1. www.healthcaregcinstitute.com Disruptive Physicians: A Roadmap to Avoid Dangerous Behavior January 18, 2012 Steven R. Smith & Sarah E. Swank

2. www.healthcaregcinstitute.com 2 Welcome Today’s speakers Ober|Kaler Health Care General Counsel webinars Overview of the topic Discussion Questions

3. www.healthcaregcinstitute.com 3 Meet Today’s Speakers Steve and Sarah are cofounders of the Ober|Kaler Health Care General Counsel Institute. Join us on LinkedIn: Ober|Kaler Health Care General Counsel Institute Group Sarah E. Swank Principal, Ober|Kaler seswank@ober.com | 202.326.5003 Speaker Steven R. Smith Principal, Ober|Kaler ssmith@ober.com | 202.326.5006 Moderator

4. www.healthcaregcinstitute.com 4 Webinar Housekeeping Slides are located in the left hand corner to download Type your questions into the question window at any time. We will answer them at the end of the program Webinar slides and audio replay are available at www.healthcaregcinstitute.com Brief evaluation (6 questions) will be emailed to you after this program

5. www.healthcaregcinstitute.com 5 Physician-Hospital Relationships Series Part 1: Courting Physicians: Pros and Cons of Six Integration Models Part 2: Physician Contracting and Compliance: To Disclose or Not to Disclose Part 3: Disruptive Physicians: A Roadmap to Avoid Dangerous Behavior Visit www.healthcaregcinstitute.com for slides and recordings.

6. www.healthcaregcinstitute.com 6 Upcoming Webinars Telemedicine: Strengths, Weaknesses, Opportunities and Threats – March 21, 2012 You and your career – Spring 2012

7. www.healthcaregcinstitute.com 7 Today’s Discussion What is disruptive behavior? Why should we care? How do we prevent it? We have a problem, now what?

8. www.healthcaregcinstitute.com 8 Practice Settings Hospital Physician office Long term care Telemedicine

9. www.healthcaregcinstitute.com 9 What is Disruptive Behavior? Verbal abuse, intimidation, demeaning comments and emotional outbursts? Threats of violence, termination or lawsuit? Inappropriate physical contact, throwing objects, refusal to respond to pages? Abuse over the telephone and other similar conduct?

10. www.healthcaregcinstitute.com 10 Disruptive Behavior... Let’s start with two clear examples: –Assault: Yes or No –Rude: Yes or No

11. www.healthcaregcinstitute.com 11 Now, your turn... Question 1 Is this disruptive behavior? – Yes or No –Dr. Mad was upset he could not get into the OR. He broke a telephone, shattered the glass on a copy machine, shoved a metal cart into the doors of the operating suite, threw jelly beans down the hallway in the surgical suite, flung a medical chart to the ground, and verbally abused a nurse manager.

12. www.healthcaregcinstitute.com 12 Question 2 Is this disruptive behavior? – Yes or No –At a regularly scheduled surgical support services meeting, Dr. Yellsalot, chief of surgery, has heated words with Mr. Yellsback, Director of Support Services, over a new policy about OR availability. Ms. Frighten, the Director’s assistant, witnesses the argument. The argument quickly escalates. Mr. Yellsback reports to the Hospital President that Dr. Yellsalot raised his voice, slammed charts on the table, grabbed a chair and threw it and demanded that Mr. Yellsback stay at the meeting when he wanted to leave. Ms. Frighten corroborates the story and even begins to cry when questioned by the Hospital President and HR. –Ten days prior this meeting, Dr. Yellsalot and 50 other members of the surgery department put in a memo about the management of the Surgical Services Department by Mr. Yellsback.

13. www.healthcaregcinstitute.com 13 Question 3 Is this disruptive behavior? – Yes or No –Dr. Pottymouth used sexually explicit and offensive language during a psych consult of a female patient. –A second female patient complains of this behavior to a caseworker who is following up after the patient is discharged from the hospital.

14. www.healthcaregcinstitute.com 14 Question 4 Is this disruptive behavior? – Yes or No –Dr. Whistleblower is a surgeon employed by a hospital. She is vocal about care provided by Dr. Notsogood and reported this to the head of her department. Patients and other physicians found Dr. Whistleblower negative and confrontational. The head of the department requested an ad hoc committee be appointed to determine whether Dr. Whistleblower is disruptive. The committee recommended Dr. Whistleblower attend anger management classes or face further discipline.

