Disruptive behavior and the law.

Hospitals and other health care entities have a duty to provide an environment where care can be delivered to patients in a safe and effective manner. Fulfilling this duty can be complicated, if not outright compromised, by a single physician whose disruptive actions divert energy, resources and attention away from patient care.

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The American Medical Association defines disruptive conduct as "personal conduct, whether verbal or physical, that affects or that potentially may affect patient care negatively." (1) According to the AMA, disruptive conduct "includes but is not limited to conduct that interferes with one's ability to work with other members of the health care team."

Interestingly, the disruptive physician is often described as bright, charismatic, charming and engaging. In the same breath, the disruptive physician is often described as controlling, tenacious, unpredictable, threatening and intimidating.

It is not uncommon for others in the community (including people who have been repeatedly victimized) to rate the disruptive physician as among the most competent in his or her specialty. These seemingly contradictory traits are probably one of the reasons the physician is able to continue engaging in unacceptable behavior for so long.

In an attempt to deal with problem behavior, many medical staffs adopt a code of conduct. It is helpful for the code of conduct to expressly state that all staff members "must treat others with respect, courtesy and dignity and conduct themselves in a professional and cooperative manner." The code of conduct should also identify the types of behaviors that are considered unacceptable.

Each institution has great latitude in setting its own standards of conduct. A well-defined code of conduct is one mechanism for communicating expectations about behavior. Medical staff and hospital leaders can refer to the code of conduct when concerns are raised about a physician's behavior.

Start with collegial intervention

Rarely does a single episode of inappropriate conduct result in action being taken against a physician. With a truly disruptive physician, leadership is more often faced with chronic complaints from employees, (2) other physicians, and even patients. Even then, meaningful action often does not occur until there is a significant event like the resignation of a key employee, an adverse clinical outcome or worse.

Although medical staff bylaws (and credentialing policies) contain an investigation process that can be used to address disruptive conduct, it is preferable to start with, and exhaust, less formal mechanisms first.

A progression from informal review to formal investigation helps establish a record that will reflect all of the various steps taken to resolve the inappropriate conduct before professional review action is imposed.

The first step in dealing with disruptive conduct should be collegial intervention. Collegial intervention involves medical staff or hospital leaders meeting with the physician in question and attempting to resolve the complaints that have been raised. The specifics of the collegial intervention, including who is involved, when and where it takes place, and the outcome, will all vary depending on the conduct at issue and how many other attempts have been made to get the physician to conform his or her behavior.

Early collegial intervention efforts might involve just the department chairperson and another staff leader. If these efforts are not successful, it is often helpful to include the vice president of medical affairs, the chief executive officer and maybe even the chair of the board.

The goals of collegial intervention are to:

1. Inform the physician of the nature of the concern raised

2. Explain what conduct is acceptable and what conduct is not (reference the code of conduct to help communicate this message)

3. Advise the physician of the consequences if concerns are raised and confirmed in the future

The outcome of collegial intervention might be a letter of guidance or counsel. If complaints continue to be received, the result of the collegial intervention might be a letter of warning or a letter of reprimand. Some bylaws or policies even allow for the imposition of a short-term suspension by medical staff or hospital leaders.

Another very effective tool in dealing with a disruptive physician is imposing specific conditions of practice. The conditions of practice become a personalized code of conduct for the disruptive physician and outline requirements that the physician must satisfy if he or she wishes to continue to exercise privileges at the hospital.

Adopt code of conduct

In drafting this personalized code of conduct it is important to be both very specific and all-encompassing. If the conditions are not explicit, this physician will likely take advantage of the vagueness. Restating the requirement to abide by all medical staff and hospital bylaws, policies, rules, regulations and procedures can be useful.

The conditions of practice should also put in place a mechanism for monitoring the physician's activities and should outline consequences if the physician fails to meet the required standards. This approach is effective because it defines, in clear and concise terms, what is expected of the physician and the consequences if these expectations are not satisfied.

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Another key element of the conditions of practice is to define the scope of any future hearing should there be a breach. The hearing should be limited to whether the conditions of practice were violated, not on the long-standing history or pattern of disruption that led to their imposition.

