Are you a "Disruptive Physician"? Protect yourself.
Are You the "Disruptive Physician"? How to protect yourself.
What is disruptive behavior and why are more cases of disruptive physician behavior being reported now?
No physician wants to be labeled as a diisruptive physician. More importantly, this label can have serious, career ending implications for the physician. The Joint Commission says that disruptive behavior “undermines a culture of safety and interferes with quality patient care.”
Disruptive behavior includes, sexual harassment, personal attacks on medical staff members or hospital employees, abusive or profane language, physical assault, harsh criticism that implies stupidity or incompetence, threats, inappropriate medical record entries regarding quality of care, public criticism or defamation. Disruptive behavior may apply to refusing to accept medical staff assignment of uninsured patients, untimely chart signing, imposing unachievable requirements upon nursing staff, etc.
The spectrum ranges from the obvious to the not so obvious. For instance, why is expressing public criticism not just viewed as freedom of speech? Sometimes the term disruptive is nebulous, something like the term obscene (“I know it when I see it”)[1]. Does disruptive behavior apply to conduct where the physician is in competition with the hospital?[2] Is it inconceivable that a hospital in competition with a physician for medical services, moves to characterize that physician as disruptive as a means to eliminate competition?
As the term can be nebulous, it can be applied arbitrarily. However, the Joint Commission has stated their position in 2008[3] that there should be “Zero Tolerance” for disruptive behavior. According to the Joint Commission manual, LD 03.10.01 EP 4, “Leaders (must) develop a code of conduct that defines acceptable, disruptive, and inappropriate behavior.” Most medical bylaws have incorporated this Joint Commission mandate delineating the way the medical staff will handle and process physicians exhibiting disruptive or inappropriate behavior. In response to an American College of Physician Executive survey[4] finding that 38.9% of respondents agreed that physicians who generate high amounts of revenue for their hospital are treated more leniently when it comes to behavior problems than those who bring in less revenue, the Joint Commission Standards and Guidance policy called for a code of conduct to be enforced by the medical staff that was equitable and consistently applied, regardless of seniority or clinical discipline of the disruptive physician.
Being labeled a disruptive physician can end a physician’s career. However, even a physician who voices concerns about quality of care may be labeled “disruptive” by the hospital with which he affiliates. The term has such devastating consequences that it is sometimes instead referred to as unprofessional behavior. Disruptive behavior may merely be the consequence of a physician being reasonably frustrated with circumstances that have not been adequately communicated to the party that seeks to label the behavior as disruptive. Therefore, before the term is applied to a physician, the circumstances leading to or causing the behavior should be investigated and understood. The problem should be considered from the target physician’s point of view and the triggers leading to the behavior understood.
The number one cause of conflict leading to disruptive behavior is lack of acknowledgment of a physician complaint. If the physician has voiced a concern and he feels he has not been heard, he will simply scream loader, raising tension to a higher level. This will continue unless an intervention occurs to prevent further escalation of tension. Another contributing factor is financial strain. With financial downturn for physicians through payment reform, physicians are increasingly under financial strain and this can lead to “burnout” and behavioral problems. Substance abuse is typically an uncommon cause of disruptive for physicians but is one that may exist. Physicians with an alcohol problem typically know how to deal with it so that it does not interfere with their ability to perform in the workplace. However, even physicians with personality disorders can modify their behavior through psychological counseling and intervention. Finally, there is much more reporting of disruptive behavior now, compared to the past, because the Joint Commission has stated their “Zero Tolerance” position on the matter, creating greater awareness of this potential problem in healthcare. Greater awareness of the problem results in more cases being reported by nurses, patients, or other hospital personnel.