15. www.healthcaregcinstitute.com 15 Question 5 Is this disruptive behavior? – Yes or No –Physician receives a notice from the credentials committee that he loses his temper, uses profane language and acts disruptively. No names and dates related to the incidents were included until the physician requests them.

16. www.healthcaregcinstitute.com 16 What is disruptive behavior? What about disruptive nurses? Disruptive executives? Disruptive lawyers?

17. www.healthcaregcinstitute.com 17 Past Barriers Brings in a lot of money “Surgeons will be surgeons” Special relationship with hospital administration Affiliated with a powerful physician group Donates a lot of money Otherwise a good doctor and a “nice” guy Just had a “bad” day We used to be able to ________ [fill in the blank] The “slap on the wrist” approach

18. www.healthcaregcinstitute.com 18 Past Barriers Are past barriers still current barriers?

19. www.healthcaregcinstitute.com 19 The Joint Commission (TJC) Applies to: Accredited health care organizations Effective: January 1, 2009 Requires: Policies and procedures to address disruptive physician behavior in the workplace Standards: Leadership LD.03.01.01 Sentinel Event Alert 2008: Dangers of behavior Sentinel Event Alert 2009: Culture of safety, Board and patient involvement

20. www.healthcaregcinstitute.com 20 The Joint Commission (TJC) Joint Commission Standard LD.03.01.01 –EP 4: Code of conduct that defines acceptable and disruptive and inappropriate behaviors –EP 5: Create a process for managing disruptive and inappropriate behaviors

21. www.healthcaregcinstitute.com 21 The Joint Commission (TJC) Did not define unacceptable or disruptive behavior

22. www.healthcaregcinstitute.com 22 The American Medical Association (AMA) “Behaviors That Undermine Safety” Policy H-225.956 Medical staffs to develop and implement their own code of conduct in the medical staff bylaws Hospitals have a code of conduct applicable to members of the board, management and all employees

23. www.healthcaregcinstitute.com 23 The American Medical Association (AMA) Appropriate Behavior Definition –Any reasonable conduct to advocate for patients –To recommend improvements in patient care, to participate in the operations, leadership or activities of the organized medical staff –To engage in professional practice including practice that may be in competition with the hospital –Criticism that is offered in good faith with the aim of improving patient care should not be construed as disruptive behavior

24. www.healthcaregcinstitute.com 24 The American Medical Association (AMA) Disruptive Behavior Definition –Chronic or habitual pattern of behavior that creates a hostile environment, the effects of which have serious implications on the quality of patient care and patient safety –Any abusive conduct including sexual or other forms of harassment, or other forms of verbal or nonverbal conduct that harms or intimidates others to the extent that quality of care or patient safety could be compromised. –Personal conduct, whether verbal or physical, that affects or that potentially may affect patient care negatively

25. www.healthcaregcinstitute.com 25 The American Medical Association (AMA) Sexual or Other Harassment Definition –Conduct toward others based on their race, religion, sex, sexual identity or orientation, nationality or ethnicity, physical or mental disability, or marital status which has the purpose or direct effect of unreasonably interfering with a person’s work performance or which creates an offensive, intimidating or otherwise hostile work environment

26. www.healthcaregcinstitute.com 26 The American Medical Association (AMA) Sexual or Other Harassment Definition (con’t) –Sexual harassment includes unwelcome verbal or physical conduct of a sexual or gender-based nature which may include Verbal harassment (such as epithets, derogatory comments or slurs) Physical harassment (such as unwelcome touching, assault, or interference with movement or work) Visual harassment (such as the display of derogatory cartoons, drawings or posters) –Sexual harassment includes conduct that creates and/or perpetrates an intimidating, hostile, or offensive environment

27. www.healthcaregcinstitute.com 27 The American Medical Association (AMA) Inappropriate Behavior Definition –Conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive –Persistent, repeated inappropriate behavior can become a form of harassment and become disruptive, and subject to treatment as “disruptive behavior”

