EXECUTIVE SUMMARY

Addressing problematic physicians requires strict adherence to state and federal law. Failure to do so creates potential liability for the hospital.

  • Choosing how to investigate a physician is a key starting point.
  • Physicians may sue the hospital for wrongful termination, defamation, and other issues.
  • Deviating from required timelines can forfeit immunity otherwise afforded the hospital.

Dealing with problematic physicians requires wading into a tangle of strict legal requirements on how a doctor can be investigated, and there are ample opportunities for missteps. Medical staff management is a very murky, highly regulated area of hospital law in which risk managers must tread carefully.

The process involves multiple decision points that must be considered carefully, says Sarah E. Coyne, JD, national chair of the Health Law Practice Group with Quarles Brady in Madison, WI. If a physician begins to display problematic behavior, the first decision point is whether to address it through human resources for an employed physician, through the business manager for contracted physicians, or through the medical staff leadership.

“The medical staff leadership has a fiduciary duty to the patients and community, but as a practical matter it’s a lot messier to handle things through peer review and medical staff corrective action than through the employment process,” Coyne says. “The Healthcare Quality Improvement Act creates a process you have to follow for medical staff to retain immunity for peer review, and states may have peer review immunity laws as well. It’s good to have that immunity, but the steps you have to go through to retain it can be rather onerous.”

That can include a thorough investigation of the physician, possibly including an external evaluation of his or her condition, along with extensive chart reviews, interviews with co-workers, observation, and external peer review. The investigation also is a determinative factor in whether a physician is reported to the National Practitioner Data Bank (NPDB), Coyne notes.

“It’s not a mark of death, in my view, to have a physician in the NPDB, but it is something that physicians fear and their dread of ending up on NPDB can drive the way an investigation unfolds,” Coyne notes. “Once the investigation starts, doctors may just decide to resign their privileges rather than risk that, and then the fact that they resigned to avoid an investigation becomes a black mark on their record. When that hurts their careers, it is not uncommon for them to come back and say, ‘you did all this unfairly.’”

Negligent credentialing claims are less common now because malpractice claims overall are down, and plaintiffs often threw that claim into a malpractice lawsuit as a routine matter, Coyne notes. But far more common are claims against the hospital by a physician who feels he or she has been treated unfairly, Coyne says.

“I’m seeing claims by physicians claiming wrongful termination, tortious interference with professional relations, defamation, and antitrust claims. There are a number of ways they can go about it,” Coyne says. “In general, the doctor loses because there are protections in the law as long as you were careful in how you carried out the process. But, of course, that doesn’t mean there is no downside for the hospital when the physician brings the lawsuit.”

Medical staff bylaws must be carefully written so as not to contradict state and federal laws, Coyne notes. Bylaws that contradict the timing requirements stated by law may result in forfeiting some of the immunity provided by that law, she says.

Choosing to address a problematic physician through the human resources or contractual route, when possible, may avoid some of those issues — but still brings other risks.

“Then, the medical staff is potentially shirking their fiduciary and leadership duties to monitor credentialing and ensure quality of care. They could be the subject of a negligent credentialing suit,” Coyne says. “If there is a bad outcome by that physician and it has only been handled through human resources, the medical staff leadership are seriously at risk for negligent credentialing.”

It is possible to address a physician issue simultaneously through human resources and the medical staff leadership peer review process, but that becomes quite complex in terms of what information can be shared, Coyne says.

“Another way to get in trouble with all this is to go down both paths and share information that is protected by privilege or peer review protection statutes,” she says.

Summary Suspension Possible

When a physician’s behavior poses an immediate risk to patients or hospital operations, it may be appropriate to summarily suspend a doctor’s privileges, Coyne says. That may mean preventing the physician from practicing at the hospital, or prohibiting certain procedures or activities, as when data reveal that a surgeon’s outcomes with one procedure are way below standard.

“Summary suspension sometimes comes into play with behavioral problems, which are just as important to monitor and control as performance problems,” Coyne says. “Research has shown a very clear nexus between a physician’s behavioral misconduct and patient safety, so a doctor who bullies nurses into doing things they don’t want to do, for instance, becomes a performance issue. When nurses are so afraid of or dislike a doctor so much, that can make them less likely to call the doctor when needed, and the patient suffers.”

Physician bylaws will specify when summary suspension is appropriate and whether it must be imposed by medical staff leadership. Some hospital bylaws permit hospital administration and/or board members to summarily suspend a physician, Coyne notes.

“Once you hand the physician that letter informing them of summary suspension, then it becomes a tricky process of counting days,” she says. “The medical staff or whoever is investigating has 14 days to decide whether they want to go down the hearing route or not, because under the Healthcare Quality Improvement Act, on the 15th day the doctor has a right to request a hearing.”

That is a major decision point because a hearing is essentially a trial before a group of doctors rather than a judge, Coyne explains.

“They are long, exhaustive, emotional, expensive processes that should not be entered into lightly,” Coyne says. “You would want to think carefully about whether the 14-day suspension resulted in the necessary change and that’s enough, or whether you want to proceed to this next step and all that means.”

Many Ways to Go Wrong

After 30 days of suspension or any restriction of privileges, the hospital must report the doctor to the NPDB regardless of the status of any investigation, Coyne notes. Any adverse action resulting from an investigation also must be reported.

Risk managers should note how specific the rules are for timing and reporting, Coyne says. Deviating from those rules can create liability risks for the hospital during all the hassle and drama of dealing 
with a problematic physician.

“The rules are so specific and so intertwined. It is important to have someone at the hospital who knows the implications of these decisions and going down these different paths,” Coyne says. “If you don’t follow these rules exactly, you can end up with litigation from a patient or from the physician. You can go wrong a whole lot of ways. It seems easier than it is.”

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