When disruptive behavior is believed to pose a danger to patient safety, the matter will typically be earmarked for immediate action and referred to a designated person or committee defined in the medical bylaws. This may be the President of the Medical Staff, the CEO, or to Risk management. A similar response will occur in face to an allegation of sexual harassment. Those in charge will typically attempt to document the matter for the purpose of using documentation to establish whether the behavior represents a single incidence vs a pattern of behavior. Legal counsel for the hospital will recommend detailed documentation to create a paper trail of evidence, encouraging physician leaders to memorialize deviations from the Code of Conduct requirements in the medical bylaws. Hospital counsel will encourage documentation to establish the date and time of the infraction, notation as to whether the disruptive behavior negatively impacted patient care, reference to the circumstances that precipitated the event, a description of the disruptive behavior, and the action taken to remedy the situation.
The scope of intervention available can consist of
(1) informal counseling over a cup of coffee by the chief of staff, simply letting the target physician know of a potential problem. This type of intervention is appropriate upon the happening of the first incident. It consists of a verbal warning or coaching. Perhaps suggesting engagement in an anger management programs focusing on the trigger leading to the disruptive behavior, is enough.
(2) A higher level of intervention is referred to as awareness intervention, perhaps instituted through requiring the target physician to engage in educational seminars on what types of behavior are unacceptable. The event is memorialized and document by the medical staff.
(3) Next, authority intervention involves application of medical bylaws proceedings to review the alleged behavior. A written warning is provided to the disruptive physician along with a rehabilitation plan, perhaps mandatory participation with state program[5]. This is likely to be the final warning to the physician.
Finally, (4) disciplinary intervention can result in a loss of medical staff privileges[6]. This level of intervention triggers due process protections for the target physician through a fair hearing process.
Over the recent past months, I was engaged in what might have been considered disruptive behavior. I am affiliated with a for-profit hospital that has a terrible electronic medical health record system (EHR) and computerized provider order entry (CPOE) system. By unanimous vote, the members of the medical staff, led by me, attempted to petition the hospital administration’s mandate to use the system, citing patient safety concerns. The CPOE was prone to order entry errors and the template driven EHR system was so inadequate that users were unable to efficiently document essential medical information for use by subsequent providers. The hospital’s only concern was to meet eligibility criteria for “meaningful use” in order to have CMS pay out its enormous hospital incentive fee. The hospital would have loved to label this conduct as disruptive. However, with 99% of the physicians engaged in the petition, the label would have been transparently a farce. Unfortunately, the administration got its way as the medical staff became splintered by the administration’s bribes and under the table deals. However, this matter raises the issue of distinguishing actionable disruptive behavior from protected patient care advocacy.
A physician who is colorful or arrogant by nature, who criticizes the hospital administration or operations, but in a manner that does not harm patient care or hospital operations, or is merely advocating strongly (even wrongly but not irrationally) for quality patient care, is not a disruptive physician. In fact, some states make it illegal to penalize a physician for advocating for medically appropriate health care. California is probably the most favorable jurisdiction for physicians to challenge the hospital administration and hospital operations in the name of patient safety.[7] Hospitals and medical staff face the greatest legal risk in California for retaliation against ‘whistle blowers.” [8] I am reminded of a recent incident a few months ago where a hospital in my practice area labeled a surgical specialist disruptive when he repeatedly tried to correct the OR surgical nurses for substandard care delivered to his patients. Under Fahlen v. Sutter Central Valley Hosp., 58 Cal. 4th 655 (2014), the physician’s hospital privileges were terminated on a claim of disruptive physician behavior, but the California Supreme Court ordered a reversal of the hospital Board’s position and allowed the physician the right to file a whistleblower suit citing substandard nursing care and a threat to patient care. Similar risks for taking retaliatory action against a physician citing patient care concerns exist in other states. Under Wilkey v. McCullough-Hyde Mem. Hosp., No. 1:04 cv 768 (S.D. Ohio 10/18/07), Dr. Wilkey’s hospital privileges were revoked after his complaints about inferior surgical equipment and scheduling problems. A competitor of the doctor was on the peer review committee. The Medical Executive Committee revoked the doctor’s privileges but the Court ruled in Dr. Wilkey’s favor.