28. www.healthcaregcinstitute.com 28 The American Medical Association (AMA) Medical staff members cannot be subject to discipline for appropriate behavior. Examples of appropriate behavior: –Advocacy on patient care matters –Recommendations or criticism communicated in a reasonable manner and offered in good faith with the aim of improving patient care and safety –Encouraging clear communication –Expressions of concern about a patient’s care and safety –Expressions of dissatisfaction with policies through appropriate grievance channels or other civil non-personal means of communication

29. www.healthcaregcinstitute.com 29 The American Medical Association (AMA) Examples of appropriate behavior (con’t): –Use of cooperative approach to problem resolution –Constructive criticism conveyed in a respectful and professional manner, without blame or shame for adverse outcomes –Professional comments to any professional, managerial, supervisory, or administrative staff, or members of the Board of Directors about patient care or safety provided by others –Fulfilling duties of medical staff membership or leadership –Active participation in medical staff and hospital meetings (i.e., comments made during or resulting from such meetings can not be used as the basis for a complaint under this Code of Conduct, referral to the Health and Wellbeing Committee, economic sanctions, or the filing of an action before a state or federal agency)

30. www.healthcaregcinstitute.com 30 The American Medical Association (AMA) Examples of appropriate behavior (con’t): –Exercising rights granted under the medical staff bylaws, rules and regulations or policies –Engaging in legitimate business activities, while being mindful of contractual commitments –Membership on other medical staffs –Seeking legal advice or the initiation of legal action for cause

31. www.healthcaregcinstitute.com 31 The American Medical Association (AMA) Inappropriate behavior by medical staff members is discouraged. Persistent inappropriate behavior can become a form of harassment and become disruptive, and subject to treatment as “disruptive behavior.”

32. www.healthcaregcinstitute.com 32 The American Medical Association (AMA) Examples of inappropriate behavior: –Belittling or berating statements –Name calling –Use of profanity –Inappropriate comments written in the medical record –Blatant failure to respond to patient care needs or staff requests –Deliberate lack of cooperation without good cause –Deliberate refusal to return phone calls, pages, or other messages concerning patient care or safety –Intentionally degrading or demeaning comments regarding patients and their families, or nurses, physicians, hospital personnel and/or the hospital

33. www.healthcaregcinstitute.com 33 The American Medical Association (AMA) Disruptive behavior by medical staff members is prohibited Examples of disruptive behavior: –Physical or verbal intimidation or challenge, including disseminating threats or pushing, grabbing or striking another person involved in the hospital –Physically threatening language directed at anyone in the hospital including physicians, nurses, other medical staff members, or any hospital employee, administrator or member of the Board of Directors –Physical contact with another individual that is threatening or intimidating –Throwing instruments, charts or other things –Threats of violence or retribution –Sexual or other forms of harassment including persistent inappropriate behavior and repeated threats of litigation

34. www.healthcaregcinstitute.com 34 The American Medical Association (AMA) Interventions –Non-adversarial in nature, if possible, with the focus on restoring trust, placing accountability on and rehabilitating the offending medical staff member, and protecting patient care and safety –Tiered, starting with informal discussion of the matter with the appropriate section chief or department chairperson –Further interventions can include: Apology directly addressing the problem Letter of admonition Final written warning, or corrective action pursuant to the medical staff bylaws –Summary suspension - presents an imminent danger to the health of any individual –Rehabilitation may be recommended at any time –Behavior is due to illness or impairment, the matter may be evaluated and managed confidentially according to the established procedures of the medical staff’s Health Committee

35. www.healthcaregcinstitute.com 35 The American Medical Association (AMA) Procedure –Complaints about a member of the medical staff in writing, signed –Directed to the President of the medical staff, or VP if President is the subject of the complaint –Complaints contain: Dates, times and location Description Circumstances which precipitated the incident Name and medical record number of any patient or patient’s family member who was involved in or witnessed the incident Names of other witnesses to the incident Consequences, if any, of the inappropriate or disruptive behavior as it relates to patient care or safety, or hospital personnel or operations Any action taken to intervene in, or remedy, the incident, including the names of those intervening

36. www.healthcaregcinstitute.com 36 The American Medical Association (AMA) Procedure (Cont’d) –Acknowledge complaint –Notify physician –Create an ad hoc committee –Document resolution

