2017 HSC Section 2 - Practice Management

GROGAN AND KNECHTGES

Academic Radiology, Vol 20, No 9, September 2013

inappropriate or unprofessional. Throwing instruments, dam- aging property, or unprofessional outbursts of anger have been determined to be disruptive. Some say hostile, angry, abusive, aggressive, or confrontational voice or body language is dis- ruptive. Most agree that language or criticism directed to the recipient in such a way as to ridicule, intimidate, undermine confidence, or belittle is disruptive behavior. LESSONS FROM CASE LAW Court after court has held disruptive behavior as a legitimate reason to revoke or refuse renewal of staff privileges as has been evidenced in several landmark cases (7–9) . Case law varies slightly from state to state; however, the aforementioned cases and other subsequent cases have laid the groundwork for the Federal Healthcare Quality Improvement Act of 1986 (10) . For example, one case involved a physician who told a nurse that ‘‘she should get off her ass’’ and that she was a ‘‘wrench in the works, she was obstructing patient care’’ (11) . His privi- leges were revoked and he sued the hospital. That court held, ‘‘So, essentially, disruptive is to interrupt the ordinary course of things, the normal course of things, is disruptive. And, as defined in the Duquesne Law Review, the disruptive practitioner is by definition contentious, threatening, unreachable, insulting and frequently litigious. He will not, or cannot, play by the rules, nor is he able to relate to or work well with others,’’ (12) . Another case involved a surgeon who had an angry exchange with two anesthesiologists when an operation began 3 minutes behind schedule (13) . When the anesthesiologists attempted to explain why they were taking a few minutes to reexamine the patient’s medical records before administering the anesthesia to the patient on the operating table, he told them that he ‘‘didn’t give a damn about incompetent people’s excuses.’’ According to the anesthesiologists, he then launched into a tirade of insults in loud and angry tones in front of the still-conscious patient. His disruptive behavior continued when he falsely reported to a nurse supervisor that one of her patients had just hanged himself in their hospital room; in fact, the patient was fine. He explained that he had intended the episode as a ‘‘joke’’ to teach the nurse ‘‘responsibility.’’ On another occasion, he slapped a surgical technician’s hands, apparently as a reprimand for a perceived mistake in handling a catheter, while she was assisting him in an operation. His privileges were revoked. He sued to get them back and lost. Another physician interfered with a lymph node biopsy being performed by his archrival, another obstetrician/gyne- cologist (14) . He strode into the operating room suite and demanded that a nurse, who was the operating room coordi- nator, stop another physician’s operation. He did not follow the appropriate procedure of complaining before the surgery to the chief of surgery or to the chief of the medical staff. He lost his privileges. He, too, sued and lost. Therefore, virtually all courts uphold the right of a hospital to act whenever the physician’s disruptive conduct, in the

expert opinion of the hospital authorities, ‘‘may’’ or ‘‘could’’ adversely affect patient care. This majority view is consistent with the Federal Health Care Quality Improvement Act of 1986, which states disruptive behavior ‘‘affects or could affect adversely the health or welfare of a patient or patients’’ (10) . The potential effect on patient care may not be presumed but must be shown by the evidence. But a hospital need not wait for a disruptive physician to harm a patient before revoking a medical staff member’s privileges (15) . What is not disruptive behavior? One court has said, ‘‘Doc- tors, like other people, have quirks, and some doctors are more disagreeable than others. The mere fact that a doctor is irascible, however, does not constitute good cause for termi- nation of his or her hospital privileges’’ (16) . On similar grounds, another court concludes, ‘‘The mere fact that a physician is irascible, however, or that he or she generally annoys other physicians, nurses or administrators does not constitute sufficient cause for termination of his or her hospital privileges’’ (14) . Criticism that is offered in good faith with the aim of improving patient care should not be construed as disruptive behavior (17) . However, the right to criticize constructively ‘‘is not a right to malign’’ (18) . It has been made very clear that ‘‘a doctor should not be cut off from staff membership merely because he or she has criticized hospital practices and other doctors’’ (18) . Courts generally defer to hospitals’ peer review process when a decision to revoke or refusal to renew staff privileges occurs. This position is supported by the AMA, which has argued, ‘‘The vast majority of lawsuits challenging peer review proceedings should be dismissed at the summary judgment stage. Suits against peer reviewers should be allowed to go forward only when the plaintiff has rebutted the presumption that the peer review proceeding was reasonable and fair’’ (18) . ‘‘Any lesser standard would deter physicians from serving as peer reviewers and would therefore undermine the purpose of the HCQIA’’ (18) . Rarely, courts side with the physician. One physician lost his privileges because he complained to governing bodies about his hospital’s practices being outside the norm (19) . Specifically, he argued the hospital did not follow appropriate procedures in posting random on-call schedules, provided deficient child psychiatric care, and had policies requiring premature patient discharge when patients ran out of insurance to cover their care. He was able to prove that his privileges were not revoked in a reasonable belief of furthering the quality of health care. In another case, the Tenth Circuit upheld a district court’s finding that the peer review board lacked immunity because the board investigated only two patient charts before deciding to revoke the physician’s privi- leges, which was not a reasonable effort to obtain facts (20) . POTENTIAL CAUSES OF DISRUPTIVE PHYSICIAN BEHAVIOR In general, physicians need to have a consistent track record of prosocial behavior to gain acceptance into medical school,

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