THE TARGETING OF PHYSICIANS’: INSIGHTS, REALITIES & RISK MANAGEMENT
A White Paper Issued by Kern Augustine Conroy & Schoppmann, P.C.
July 26, 2011
Michael J. Schoppmann, Esq., Kern Augustine Conroy & Schoppmann, P.C.
In order to survive (and God willing, even possibly succeed) in today’s medicine, every physician must come to accept certain key insights and recognize certain hard realities.
First insight: The number of agencies, entities and authorities who earn their living every day (and all day) regulating, auditing, monitoring disciplining, prosecuting and punishing physicians continues to grow every day.
Hard Reality: Any action, by any of these entities, will certainly be costly to defend, may well be career ending and may even place the physician’s liberty at stake.
Risk Management: Every physician must:
- Obtain the “ground rules” for every entity/agency under which they exist, operate and/or practice,
- Review and analyze the “ground rules”,
- Decide if they can comply with these “ground rules”, and
- If they cannot comply with the “ground rules”, every physician should immediately end any role or responsibilities they hold under that entity/agency.
Second Insight: All of the entities adverse to physicians have the ready ability, and in some cases the legal obligation, to communicate and coordinate with each other as to the action they are taking against a physician or practice.
Hard Reality: As a result, any investigation or action seemingly limited to one arena may well result in actions and/or investigations being brought against the physician from a number of other adverse entities. One of the tools in cross-referring physicians for corollary actions is the monitoring of the National Practitioner Data Bank (“NPDB”). The NPDB is a permanent depository of all professional data pertinent to a physician. Medical malpractice payers, State licensing boards, hospitals, other health care entities, and professional societies are responsible for reporting to the NPDB any medical malpractice payments made and/or adverse actions taken against a physician.
Risk Management: No inquiry or investigation (of any type, any nature or any mechanism) should be treated as “casual”, educational”, “collegial” or “informal”. Any physician under review, of any nature or degree, must be properly and thoroughly prepared for any meeting, review or conference. The physician under review must obtain the medical record at question, thoroughly review the record and be properly prepared prior to any such meeting, review or conference.
The National Practitioner Data Bank
Third Insight: Medical records are being reviewed, audited, analyzed and scrutinized at an ever increasing rate and in exponentially increasing numbers.
Hard Reality: Most of the complaints generated to entities adverse to a physician, and the resulting actions and/or investigations undertaken by those entities, are initiated by and predicated upon the negative conclusions derived from a review of medical records – without any direct discussion with, or defense by, the physician.
Risk Management: Every physician should design and prepare each and every medical record under the presumption that their patient, their department chairperson, and their “worst enemy” will be reviewing that very same medical record.
Medical Records Scrutiny
Fourth Insight: Almost every complaint to an entity adverse to a physician results in an eventual reporting or referral to the physician’s state licensing authority (“BOM”) and any adverse action by that state licensing authority far outweigh the practical impact of a medical malpractice claim.
Reality: There is no insurance protection for the settlement, or loss, of an action brought by a state licensing authority.
Risk Management: No physician should treat any inquiry (by telephone, correspondence or in-person) lightly. Regardless of the source of that inquiry, the BOM stands immediately behind the entity offering the inquiry and the physician should treat, and defend, the inquiry as if it was being offered directly from the BOM.
BOM Complaint Trends
Fifth Insight: Physicians, as their medical license is a privilege and not a right under the law, hold a set of dramatically compromised rights under the law and are routinely, and increasingly, wrongfully labeled as “Disruptive”, “Impaired” and/or an “Outlier”.
Reality: Any one of these “Scarlet Letter” labels is a virtually permanent and potentially career ending accusation.
Risk Management: No physician should expect that there is, or will be, a “day in court” that exonerates them or provides them with “justice”. Initial conclusions (aka the proverbial “first impression”) are binding, irremovable and devastating. Even the slightest suggestion or inference of wrongdoing must be dealt with immediately, aggressively and relentlessly. Until an inference or suggestion is resolved, and documented, in the favor of the physician, the matter remains an open, high-risk and potentially career ending threat.