37. www.healthcaregcinstitute.com 37 The American Medical Association (AMA) Behavior directed at a Medical Staff Member –Reported by the medical staff member to the hospital under hospital policy or code of conduct –Directly to the hospital governing board –State or Federal government –Relevant accrediting body

38. www.healthcaregcinstitute.com 38 The American Medical Association (AMA) Abuse of Process –No threats, retaliation or corrective action –False claims subject to discipline under bylaws or HR policies AMA and Physician Concerns –Targeting of outspoken physicians –Vague policies cover a broad range of behaviors –Political or economic decisions

39. www.healthcaregcinstitute.com 39 State Board of Physicians Investigate behavioral complaints Reporting requirements

40. www.healthcaregcinstitute.com 40 Why should we care? Communication Team effectiveness Quality Medical staff issues Employee issues Patient satisfaction Malpractice Staff morale and turnover; employee satisfaction

41. www.healthcaregcinstitute.com 41 Why should we care? A survey of more than 4,500 physicians, nurses and other health professionals at about 100 community hospitals Respondents who believe disruptive behavior is linked to: –Staff dissatisfaction: 75% –Detrimental effects on quality: 72% –Medical errors: 71% –Adverse events: 66% –Compromises in patient safety: 53% –Patient mortality: 25% “Managing Disruptive Physician Behavior: Impact on Staff Relationships and Patient Care,” Neurology, April 22, 2008

42. www.healthcaregcinstitute.com 42 Why should we care? Respondents who said they witnessed disruptive behavior by: –General surgeons: 31% –Cardiovascular surgeons: 21% –Neurosurgeons: 15% –Orthopedic surgeons: 7% –Cardiologists: 7% –Ob-gyns: 6% –Gastroenterologists: 4% –Neurologists: 4% “Managing Disruptive Physician Behavior: Impact on Staff Relationships and Patient Care,” Neurology, April 22, 2008

43. www.healthcaregcinstitute.com 43 How do You Prevent It? Code of conduct, and the process for managing disruptive behaviors, should be incorporated into the Medical Staff Bylaws Why? –The M/S is the body with “jurisdiction” over all the physicians –The M/S already has the “back end” of the process (corrective action and hearings) needed to effectively handle complaints

44. www.healthcaregcinstitute.com 44 Preventing Problems… Code of conduct should establish a baseline through a policy statement as to what the expected norm will be Example baseline policy statement: –The essential elements needed for safe and effective patient care include uninhibited communication, collaboration and a collegial work environment –As a result, members of the M/S shall treat each other, and all other persons in the hospital, with respect and act cooperatively, professionally and with the needs of the patient first at all times

45. www.healthcaregcinstitute.com 45 Preventing Problems… What does this accomplish? –It establishes the agreed upon foundation that communication, collaboration and collegiality are essential for good patient care –If disruptive conduct becomes an issue, these foundational elements are matters that do not need to be proven because they are a part of the M/S Bylaws and policy

46. www.healthcaregcinstitute.com 46 Preventing Problems… What does this accomplish? –Since all agree that communication, collaboration and collegiality are essential elements of good patient care then they have to be put into action –The action required is that members of the M/S must: Treat everyone with respect and Act cooperatively, professionally and with the needs of the patient first at all times

47. www.healthcaregcinstitute.com 47 Preventing Problems… Still need a process for dealing with the physician who is non-compliant Recommend a single committee be assigned responsibility for initially dealing with all complaints of disruptive behavior Reporting and documenting all complaints IMPORTANT that administration support employees/others that complain –Failure to do so will eliminate reporting, choke off communication and hurt patient care

48. www.healthcaregcinstitute.com 48 Preventing Problems… Committee will: –Investigate complaints –Meet with physician for education and collegial efforts to resolve –Be empowered to send letters of guidance, warning or reprimand –Ensure no retaliation by physician –Make all efforts to resolve at this level

49. www.healthcaregcinstitute.com 49 Preventing Problems… Repeat offenders and serious complaints get referred by the Committee to the MEC for corrective action Provides a direct linkage between the collegial process established and the formal corrective action process of the M/S Bylaws

50. www.healthcaregcinstitute.com 50 Preventing Problems… Policy statement, required action and process are in place Next step is to educate the M/S on what this means, what is required of them and what will happen if they do not comply Many ways to do this – publications, online resources, meetings, etc.

