CMO’s statement could complicate hospital’s defense

The alleged claim by a fired emergency physician, that the chief medical officer (CMO) assured her that her job was not in jeopardy, could complicate matters for the hospital, which is being sued by the doctor, says Jason Koors, JD, legal counsel with MemorialCare Health System in Fountain Valley, CA.

Spectrum Health in Grand Rapids, MI, dismissed the doctor after she posted a comment on Facebook in response to a nurse posting a photo of a patient’s buttocks.

"Whenever conducting an investigation, human resources should always advise senior management against making promises to employees or offering assurances of job security," Koors says. "It’s all about managing expectations."

The CMO’s action also concerns R. Stephen Trosty, JD, MHA, CPHRM, president of Risk Management Consulting in Haslett, MI, and a past president of the American Society for Healthcare Risk Management (ASHRM). The repercussions of an assurance that the doctor would not be dismissed might lie in a court determination of whether the CMO acted as an agent of hospital and had the authority to do so. If the CMO was overstepping, the statement to Puetz carries no weight, Trosty says. If the CMO was properly acting as an agent, the statement probably would prevent dismissal but not some lesser punitive action, he says.

"If the CMO had the authority to act as the hospital’s agent and made the statement, it would not preclude taking some type of action since I do not believe any hospital personnel, including the CEO, can do this if it would result in a penalty to the hospital for failing to properly respond to a HIPAA violation," Trosty explains. "The hospital is expected to take some action for violation, but I do believe this might be a gray area that could require some form of judicial determination. It also becomes an issue for the hospital, as a separate concern, to deal with the CMO if he or she exceeded existing authority when making the statement."

Medical staff bylaws or hospital policy should spell out who has ability to make these types of statements that a hospital might have to live with later, he says.