Sixth Insight: In response to standards put forth by the Joint Commission, the American Medical Association (AMA), through its Council on Ethical and Judicial Affairs, continues to support the designation of “disruptive physician” as a mechanism for the potential discipline of physicians. In doing so, the AMA has created two distinct forms of physician behaviors upon which such actions can be based. The behaviors, as defined by the AMA and recently updated, are as follows:
“Inappropriate behavior means conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive. Persistent, repeated inappropriate behavior can become a form of harassment and thereby become disruptive, and subject to treatment as ‘disruptive behavior’” (as defined below).
Examples of inappropriate behavior include, but are not limited to, the following:
- 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 refusal to return phone calls, pages or other messages concerning patient care or safety
- Intentionally degrading or demeaning comments regarding patients and their families, nurses, physicians, hospital personnel and/or the hospital
“Disruptive behavior is defined as 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.”
Disruptive physician behavior includes, but is not limited to, the following:
- 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, but not limited to, persistent inappropriate behavior and repeated threats of litigation1
Reality: As this protocol to identify “disruptive physicians” becomes more well-known and accepted, patients, peers or other clinicians will no longer automatically defer to a physician’s behavior as they may have done in the past. Twenty years ago, a physician known to be abrasive, argumentative, flirtatious or even demanding in the operating room would rarely become the subject of scrutiny. Today, however, such a physician, whether new to practice or amply experienced, whether a specialist or a general practitioner and whether internationally renowned or locally obscure, can find himself or herself labeled a “disruptive physician."
Risk Management: In the new investigatory, regulatory and competitive climate of healthcare, it is critical for physicians to avoid even the inference of being “disruptive.” In order to do so, every physician must acquire an understanding of the new healthcare risk landscape and know how to maintain a risk-prevention state of mind with both patients and staff.
Who or What Defines a Physician as “Disruptive”?
“Disruptive,” as a newly developing legal term, is not defined only by the AMA but also by a variety of documents that set expectations for physician conduct, including, but not limited to, medical staff bylaws, employee manuals/handbooks, state and/or federal regulations and employment contracts. These documents also typically contain related clauses that set forth the ability to tie disruptive conduct to physician discipline or termination. In these cases, disruptive conduct includes hostility, tardiness, belligerence, incompatibility with patients or staff, religious insensitivity, cultural insensitivity, racial insensitivity, uncooperative behavior, sexual impropriety or even the use of profanity. Disruptive conduct can also be described in terms of the work environment that it causes, such as a “disharmonious environment.”
By way of recent case examples, the disruptive physician is any of the following:
- The surgeon who raises his or her voice at residents, nurses and/or medical assistants in the operating room – even during a code
- The family physician perceived as being dismissive to a patient’s family member
- The specialist who criticizes or changes the primary care provider’s hospital orders
- The resident who refuses to follow the incorrect orders of a chief resident or fellow
- The attending physician who does not answer his or her pages
- The physician who is viewed as insensitive to a patient’s or colleagues religious observances in providing and scheduling treatment or assigning on-call schedules
Why Are Physicians Being Targeted as Disruptive?
The recent actions by organizations such as the Joint Commission and the AMA rely upon studies that site a correlation between intimidating physicians and increased medical error rates (and poor patient satisfaction). From a financial standpoint, it has also been opined that disruptive physicians lead to the transitory nature of patients, thereby interfering with continuity of care and increasing costs. From an operational standpoint, it is believed that such physician behaviors can cause well-qualified medical practice and/or hospital personnel to resign or seek transfers. Disgruntled patients, colleagues and staff lead to an increased likelihood of medical malpractice lawsuits, whistleblower actions and complaints to various state and/or federal agencies. Any or all of these events are viewed as dramatically interfering with the delivery of care, tarnishing the reputation of the facility/practice/physician and diminishing the healthcare experience for patients and their families.
What Are the Ramifications of Being Labeled as Disruptive?