51. www.healthcaregcinstitute.com 51 Preventing Problems… Helpful to have counsel present examples of disruptive conduct that have gone through the court system Helps to bring the message home Experienced counsel is there to answer questions Goal is compliance by physicians

52. www.healthcaregcinstitute.com 52 You Have a Problem, Now What? Employed Physicians Read the employment contract (which hopefully is in the personnel file) Remedy should be in the contract as well Subject to Medical Staff Bylaws, policies and procedures Subject to HR policies Employed physicians are employees

53. www.healthcaregcinstitute.com 53 Problem... Independent Physicians Read the contract –Especially hospital-based contracts –Contract may provide a specific remedy or disruptive conduct may be a condition of default –Replacement of physician Follow the Bylaws and Credential manual Due process rights

54. www.healthcaregcinstitute.com 54 Problem... Look to M/S Bylaws for the policy and process established –Refer to Committee for review and recommendations –Administration will be present as the representative of the complainant What is the extent of the disruptive behavior? First, second or multiple offense? Physical confrontation? Actual patient, employee or other harm? Potential harm? Imminent danger?

55. www.healthcaregcinstitute.com 55 Problem… Assuming that the problem is egregious or does not qualify for collegial (e.g., counseling, warning and/or meetings) action Referral to the Medical Staff Corrective Action process If imminent danger of harm then summary or precautionary suspension may be required

56. www.healthcaregcinstitute.com 56 Problem… Normal fair hearing and due process provide prior notice and right to a hearing before any action taken that may adversely affect privileges Summary/precautionary suspension reverses this –Suspension is implemented immediately –Notice/hearing provided after adverse action taken –This is an extraordinary action because of immediate adverse impact on physician –Justified because of the interest in protecting against imminent danger to health or safety of a person

57. www.healthcaregcinstitute.com 57 Problem… Summary/precautionary suspension –Look to the M/S Bylaws for when appropriate –Should be used only when necessary to prevent imminent danger to the health or safety of an individual –When used, time for hearings and process generally sped up to minimize burden on physician who remains suspended during hearing

58. www.healthcaregcinstitute.com 58 Investigation Bylaws for each hospital will be somewhat unique Typically, the MEC must vote to commence an investigation Important because resignation by a physician while an investigation is pending is reportable to NPDB Physician under investigation entitled to notice of investigation

59. www.healthcaregcinstitute.com 59 Investigation An investigative committee should be appointed –Usually these are members of the MEC –Must be persons who have not had any other participation in the process Usually physicians Can include persons other than physicians –Staff should also be appointed to assist the physician members of the investigative committee Important for documenting interviews/meetings and reports Retention of documents and work papers of the investigative committee

60. www.healthcaregcinstitute.com 60 Investigation Investigation must be complete and objective –Interview all witnesses –Interview the subject physician – this is not a hearing and the physician does not have the right to counsel –Review all policies and relevant documents Including medical staff file of physician if this is a recurring course of conduct for the physician –The issue is the disruptive conduct of the physician that has been questioned NOT the underlying causes or issues on which the conduct may have been focused –Conduct investigation within designated time period and submit timely report

61. www.healthcaregcinstitute.com 61 Investigation Investigation is a confidential proceeding All members and staff must treat it as such Discussions restricted to meetings of the investigative committee The committee does not meet in the medical staff lounge, in the lobby of the executive offices, etc. The reputation of the physician is very important and the hospital can be held responsible for defaming the physician if appropriate care is not taken Copies of the committee’s report should be numbered and tracked when they are handed out

62. www.healthcaregcinstitute.com 62 Investigation The investigative committee report is typically submitted to the MEC The report consists of a recommended set of findings of fact and may include a recommended sanction MEC is free to accept, reject or modify the report; however, must be careful regarding the factual findings because it has no base of knowledge of facts other than the investigative report