CONCLUSION:
The concept of the disruptive physician has been promoted by the Joint Commission and increased awareness of disruptive behavior has resulted in an increase in the number of complaints of this nature. A disruptive physician acting in the name of patient quality of care is not necessarily disruptive at all. This type of physician is merely a vocal patient advocate. Hospitals retaliating against physicians raising matters of health quality and patient care should expect judicial overview to side with the physician whistleblower.
How to respond to the complaint characterizing you as a disruptive physician:
1-Any complaint, whether formal or informal, carries the risk of irreparable harm to a physician’s career. So, no such complaint should be ignored.
2-If you are asked to attend a meeting with physician leaders assigned to investigate the claim of disruptiveness, ask for details regarding the nature of the charge, who will be present, whether the meeting will be audiotaped and whether minutes of the meeting will be memorialized in writing. Do not go to the meeting feeling that the investigator physicians are merely your colleagues acting in your best interest.
3-If the meeting is to be audiotaped, respectfully indicate that you are not interested in attending this type of meeting. At this investigatory phase, you will not be allowed to bring in legal counsel. Ask that hospital counsel not be present. Ask whether any witnesses will be present.
4-Take copious notes while you are at the meeting acting primarily to delineate the nature of the charge against you, the time and date the incident(s) occurred, who was present, and what was allegedly said. Try not to address any of the allegations at this stage. Never sign any document presented to your at the meeting. Do not admit to matters or charges. Merely indicate that you need to “digest the information” and inform the panel that you intend to respond later, possibly in writing.
5-Once the meeting is over, discuss the details of the meeting with your health law attorney and draft a written response.
6-Should the investigation conclude favorably, request that the conclusion be put in writing with a copy provided to you and a copy placed in the medical staff practitioner’s file. Upon receipt, you might write a letter to the spokesperson for the investigatory panel indicating that you are in receipt of their letter, that you appreciate their efforts, and that it is your understanding that the matter concluded favorably and that the investigation is now over. You don’t want this matter to be raised later for any reason, but especially in the context of a claim of repeated violations.
7-Should the matter escalate to a disciplinary level triggering due process protections, you must work closely with counsel.
Leslie Tar, MD, MPH, Esq, LLM
*Florida Health Law Attorneys, Florida Medical Board Defense Attorneys, Florida Medical License Defense Attorneys.
* Office location in Port Charlotte, Florida with service to Sarasota, Ft Myers, Naples, Tampa, Orlando, Vero Beach, West Palm Beach, Boca Raton, Ft Lauderdale, Miami, Gainesville, Tallahassee, Jacksonville, Pensacola and throughout Florida and nationally.
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[1] The phrase "I know it when I see it" was used, setting a nebulous standard in United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio, 378 U.S. 184 (1964).
[2] The AMA Model Code of Conduct defines appropriate behavior as any reasonable conduct to advocate for patient, recommend improvements in patient care, participate in operations, leadership or activities of organized medical staff, or to engage in professional practice including practice that me be in competition with the hospital.
[3] The Joint Commission issued the Sentinel Even Alert, Issue 40, July 9, 2008, “Behaviors that Undermine a Culture of Safety”, declaring that disruptive behavior can foster medical errors, harm patients, and increase the cost of healthcare.
[4] Keogh, T and Martin, W: Managing unmanageable physicians. Physician Executive, September/October 2004, 18-22.
[5] Physicians Recovery Network (PRN)-a Florida impaired practitioner program, handling physical disorders (including HIV), sexual, mental disorders, substance abuse, and chemical dependency, maintaining physician confidentiality and protection from public disclosure so long as treatment in PRN occurs prior to public harm.
[6] AMA Code of Conduct calls for summary suspension only where disruptive behavior presents imminent danger to health of any individual.
[7] California Business & Professions code Sec 2056 (c).
[8] California health & Safety Code Sec 1278.5.; Pedowitz v. Univ. of Cal. Bd of Regents (Case No. BC 484611) wherein UC Regents paid $10 million dollars to settle a case relating to a whistle blower.