Limiting the scope of the hearing through the conditions of practice will make the hearing much more manageable. At the same time, the hearing will afford physicians an opportunity to demonstrate that they met the conditions.

Don't forget to document

It is imperative that any action taken against a disruptive physician be documented. Documentation is especially important since leaders of the medical staff are likely to change. Without documentation, there is no institutional memory of previous attempts to change the physician's behavior. The documentation should include:

* Date and time of the incident

* A factual description of the questionable behavior and circumstances that precipitated it

* Names of witnesses

* Consequences of the behavior as it relates to patient care or hospital operations

* Any action taken to remedy or intervene in the behavior

All documentation should be kept in a central place, typically the physician's credentials or quality file. The physician should have an opportunity to see any documentation that is created and to respond to it. A secret or private file creates both legal and practical problems and should be avoided.

The bad news about dealing with disruptive physicians is that they are more likely than any other physician to file a lawsuit against those involved in imposing the disciplinary action. The good news is that courts all around the country have recognized the authority of a hospital to take action against physicians for reasons related to inappropriate behavior.

Additionally, the Health Care Quality Improvement Act of 1986 provides substantial protection in the form of immunity to peer reviewers when professional review action "is based on the ... professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients.)"

In numerous cases, courts dismissed actions brought by physicians who had been subject to a suspension or restriction of privileges based on their behavior. (3) Even prior to the adoption of HCQIA, courts routinely upheld the decisions of hospitals to take disciplinary action against physicians based on bad conduct. (4)

As strong as the immunity under the HCQIA is, it is not absolute.

In Clark v. Columbia/HCA Infor. Services, Inc., 25 P.3d 215 (Nev. 2001), the Nevada Supreme Court refused to grant immunity, finding that the hospital's revocation of privileges was in retaliation for the physician's whistleblowing activity (the physician had written letters to the Joint Commission on Accreditation of Healthcare Organizations and the state board expressing concerns over quality of care).

This whistleblower defense is likely to be exploited by the disruptive physician, so it is imperative that medical staff and hospital leaders fully and carefully review all quality-of-care concerns, including those raised by the disruptive physician.

References:

1. AMA Code of Medical Ethics, E-9.045 Physicians with Disruptive Behavior.

2. In a study conducted by VHA West Coast, respondents saw a direct link between disruptive physician behavior and nurse satisfaction and retention. The survey also found that 92.5 percent of the respondents said that they had witnessed or experienced disruptive behavior by physicians. Cited most frequently was yelling, raising the voice, disrespect, condescension, berating colleagues or patients, and use of abusive language. Rosenstein AH. "Nurse-Physician Relationships: Impact on Nurse Satisfaction and Retention." American Journal of Nursing, June 2002.

3. See, e.g., Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461 (6th Cir. 2003); Wieters v. Roper Hosp., Inc., 58 Fed. Appx. 40 (4th Cir. 2003); Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (3d Cir. 1999); Wayne v. Genesis Med. Ctr., 140 F.3d 1145 (8th Cir. 1998); Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318 (11th Cir. 1994); Davenport v. Northeast Ga. Med. Ctr., 542 S.E.2d 525 (Ga. Ct. App. 2000); Manasra v. St. Francis Med. Ctr., 764 So.2d 295 (La. Ct. App. 2000); Bender v. Suburban Hosp., 758 A.2d 1090 (Md. Ct. Spec. App. 2000); Gordon v. Lewistown Hosp., 714 A.2d 539 (Pa. Cmwlth. Ct. 1998); Morgan v. Peace Health, Inc., 100 Wash. App. 1033 (Wash. Ct. App. 2000).

4. See, e.g., Oksanen v. Page Mem'l Hosp., 945 F.2d 696 (4th Cir. 1991); Siegel v. St. Vincent Charity Hosp. & Health Ctr., 520 N.E.2d 249 (Ohio Ct. App. 1987); Mahmoodian v. United Hosp. Ctr., Inc., 404 S.E.2d 750 (W. Va. 1991).

By Susan Lapenta, JD

Susan Lapenta, JD, is a partner with Horty, Springer and Mattern law firm in Pittsburgh, Pa. She can be reached at 412-687-7677 or [e-mail] Special thanks to Zachary Erwin for his assistance with this article.

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