63. www.healthcaregcinstitute.com 63 Investigation Recommendation that does not entitle the physician to request a hearing takes effect immediately unless modified by Board of Directors Recommendation that would entitle a physician to a hearing is one that would adversely affect (reduce, restrict, deny, suspend, revoke or fail to renew) the physician’s clinical privileges or membership on the Medical Staff Hospital President or other officer of the hospital is usually responsible under the Medical Staff Bylaws with providing the physician with official notice (“Notice of Action”) of the final recommendation of the MEC

64. www.healthcaregcinstitute.com 64 Investigation Tips Gut check on the “evidence” Lumped in similar deficient medical record signoffs How do the nurses feel? Keeping everything confidential Document, Document, Document

65. www.healthcaregcinstitute.com 65 Investigation/Hearing The Notice of Action will describe the action taken, the reasons for the action taken, whether the physician has a right to request a hearing, the time within which a hearing must be requested, and a summary of the physician’s rights in any hearing –HCQIA requirements Usually have not less than 30 days within which to request a hearing Could be shorter period of time if the physician has been suspended

66. www.healthcaregcinstitute.com 66 Hearing If physician makes a timely request for hearing then he/she must be given notice stating: –the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice and –a list of the witnesses (if any) expected to testify at the hearing on behalf of the MEC of hospital If physician fails to make a timely request for a hearing then he/she forfeits the right to a hearing

67. www.healthcaregcinstitute.com 67 Hearing Medical Staff Bylaws provide for how a hearing is to be conducted The hearing is usually before a panel of Medical Staff members –A hearing officer is typically appointed to run the hearing, rule on motions, and assist in drafting the decision of the panel − but does not have a vote –Hearing officer is a health care attorney with no prior exposure to the hospital or the physician –Hearing officer appointed by hospital – Best practice is to ask counsel for physician if there are any objections to selection before finalizing

68. www.healthcaregcinstitute.com 68 Hearing Physician has the right: –To counsel –To have a record made of the proceedings –To call, examine, and cross-examine witnesses –To present evidence determined to be relevant by the hearing officer –To submit a written statement at the close of the hearing

69. www.healthcaregcinstitute.com 69 Hearing On completion of hearing, physician has the right: –To receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations –To receive a written decision of the health care entity, including a statement of the basis for the decision

70. www.healthcaregcinstitute.com 70 Hearing Must support those who file complaint and witnesses Physicians will be unhappy and will make others unhappy Be sure of case before proceeding to be fair to all involved Do not allow “push-back” once case starts If you start and fall to pressure from physician you will never be effective in this area There will be pain and threats before the larger M/S accepts that the hospital is serious

71. www.healthcaregcinstitute.com 71 Hearing Tips Causes anxiety for everyone Pick the right hearing officer Pick the right person to represent you Board appeals –Determine if separate representation is needed –Walk the Board through the process

72. www.healthcaregcinstitute.com 72 Reporting Requirements Report according to legal obligation to do so –NPDB –State law reports? Watch out for persons trying to “settle a score” –Reporting matters that do not need to be reported –Including an overly broad description of the conduct that led to the action being reported An incorrect report can be defamatory Create safeguards in policy for who creates the report and who has to have the final sign-off before the report can be issued

73. www.healthcaregcinstitute.com 73 Reporting Tips Be consistent with reporting Stick to the legal requirements Educate executives and MEC on reporting requirements prior to an issue Facilitating actual (timely) report

74. www.healthcaregcinstitute.com 74 Lawsuits Hospitals should win lawsuits with physicians regarding discipline matters The key for the hospital is whether it has followed its own policies and the M/S Bylaws process for fair hearings HCQIA – Hospitals and persons participating in peer review are immune from monetary damages if the review process outlined in HCQIA (discussed earlier in this webinar) is followed

75. www.healthcaregcinstitute.com 75 Lawsuit Tips Insurance issues Joint representation Pick the right counsel Keeping everyone’s eye on the ball Wary medical staff members

76. www.healthcaregcinstitute.com 76 Questions

77. www.healthcaregcinstitute.com 77 More questions? Contact us. Sarah E. Swank Principal, Ober|Kaler seswank@ober.com | 202.326.5003 Steven R. Smith Principal, Ober|Kaler ssmith@ober.com | 202.326.5006 Steve and Sarah are cofounders of the Ober|Kaler Health Care General Counsel Institute. Join us on LinkedIn: Ober|Kaler Health Care General Counsel Institute Group