1 dealing with disruptive or impaired practitioners dealing with disruptive or impaired...

1

Dealing with Disruptive or Impaired Dealing with Disruptive or Impaired PractitionersPractitioners

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 Thursday, January 28, 2010 1:00-2:30 pm Eastern 1:00-2:30 pm Eastern

Presenter: Shirley P. Morrigan, Esquire

Foley & Lardner LLPLos Angeles, CA

(213) [email protected]

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

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

Practitioner? Administrator? Advocate? Whistleblower?

What is a “Disruptive Physician?”

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

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 ofPractitioner Conduct

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

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

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

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 adoptionWith applicationAt reappointment

What is Disruptive Conduct?

11

Delivery of high-quality patient care depends on the ability of practitioners and hospital staff to:Communicate wellCollaborate effectivelyWork 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

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

Practitioners agree to adhere to guidelines for five areas of conduct:Respectful treatmentLanguageBehaviorConfidentiality & feedbackEthical responsibility

Code of Conduct Sample

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:PatientsFamily membersVisitorsOther 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

In all professional settings, practitioners avoid language which is:ProfaneVulgarSexually suggestive or explicit IntimidatingDegradingPractitioners avoid the use of racial, ethnic,

and/or religious slurs

Language

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

Practitioners must not be impaired by the use of any mood-altering substance, including alcohol, within the hospital or while on-callPractitioners who engage in inappropriate or

disruptive behavior may or may not be impaired

Behavior (cont’d)

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

TJC also issued a July 9, 2008, “Sentinel Event Alert” with a list of suggestions on how to address disruptive behaviorThese 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

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

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


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.”


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 pathologiesAll hospitals have a Practitioner Well-Being

(or similar) Committee to support practitioners who have physical or mental health issues


24

Document all attempts to address intimidating and disruptive behaviorsExcellent advice!Always document

We discuss incident reports below


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 thingEspecially if they have good legal advice!

California Legislation, AB 632[Health and Safety Code Section 1278.5]

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

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

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

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

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. 4th 1259, 1271 (2009).

How to Address the Disruptive “Physician” (cont’d)

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).


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.


33

And last, this is VERY difficult territoryMuch of Medical Staff leadership’s

time will be spent on a few “problems”


34

Medical Staff committeeHealth Care Quality Improvement Act

(HCQIA) immunity Peer reviewProfessional suasion

Hospital – only if Medical Staff will not actObligation to maintain environment free of

harassmentNo HCQIA immunityControversial

Who Should Act on Disruptive Conduct? And Why?

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

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

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

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

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

“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

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

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

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

On the second Incident Report, schedule a counseling session with two Medical Staff leaders presentDepartment 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

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

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

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

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

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

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

1 dealing with disruptive or impaired practitioners dealing with disruptive or impaired...

Documents