Have a problem physician? Your program is liable, even with nonemployees
Have a problem physician? Your program is liable, even with nonemployees
From sexual comments to scalpels flying, stories are abound
(Editor’s note: In this first part of a series of stories on problem employees, we discuss physician harassment. In next month’s issue, we’ll discuss having a written anti-harassment policy, and we tell you how to handle repeated offenses. Future stories will cover firing problem employees.)
A plastic surgeon offers free mammary endowments to his female staff and expects them to wear scrubs two sizes too small to show them off.
A general surgeon becomes agitated during a case that isn’t going well. After the scrub nurse offers a suggestion, he explains she is there to do his bidding. After the physician swears, the scalpel leaves his hand, passes her head, and vibrates in the wall.
Outpatient surgery managers may think these actual cases aren’t their problem if these physicians are not employees. However, they would be wrong.
"That is a definite misnomer," says Anita S. Lambert-Gale, RN, MES, vice president of clinical operations at Nashville, TN-based HealthMark Partners, which co-owns and manages surgery centers with physicians and hospitals.
The first response of administrators often is, "It’s not my fault," Lambert-Gale says. "That’s the general thought: We can’t do anything with physicians, it’s out of our control," she adds. "But in today’s world, we do have an obligation."
Increasingly, surgery centers and hospitals are at risk for acts of discrimination and harassment by physicians, even nonemployed ones, according to two lawyers who spoke at this year’s annual meeting of the Federated Ambulatory Surgery Association (FASA). Lawsuits still arise from crude jokes, sexist remarks, and unseemly behavior, and the risk of a lawsuit arising from such behavior in the operating room should not be ignored, according to Brian A. Lapps Jr., JD, and E. Brent Hill, JD, both members at Waller Lansden in Nashville, TN.
The focus of the liability is whether the surgery employee has been subjected to unlawful discrimination and harassment, not whether it was an employee who committed the discrimination, they said.1 Surgery centers and hospitals must take measures to protect their employees from unlawful discrimination and harassment by employees and nonemployees who are in the facility, Lapps and Hill said. Examples of nonemployees who could create a hostile work environment are equipment repair personnel, sales vendors, janitorial employees, and physicians.
Because doctors generally have significant contact with employees and often have control over their work environment, outpatient surgery managers must be particularly vigilant to guard against mistreatment of employees by doctors, including nonemployee doctors, they warned.
The stress of the OR is no defense. The deciding factor is whether the employer knows or should have known about the harassment and failed to take prompt and remedial action, Lapps and Hills said.1 Also, doctors and their practices can be sued.
The fact that a worker is paid on the facility’s tax identification number and not a physician group’s number does not mean that the doctor or his group cannot be liable for discrimination, Lapps and Hill said.1 This type of liability is particularly likely when a physician practice owns or is closely affiliated with a surgery center or when a large percentage of a surgery center’s caseload is derived from a single practice so that the doctors have a great deal of control, express or implied, over the surgery center’s operations, they said.
Surgery center managers can find themselves in a difficult position when one of their doctors is accused of discrimination, Lapps and Hill acknowledged. Because physicians are essential to the success of the center, managers often will want to preserve the physician relationship. Lawsuits, however, can be disruptive and more expensive than the costs of addressing inappropriate behavior. Mangers must engage in a delicate balancing act of protecting employees’ rights and preserving physician relationships, Lapps and Hill said.
"Reasonable and prudent steps . . . will keep an ASC from paying for the bad acts of third parties," Hill said.
To avoid liability, consider these steps:
• When harassment occurs, investigate.
"Even when an employee lodges a complaint and says that this is off the record,’ or I don’t want you to do anything about it,’ the center still has an obligation to act," Lapps says. Investigate the issue within one to two weeks, he and Hill advised.1
Begin by meeting confidentially with the complaining employee to find out the details of the allegations, Lapps said. The interviewers need to obtain the names of potential witnesses and then interview those witnesses to determine whether they corroborate the story, he added. At some point, the accused party should be given a chance to provide his or her side of the story.
With the accused person, use nonleading questions to find out the facts: who, what, where, when, why, and how. Keep asking questions until you fully understand, Lapps and Hill advised.1 Put the person at ease by asking, "Did anything interesting or out-of-the-ordinary happen?" Let he or she tell what happened in his or her own words.
Document facts, but don’t draw legal conclusions, Lapps and Hill suggested.
• Meet with the physician.
Regarding the physician whose scalpel ended up in the wall: The physician had a history of having a poor attitude and throwing instruments, says Roger Pence, administrative director of Mount Nittany Surgical Center in State College, PA, and president of FWI Healthcare, an Edgarton, OH-based consulting firm primarily for ambulatory health care providers.
Pence had a long discussion with the physician about his behavior. "At first, he responded with, "If they don’t like it, they can leave!’" Pence recalls. After Pence discussed costs of recruiting, hiring, and training and the legal issue costs, the physician’s attitude modified some, Pence says.
Additionally, the physician agreed to meet with his staff where, as a group, they indicated dissatisfaction with his expectations, he says. "Individually, he overpowered them. Collectively, they influenced him."
"After the physician learned he could be sued by any current and/or former employees, he backed off," Pence says. "His behavior continued improving over time," he adds.
If a doctor refuses to improve his or her behavior, a facility may want to point out a contractual provision that obligates the doctor to abide by facility’s policies and allows the facility to cancel its contract if he or she does not abide by policy, Lapps says.
• Involve your medical staff executive committee.
Harassment by a physician should be discussed outside of the nursing specialty, says Michael Burnett, BSN, RN, clinical manger of the Adena Health Pavilion Surgery Center in Chillicothe, OH. "No. 1, don’t brush it under the rug," he advises. "It needs to be addressed, and I think appropriate medical staff need to be aware of the issue."
Lapps and Hill agreed. Because physicians may be more likely to listen to their peers, have a respected colleague, such as a medical director, help deliver the message and address the problem, they suggested. Enlisting the help of another doctor, such as a partner from the same practice who has a financial interest in preventing harassment, works well, they said.
In the scalpel incident mentioned above, the nurse manager entered the room shortly after the incident and asked the surgeon to meet her immediately after the case. At that meeting, he disregarded her comments. The next morning, the medical director went to the operating room and removed the scalpel, still in the wall. A special meeting of the medical staff executive committee was called. At that meeting, the medical director agreed to meet with the nurse manager and offending surgeon. When they met, the nurse mentioned a potential attempted-murder charge. As a result, the surgeon agreed to apologize for "allowing the scalpel to slip out of his hand," Pence says. There was short-term improvement in the surgeon’s performance, and eventually he moved from that community, he says.
Reference
- Lapps BA, Hill EB. Dealing with the Problem Employee and Physician. Federated Ambulatory Surgery Association Program Syllabus; 2005.
Sources
For more information on problem physicians, contact:
- Michael Burnett, BSN, RN, Clinical Manager, Adena Health Pavilion Surgery Center, 272 Hospital Road, Chillicothe, OH 45601. Phone: (740) 779-8274. Fax (740) 779-7698. E-mail: [email protected].
- Anita S. Lambert-Gale, RN, MES, Vice President , Clinical Operations, HealthMark Partners, 40 Burton Hills Blvd., Suite 300, Nashville, TN 37215. Phone: (615) 329-9000, ext. 237. E-mail: [email protected].
- Roger Pence, FWI Healthcare, 04405 Road D, Suite 300, Edgerton, OH 43517. Phone: (419) 298-3700. Fax (419) 298-3750. E-mail: [email protected].
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