1. 1 Dealing with Disruptive or Impaired Practitioners Dealing with Disruptive or Impaired Practitioners Sponsored by Professional Renewal Center; co-sponsored by the Healthcare Liability and Litigation, Labor and Employment, and Physician Organizations Practice Groups Thursday, January 28, 2010  1:00-2:30 pm Eastern Thursday, January 28, 2010  1:00-2:30 pm Eastern Presenter: Shirley P. Morrigan, Esquire Foley & Lardner LLP Los Angeles, CA (213) 972-4668 smorrigan@foley.com smorrigan@foley.com

2. 2 An orthopedic surgeon falls asleep on his medical records An emergency room physician is found to have a cognitive disorder A family practice physician admits that she is being treated for opiate addiction An internist is blocked from entering a restroom at the hospital because it is being cleaned. He becomes angry, says "Don't you know who I am?" to a sanitation worker, and with his identification badge, cuts the lip of the sanitation worker Events

3. 3 A general surgeon says "I am really mad about the fact we are starting late" and kicks a hole in the wall of the operating room A urologist, when presented with what he considers a "sub-par" radiologic test, lifts the radiologist up in the air by his shirt collar, pins him against the wall, and says "If you ever do another bad quality x-ray, I will kill you." Events (cont’d)

4. 4 Practitioner? Administrator? Advocate? Whistleblower? What is a “Disruptive Physician?”

5. 5 Is “disruptive” purely a title that hospital administration applies to a practitioner who advocates for quality patient care? Some claim this is the case There are disruptive practitioners There are situations where the label is inappropriate Need for case-by-case analysis “Disruptive Practitioner”

6. 6 From the well-behaved “good citizen” who never speaks up Through the average individual who gets along with most people most of the time and occasionally does speak up when it is important to do it and does so respectfully To the person who has some problems containing her anger To the real “disruptive conduct problem” The Spectrum of Practitioner Conduct

7. 7 Throw surgical instruments in the operating room Throw coffee in an employee’s face Stalk an employee (DANGER: Contact Human Resources) Use foul language Invade another individual’s personal space The Disruptive Practitioner Can Do the Following (Actual Examples)

8. 8 Not answer calls from nurses in the middle of the night Refuse to talk to the family of a very sick patient Refuse to see her patient and write appropriate orders Refuse to work with a practitioner she does not like Refuse to the see a patient because he is the patient of a doctor he does not like The “Institutionally Disruptive” Practitioner Can

9. 9 This is one of the toughest problems confronting Medical Staff leadership today Disruptive practitioners may be excellent technicians It may be hard to talk to them They may have little insight into how they come across to others They may hire lawyers and become resistant instead of trying to understand “Disruptiveness”

10. 10 Must define in Code of Conduct The Medical Staff should define it  Through the Medical Executive Committee (MEC)  The MEC should canvas the Medical Staff Use examples (but allow flexibility) Send out to all practitioners  At time of adoption  With application  At reappointment What is Disruptive Conduct?

11. 11 Delivery of high-quality patient care depends on the ability of practitioners and hospital staff to:  Communicate well  Collaborate effectively  Work as a team Everyone in the hospital should be treated in a dignified and respectful manner at all times Why Have a Code of Conduct?

12. 12 Hospitals can require practitioners to sign the Code at the time of appointment or reappointment. The term “practitioner” includes physicians and Allied Health Professionals (AHPs) If a practitioner fails to sign the Code at appointment or reappointment, the Bylaws can provide that his or her application will be filed administratively incomplete Code of Conduct

13. 13 Practitioners agree to adhere to guidelines for five areas of conduct:  Respectful treatment  Language  Behavior  Confidentiality & feedback  Ethical responsibility Code of Conduct Sample

14. 14 Language, attitude, and appearance directly impact delivery of quality patient care All persons are to be treated in a respectful and dignified manner at all times:  Patients  Family members  Visitors  Other members of the care team When conflicts or lapses of decorum arise, practitioners must work with other members of the healthcare team to resolve the issue Respectful Treatment

15. 15 In all professional settings, practitioners avoid language which is:  Profane  Vulgar  Sexually suggestive or explicit  Intimidating  Degrading  Practitioners avoid the use of racial, ethnic, and/or religious slurs Language

16. 16 Practitioners refrain from intimidating or harassing behavior, including (but not limited to):  Unwanted touching  Sexually oriented or degrading jokes or conduct  Obscene gestures  Physically throwing objects (e.g., surgical instruments in the operating room, coffee in an employee’s face)  Making inappropriate comments about other physicians, AHPs, hospital staff members, or patients Behavior

17. 17 Practitioners must not be impaired by the use of any mood-altering substance, including alcohol, within the hospital or while on-call  Practitioners who engage in inappropriate or disruptive behavior may or may not be impaired Behavior (cont’d)

