1. 2014 Annual Risk Management Conference Best Practices in Physician Annual Reappointment, Performance Management and Disruptive Behaviour Cindy Clarke Partner, Health Law Group cclarke@blg.com

2. 2 Duty of the Hospital …a member of the public who knows the facts is entitled to expect that the hospital has picked its medical staff with great care, has checked out the credentials of every applicant, has caused the existing staff to make a recommendation in every individual case, makes no appointment for longer than one year at a time, and reviews the performance of its staff at regular intervals. Putting it is layman’s language, a prospective patient or his family who knew none of the facts, would think: “If I go to Scarborough General, I’ll get a good doctor.” Yepremian v. Scarborough General Hospital (1980 Ont. C.A.)

3. 3 Key Legal Concepts Legislation - Public Hospitals Act provisions related to the granting, suspending, terminating or substantially altering privileges Natural justice – fairness – a common law concept which requires the process for dealing with a complaint or concern must be fair What is fair depends on the circumstances

4. Best Practices Fairness means a right to be told what the concerns are and to have an opportunity to respond to them Failing to ensure the physician is treated ‘fairly’ will empower the physician / CMPA to challenge the hospital’s efforts to require the physician to address the issues 4

5. Best Practices Dealing with issues early and directly, gives the medical leadership the best opportunity to resolve the matter and the physician the fairest opportunity to respond Have the difficult conversations when issues arise! Document the difficult conversations 5

6. Best Practices If there is no discussion of the concern, the physician can deny ever being told of it. If physician can deny being told of the concern, the physician may not be held accountable for his actions (unless there is a serious sentinel event). Opens the door for suggestion of conduct for an ulterior motive. If discussion but no documentation of it, efforts to address concerns can turn into disputes as to exactly what was said by whom 6

7. Best Practices Most situations (incompetence or behaviour) involve escalating concerns over a period of time The longer the hospital/medical leadership tolerate the behaviour/substandard care, the more the hospital is demonstrating acquiescence or acceptance of the behaviour/quality of care Most often, the longer the issue has festered, the longer it takes to fairly and properly address the concern 7

8. Best Practices At the annual review, or whenever an incident of poor behaviour occurs, meet with the doctor. Tell the doctor in advance what propose to discuss Ask to hear the doctor’s perspective Tell the doctor what you expect to be done to remedy the situation Clearly articulate what the hospital considers to be acceptable and unacceptable 8

9. Best Practices Confirm the expectations of the physician in writing Monitor behaviour/performance to determine if activity that was required is/was in fact done If see positive behaviour, reward and acknowledge it; if see a repeat of the undesirable behaviour, act quickly to address it 9

10. Best Practices Remember – once the physician has privileges it is difficult to demonstrate they ought to be removed or restricted Physician has right to be heard by the MAC, the Hospital Board and by our judges in Court Hospital treatment of the physician will be as scrutinized as the physician’s conduct 10

11. Must Treat the Physician Fairly “The privileges were revoked in March 1989, when Dr. R had a month remaining on those privileges. His privileges had been renewed only two months earlier. There is nothing in the record to suggest that anything had changed between January, when the Board renewed those privileges, and March, when it revoked them. This about-face appears arbitrary and entirely unwarranted given that there was never any legitimate issue about Dr. R’s competence as a physician or the need to act to ensure the safety of his patients.” Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13 (CanLII) 11

12. Must Treat the Physician Fairly “….the manner in which Dr. R’s privileges were revoked also suggests bad faith. Dr. R’s privileges were terminated effective immediately and he was told to leave the Hospital at once. This conduct is difficult to understand in the face of Dr. R’s acknowledged competence, absent bad faith.” “…the Hospital’s ‘predominant purpose’ in revoking Dr. R’s privileges was to ‘resolve a perceived problem among specialists’. No doubt, the revocation solved the coverage dispute. However, in using its revocation powers for that purpose, the Board acted for an oblique and improper motive. Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13 (CanLII) 12

13. 13 Thank you! Cindy Clarke 416-367-6203 cclarke@blg.com