Slides []

Report
Disruptive Physicians: A Roadmap to
Avoid Dangerous Behavior
January 18, 2012
Steven R. Smith & Sarah E. Swank
www.healthcaregcinstitute.com
Welcome
• Today’s speakers
• Ober|Kaler Health Care General Counsel webinars
• Overview of the topic
• Discussion
• Questions
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Meet Today’s Speakers
Steven R. Smith
Principal, Ober|Kaler
[email protected] | 202.326.5006
Moderator
Sarah E. Swank
Principal, Ober|Kaler
[email protected] | 202.326.5003
Speaker
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
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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
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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.
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Upcoming Webinars
• Telemedicine: Strengths, Weaknesses,
Opportunities and Threats – March 21, 2012
• You and your career – Spring 2012
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Today’s Discussion
• What is disruptive behavior?
• Why should we care?
• How do we prevent it?
• We have a problem, now what?
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Practice Settings
• Hospital
• Physician office
• Long term care
• Telemedicine
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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?
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Disruptive Behavior . . .
• Let’s start with two clear examples:
– Assault: Yes or No
– Rude: Yes or No
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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.
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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.
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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.
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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.
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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.
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What is disruptive behavior?
• What about disruptive nurses?
• Disruptive executives?
• Disruptive lawyers?
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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
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Past Barriers
• Are past barriers still current barriers?
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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
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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
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The Joint Commission (TJC)
• Did not define unacceptable or disruptive
behavior
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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
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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
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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
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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
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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
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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”
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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
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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)
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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
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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.”
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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
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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
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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
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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
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The American Medical Association (AMA)
• Procedure (Cont’d)
– Acknowledge complaint
– Notify physician
– Create an ad hoc committee
– Document resolution
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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
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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
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State Board of Physicians
• Investigate behavioral complaints
• Reporting requirements
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Why should we care?
•
•
•
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•
•
•
•
Communication
Team effectiveness
Quality
Medical staff issues
Employee issues
Patient satisfaction
Malpractice
Staff morale and turnover; employee satisfaction
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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?
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Lawsuit Tips
• Insurance issues
• Joint representation
• Pick the right counsel
• Keeping everyone’s eye on the ball
• Wary medical staff members
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Questions
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More questions? Contact us.
Steven R. Smith
Principal, Ober|Kaler
[email protected] | 202.326.5006
Sarah E. Swank
Principal, Ober|Kaler
[email protected] | 202.326.5003
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
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