18. 18 As part of the 2009 Hospital Accreditation Standards, The Joint Commission (TJC) now requires hospitals to address disruptive behavior. TJC Standard Leadership (LD) 03.01.01 requires:  Element of Performance (EP) 4: The hospital has a code of conduct that defines acceptable, disruptive, and inappropriate behaviors  EP 5: Leaders create and implement a process for managing disruptive and inappropriate behaviors The Joint Commission: Requirements

19. 19 TJC also issued a July 9, 2008, “Sentinel Event Alert” with a list of suggestions on how to address disruptive behavior  These are suggestions, not requirements! A few noteworthy suggestions:  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… The Joint Commission: Suggestions

20. 20  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 Everyone should comply with the Code, no matter what his or her “rank” or status is The Joint Commission: Suggestions ( cont’d)

21. 21 More noteworthy TJC suggestions:  Develop and implement policies and procedures/processes appropriate for the organization that address 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 Apologies can help calm a tense situation, but they must be carefully worded to avoid admissions of guilt The Joint Commission: Suggestions (cont’d)

22. 22 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. 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…  The following Roadmap adheres to this philosophy of “progressive discipline.” The Joint Commission: Suggestions (cont’d)

23. 23 Conduct all interventions within the context of an organizational commitment to the health and well being of all staff, with adequate resources to support individuals whose behavior is caused or influenced by physical or mental health pathologies  All hospitals have a Practitioner Well-Being (or similar) Committee to support practitioners who have physical or mental health issues The Joint Commission: Suggestions (cont’d)

24. 24 Document all attempts to address intimidating and disruptive behaviors  Excellent advice!  Always document We discuss incident reports below The Joint Commission: Suggestions (cont’d)

25. 25 An example of a state law that applies to Medical Staff members, in addition to employees Prohibits retaliation against a Medical Staff member who has filed a complaint with a regulatory authority No Medical Staff leadership would do such a thing  Especially if they have good legal advice! California Legislation, AB 632 [Health and Safety Code Section 1278.5]

26. 26 Another part of the bill presumes retaliation if action is taken against a Medical Staff member within 120 days of the filing of a complaint Problem: The disruptive Medical Staff member may try to “protect” herself by filing a complaint every 120 days AB 632 (cont’d)

27. 27 Do not retaliate Keep track of complaints Act appropriately and quickly in response to complaints Document the response Consider writing an acknowledgment/response to the complaining Medical Staff member about her complaint AB 632: Solutions

28. 28 Nurses or other employees may file reports of “incidents,” or Incident Reports, on practitioners Incident Reports may sit on a desk of a charge nurse or risk management or even on the desk of the person who wants to file it for a length of time before they come to the attention of Medical Staff leadership  Incident Reports which allege disruptive conduct should be filed within 5 business days with Risk Management and Medical Staff Administration (MSA) They have historically only lived in the Risk Management Department If that is so, the practitioner’s conduct will never change! Incident Reports

29. 29 First, it can be an AHP or other person, so recommend using the word “practitioner” Second, the practitioner is usually not employed, and it is much harder to deal with these problems than it is with employees How to Address the Disruptive “Physician”

30. 30 Third: Consider state law on medical staff issues  “It also is settled that a physician may not be denied staff privileges because he or she is argumentative or has difficulty getting along with other physicians or hospital staff, when those traits do not relate to the quality of medical care the physician is able to provide.” Mileikowsky v. West Hills Hospital and Medical Center, 45 Cal. 4 th 1259, 1271 (2009). How to Address the Disruptive “Physician” (cont’d)

31. 31  To terminate a Medical Staff member in California, there must be a demonstrable nexus between ability to work with others and the effect of that ability on the quality of patient care provided. Miller v. Eisenhower Medical Center, 27 Cal. 3d 614, 628 (1980). How to Address the Disruptive “Physician” (cont’d)

32. 32  “… there is a danger that the requirement of temperamental unsuitability will be applied as a subterfuge where considerations having no relevance to fitness are present.” Rosner v. Eden Township Hospital District, 58 Cal. 2d 592, 598 (1962)  “The fact that a doctor…has been unable to get along with some doctors or hospital personnel is not a sufficient ground to exclude him from the use of hospitals.” Id. How to Address the Disruptive “Physician” (cont’d)

33. 33 And last, this is VERY difficult territory  Much of Medical Staff leadership’s time will be spent on a few “problems” How to Address the Disruptive “Physician” (cont’d)

34. 34 Medical Staff committee  Health Care Quality Improvement Act (HCQIA) immunity  Peer review  Professional suasion Hospital – only if Medical Staff will not act  Obligation to maintain environment free of harassment  No HCQIA immunity  Controversial Who Should Act on Disruptive Conduct? And Why?