Being labeled as disruptive can be a career-ending event for a physician. State and federal agencies can discipline a physician for engaging in disruptive behavior if that behavior is found to impact the quality of patient care or if it suggests moral, ethical or professional shortcomings. Disgruntled patients can complain to health plans/managed care companies, leading to investigations that can result in the termination of the physician’s contract and dramatic losses and income. Action can be taken against a physician’s hospital privileges for intimidating, uncooperative or insensitive behavior. Moreover, these types of behaviors are reportable to the National Practitioner Data Bank and thereby may trigger cross investigations and/or actions as the physician seeks credentialing or re-credentialing.
What Are the Risk Factors of Being Labeled as Disruptive?
Warning signs do exist for a pending accusation of disruptive or inappropriate behavior. Does the physician have a high turnover rate of staff or clinicians? Is the physician regularly the recipient of complaints from patients or staff? What is the physician’s personal reputation in the medical and patient community? What are the results from a simple internet search of the physician’s name? Have there been any patient surveys conducted by the practice, the facility or a health plan? What are the results?
Awareness of a physician’s reputation among his or her colleagues and/or patients is the first step to ascertaining if one’s “physician behavior” is creating a risk of being labeled as intimidating or insensitive and thereby “disruptive.”
How Can a Physician Avoid Being Labeled as Disruptive?
The critical first step in avoiding the label of “disruptive is to immediately obtain any and all rules, regulations, policies or protocols (most commonly referred to as a code of conduct) under which the physician currently practices. These rules and/or policies can potentially apply to physicians’ employment status and/or their medical staff standing; they can also be part of medical staff bylaws, human resource manuals and/or employee handbooks. These codes of conduct should be carefully reviewed and strictly adhered to. If a physician views the code of conduct as unreasonable, he or she should seek changes through accepted structures at either the place of employment or through the offices of the medical staff.
What Should a Physician Do If Labeled as Disruptive?
If a physician receives even an inference from a colleague, patient human resource representative, administrative agency investigator or hospital medical staff board member that his or her behavior has been labeled as disruptive, the accusation cannot be taken lightly, and it must be addressed squarely and relentlessly. When faced with either verbal or written accusation of disruptive behavior, every physician should realize initially that there are no informal inquiries, no casual conferences and certainly no innocuous investigations. Nothing is either unimportant or “off the record.” Faced with any allegation of disruptive conduct, a physician should react calmly and professionally, assertively using the following guidelines:
- Obtain and review the governing code of conduct, policy, manual, handbook and/or bylaws that set forth the governing “Disruptive Physician” policy.
- Obtain a copy of any involved patient records.
- Demand that any accusation be confirmed, by the source, in writing.
- Attend meetings pertaining to a complaint of disruptive conduct only after confirming, in writing, who will attend the meeting and the specific allegations or topics to be discussed.
- Require that any favorable resolution of the complaint (i.e., dismissal) be put in writing and inserted in any applicable medical staff, employment and/or credentialing file – and that a copy also be provided to you.
- Carefully review any appeal deadlines and/or requirements to challenge the disposition further in the event of an unfavorable result (i.e., corrective action).
In conclusion, for any physician to remain ignorant of these new rules of conduct may well dictate an adverse course for that physician’s future ability to practice medicine. Choosing instead to openly address and aggressively manage the risk allows the issue of disruptive conduct not only to protect the physician but also to secure his or her future. It is a frustrating and unfair (yet unquestionably true) hard reality that physicians are the targets of an increasing number of both private and public sector entities and/or agencies. Accepting that reality, and seeking immediate and ongoing compliance with the “rules” of these entities and/or agencies is the first, and possibly the most critical, step in managing these risks attendant to these anti-physician acronyms. Avoiding any review, any investigation and/or and especially any adverse action is the new, and true, definition of victory.
Kern Augustine Conroy & Schoppmann, P.C. www.drlaw.com has offices in New York, New Jersey, Pennsylvania and affiliate offices in Chicago, IL, and Altamonte Springs, FL. The firm’s practice is solely devoted to the representation of health care professionals. Mr. Schoppmann may be contacted via email ‐ firstname.lastname@example.org
- Note: From Model Medical Staff Code of Conduct, by B.I. Cohen and E.A. Snelson, 2010, Chicago: American Medical Association. Reprinted with permission.