate and disruptive behavior,” the American Medical Association, which had unsuccessfully requested the JC to delay implementation of the new standard, responded by promulgating its own “Model Medical Staff Code of Conduct” in March 2009. While an entire article could focus on the differences between the JC Standard and the Code of Conduct, the fact that the issue has attracted such attention confirms that disciplinary actions based on allegations of disruptive behavior have markedly increased and generated considerable controversy in the medical community.
Several scenarios may give rise to disruptive behavior allegations. For example, a physician may be labeled disruptive if he disagrees with policy decisions made by the hospital. There may be the unfortunate, and risky, situation where a physician screams profanities at nurses. Situations involving drug and/or alcohol abuse may also surface. Other cases may have their genesis in economic disagreements, such as when a physician refuses to sell his practice to the hospital or refuses to participate in a joint venture. Situations may arise where a physician believes a hospital is not providing top-quality patient care. Other cases might simply involve personality clashes, which may become particularly problematic if the “clash” is between a physician and a member of the hospital administration. Some of these matters – a tirade in the ER – are easily linked to patient care issues. In other circumstances – disagreements over hospital policy – the connection to patient care is more tenuous.
Whatever the origin, when a peer review investigation is rooted in allegations of disruptive behavior, it may present a particularly challenging issue for the physician being investigated. Although there is clearly subjectivity even in matters involving solely medical care and treatment issues, the subjective component is heightened when allegations of disruptive behavior are being reviewed. What is ‘disruptive’ is in the eye of the beholder. This subjectivity factor is certainly one of the concerns that sparked the JC Standard and the AMA Code of Conduct, both of which require hospitals to have processes in place to address allegations of ‘disruptive behavior.’
If the result of the process is an unfavorable peer review determination, it is unrealistic to expect a successful courtroom challenge given the qualified immunity afforded to hospitals under the Health Care Quality Improvement Act. HCQIA essentially provides a safe harbor for hospitals when the following requirements are satisfied. Fundamentally, the action must be taken:
1. in the reasonable belief that it was in the furtherance of quality healthcare;
2. after reasonable effort to obtain the facts of the matter;
3. after adequate notice and hearing procedures are afforded the physician involved, or after such other procedures as are fair to the physician under the circumstances; and
4. in a reasonable belief that the action was warranted by the facts known after reasonable effort to obtain the facts and after meeting the requirements of paragraph (3).
A hospital which satisfies these standards will be found immune from monetary damages, although not from claims for equitable relief. The standards are not difficult to satisfy and a legitimate concern has arisen that some hospitals, confident of immunity from monetary consequences, may engage in “sham” peer review against targeted physicians.
With the 2008 ruling in Poliner v. Texas Health System; reversing a substantial monetary award in favor of a physician and finding the health system immune from damages under HCQIA, the challenge of successfully contesting an adverse determination in court has become even more difficult. Poliner may be viewed as an exclamation point establishing what typically happens in courtroom peer review challenges: the hospital wins. The Court in Poliner noted that HCQIA presumes that a professional review action meets the standard for immunity unless rebutted by a preponderance of the evidence, and followed other circuits in holding that the “reasonableness” requirements of the HCQIA create an objective standard of performance and not a subjective good faith standard. This makes it extremely difficult to argue that a hospital has failed to satisfy criteria 1, 2,and 4 above. The only likely avenue for successfully challenging an adverse determination would be to show that adequate notice and hearing procedures, as required under the third criteria, were not provided. There have been some favorable post- Poliner decisions in this regard. Nevertheless, the chance of overturning an adverse peer review determination is so slim that it should be pursued only when there is no other recourse. The client should be advised that a court may award attorney fees and costs against a physician who loses a courtroom challenge to an adverse peer review decision. Rather than relying on the legal process to afford relief, physicians must be advised to try to minimize the risk of being subject to a peer review proceeding in the first place where allegations of disruptive behavior will be debated in a formal hearing.
What To Do?
If a confrontation occurs, the first proactive step must be an effort to diffuse it. Although both the JC and AMA models require that procedures be established to address disruptive behavior complaints, a smart physician will try to address the situation before a formal process begins. For example, consider the common incident in an operating room when harsh words are directed at a nurse. It is important to meet with the individual afterwards and discuss the matter, so that the physician can explain his or her frustration and why the language was used. In general, a physician should work to cultivate good relations with the nursing staff. It is typical, when there are allegations of “disruptive behavior,” for a hospital to approach nurses to see if they will provide supportive statements or testimony. Matters which occurred years ago will be dredged up in an effort to establish a “pattern” of disruptive behavior.
The same holds true with hospital executives. Some disruptive behavior cases stem from situations where a physician has strong feelings about decisions a hospital has made which may affect patient care. There is certainly nothing wrong with a physician expressing an opinion about a chosen course of action, but he or she must remember that the decision is one which will be made by the hospital. It is important for a physician to recognize that not all battles can be won, and some disruptive physician cases have arisen when a doctor persists in confronting hospital executives after a decision has been made final. Others have occurred when a physician has taken a hospital to task publicly, via television, radio or flyers.
If a formal review of any matter begins, a physician should retain counsel as soon as possible and not wait to see if a peer review hearing is scheduled. As noted above, the best way to challenge a peer review decision is to establish that the hospital failed to follow its notice and hearing procedures. Presumably, the failure of a hospital to follow its chosen “disruptive behavior”’ standard could be considered a lack of adequate notice or hearing rights for the physician. Indeed, depending on how far the hospital strays from its policy, it might be construed as a failure to make a reasonable effort to obtain the facts of the matter. A lawyer can provide a valuable service by building an appropriate record at the peer review hearing. Further, the lawyer can determine if there is any resolution the hospital will accept short of revocation of privileges, and explore whether that resolution may avoid a report to the National Practitioner Data Bank, which is mandated in any of several scenarios involving a restriction or revocation of medical staff privileges. If no resolution is possible, an aggressive effort must be made whenever warranted by the facts to establish that the conduct complained of did not inhibit the delivery of quality healthcare. That way, even if the hospital complies with all notice and hearing requirements, an argument can be made that the hospital is not entitled to HCQIA qualified immunity because the action against the physician was not taken “in the reasonable belief that it was in the furtherance of quality healthcare.”
If the administrative peer review process remains adverse to the doctor and a court challenge becomes necessary, consideration must be given to whether the lawsuit may be commenced in state or federal court. Various factors may influence the selection of a forum. Although this observation cannot be documented statistically, it is the author’s impression that state court judges may be more receptive to a finding that a hospital has failed to act “reasonably,” or has failed to provide a physician with adequate notice and hearing requirements. However, states where the peer review statutes make peer review documents non-discoverable, a federal action may be preferred because peer review documents may be discovered in federal court.
Whatever the venue, it is clear that these cases have become progressively difficult for physicians to win. All efforts must be taken to avoid being labeled a “disruptive physician.” The subjective evaluation of “disruptive” is difficult to defend and reversing an adverse peer review determination is a daunting challenge.
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