35. 35 Jump on it quickly; do not allow them to pile up and then “dump” them on the practitioner Encourage people to file Incident Reports fast when they have a concern  Policy says they “shall” be filed within 5 days Counsel complaining parties to be objective and fact based in the Incident Reports Have an “Administrative Representative” (for example, a charge nurse for a nurse), interview the person who filed a report within 5 days Have the Administrative representative write a note to the file A Sample Road Map to Addressing Disruptive Practitioner Conduct

36. 36 What the Administrative Representative assesses  The credibility of the person who files an Incident Report should be assessed: Does the person have an “ax to grind?”  Is there more to the story than the person originally wrote?  Employees who file Incident Reports should be aware that they should be willing to speak with Medical Staff leadership about the Incident Report  Persons who file Incident Reports should know that they might even have to appear at a Medical Staff hearing to describe what they saw Road Map (cont’d)

37. 37 Once the Incident Report is deemed credible, based on reading the Incident Report and the Administrative representative’s note to file, a given person in the Medical Staff leadership (NOT the Chief of Staff) should interview the practitioner  In all cases, the practitioner should be notified within 10 days with a letter summarizing the complaint and a copy of the disruptive practitioner conduct policy No matter how many people have complained, or how many of the Medical Staff leadership know Dr. A is a problem, the Medical Staff leadership must never skip the interview of Dr. A Road Map (cont’d)

38. 38 Frequently there is more to the story, and we want to improve hospital processes if indicated, even if we heard it from a nasty person or in a nasty tone Road Map (cont’d)

39. 39 Once the Incident Report is confirmed as credible, and the Medical Staff leadership thinks it is dealing with a disruptive practitioner, Medical Staff leadership should engage in “progressive discipline” What is progressive discipline? Well, it is not starting with summary suspension! Road Map (cont’d)

40. 40 “Triggered by an event where the failure to suspend privileges may result in imminent danger to the health of an individual, including but not limited to patients or staff.” (NPDB-HIPDB Data Bank News, January 2010)  42 USC Section 11112(c)(2): standard in statute: “failure to take such an action may result in an imminent danger to the health of any individual.” More serious than other corrective action  Action precedes procedural rights  Should be undertaken only after serious thought and evaluation of the situation Summary Suspension

41. 41 Don’t just have one person confront the practitioner You have Department Chairs, Medical Directors, and the Well-Being Committee as resources before the matter has to come to the MEC Start low key, because it often takes these people many meetings and interventions to be convinced that their conduct must change Use entire committees, rather than just the chair, if the problem appears serious Several Hints for Effectiveness

42. 42 Have a call with the practitioner, and document the call Discuss the Incident Report or a detailed summary of it with the practitioner Redact the name of the person who filed it Often the practitioner will know who filed it WARN the practitioner that in no circumstances may she retaliate against the reporter First Incident Report

43. 43 Try to help the practitioner to acknowledge the problem and give concrete suggestions as to what conduct is better Ask the member to sign the Code of Conduct Write a specific letter to the member summarizing the discussion and expectations going forward First Incident Report (cont’d)

44. 44 On the second Incident Report, schedule a counseling session with two Medical Staff leaders present  Department Chair and Chief of Staff or designee(s) Show the person the Incident Report or a detailed summary of it Demonstrate the similarity, if there is some, between the first and second ones Be a bit more harsh in stating what kind of conduct is acceptable and what is not Second Incident Report

45. 45 Think about asking the practitioner to sign the Code of Conduct Tell the practitioner that she may be referred to the Practitioner Well-Being Committee if there are recurrences of disruptive conduct Again write the practitioner a specific letter, with possible consequences if the practitioner does not improve her conduct Second Incident Report (cont’d)

46. 46 On the third Incident Report, the Well-Being Committee shall meet with the practitioner Demonstrate the Medical Staff’s concern about the practitioner’s health Go over the three Incident Reports or detailed summaries of them Be specific about what is not working about the person’s conduct Third Incident Report

47. 47 Think about a contract Think about a consultation Anger management course? Psychological consultation? Medical evaluation? Tailor the intervention to the problem Again write a specific letter which specifies what conduct is acceptable and what is not Third Incident Report (cont’d)

48. 48 If the problems recur, may need referral to the MEC Whole MEC interviews the practitioner With the Incident Reports or detailed summaries of them in hand MEC assesses the problem, tries to get “buy-in” from the practitioner for improvement MEC evaluates the relationship of the conduct to patient care If there is an effect on patient care, may refer to the individual’s Department MEC writes a specific letter Third Incident Report (cont’d)

49. 49 We keep working on the practitioner’s conduct We take care not to decide to terminate membership without legal counsel input We hope for an acceptable resolution  Sometimes these folks move to a different hospital  Sometimes they deal with their problems and get better It is the most challenging Medical Staff issue today And Then …

50. 50 Dealing with Disruptive or Impaired Practitioners © 2010 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United States of America. Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association. “This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought”—from a declaration of the American Bar Association