Disruptive Physicians: A Roadmap to Avoid Dangerous Behavior January 18, 2012 Steven R. Smith & Sarah E. Swank

1. Disruptive Physicians: A Roadmap to Avoid Dangerous Behavior January 18, 2012 Steven R. Smith & Sarah E. Swank

2. Welcome • Today’s speakers • Ober|Kaler Health Care General Counsel webinars • Overview of the topic • Discussion • Questions

3. Meet Today’s Speakers Steven R. Smith Principal, Ober|Kaler ssmith@ober.com | 202.326.5006 Moderator Sarah E. Swank Principal, Ober|Kaler seswank@ober.com | 202.326.5003 Speaker Steve and Sarah are cofounders of the Ober|Kaler Health Care General Counsel Institute. Join us on LinkedIn: Ober|Kaler Health Care General Counsel Institute Group

4. Webinar Housekeeping • Slides are located in the left hand corner to download • Type your questions into the question window at any time. We will answer them at the end of the program • Webinar slides and audio replay are available at www.healthcaregcinstitute.com • Brief evaluation (6 questions) will be emailed to you after this program

5. Physician-Hospital Relationships Series Part 1: Courting Physicians: Pros and Cons of Six Integration Models Part 2: Physician Contracting and Compliance: To Disclose or Not to Disclose Part 3: Disruptive Physicians: A Roadmap to Avoid Dangerous Behavior Visit www.healthcaregcinstitute.com for slides and recordings.

6. Upcoming Webinars • Telemedicine: Strengths, Weaknesses, Opportunities and Threats – March 21, 2012 • You and your career – Spring 2012

7. Today’s Discussion • What is disruptive behavior? • Why should we care? • How do we prevent it? • We have a problem, now what?

8. Practice Settings • Hospital • Physician office • Long term care • Telemedicine

9. What is Disruptive Behavior? • Verbal abuse, intimidation, demeaning comments and emotional outbursts? • Threats of violence, termination or lawsuit? • Inappropriate physical contact, throwing objects, refusal to respond to pages? • Abuse over the telephone and other similar conduct?

10. Disruptive Behavior . . . • Let’s start with two clear examples: • Assault: Yes or No • Rude: Yes or No

11. Now, your turn . . . Question 1 • Is this disruptive behavior? – Yes or No • Dr. Mad was upset he could not get into the OR. He broke a telephone, shattered the glass on a copy machine, shoved a metal cart into the doors of the operating suite, threw jelly beans down the hallway in the surgical suite, flung a medical chart to the ground, and verbally abused a nurse manager.

12. Question 2 • Is this disruptive behavior? – Yes or No • At a regularly scheduled surgical support services meeting, Dr. Yellsalot, chief of surgery, has heated words with Mr. Yellsback, Director of Support Services, over a new policy about OR availability. Ms. Frighten, the Director’s assistant, witnesses the argument. The argument quickly escalates. Mr. Yellsback reports to the Hospital President that Dr. Yellsalot raised his voice, slammed charts on the table, grabbed a chair and threw it and demanded that Mr. Yellsback stay at the meeting when he wanted to leave. Ms. Frighten corroborates the story and even begins to cry when questioned by the Hospital President and HR. • Ten days prior this meeting, Dr. Yellsalot and 50 other members of the surgery department put in a memo about the management of the Surgical Services Department by Mr. Yellsback.

13. Question 3 • Is this disruptive behavior? – Yes or No • Dr. Pottymouth used sexually explicit and offensive language during a psych consult of a female patient. • A second female patient complains of this behavior to a caseworker who is following up after the patient is discharged from the hospital.

14. Question 4 • Is this disruptive behavior? – Yes or No • Dr.Whistleblower is a surgeon employed by a hospital. She is vocal about care provided by Dr. Notsogood and reported this to the head of her department. Patients and other physicians found Dr. Whistleblower negative and confrontational. The head of the department requested an ad hoc committee be appointed to determine whether Dr. Whistleblower is disruptive. The committee recommended Dr. Whistleblower attend anger management classes or face further discipline.

15. Question 5 • Is this disruptive behavior? – Yes or No • Physician receives a notice from the credentials committee that he loses his temper, uses profane language and acts disruptively. No names and dates related to the incidents were included until the physician requests them.

16. What is disruptive behavior? • What about disruptive nurses? • Disruptive executives? • Disruptive lawyers?

17. Past Barriers • Brings in a lot of money • “Surgeons will be surgeons” • Special relationship with hospital administration • Affiliated with a powerful physician group • Donates a lot of money • Otherwise a good doctor and a “nice” guy • Just had a “bad” day • We used to be able to ________ [fill in the blank] • The “slap on the wrist” approach

18. Past Barriers • Are past barriers still current barriers?

19. The Joint Commission (TJC) • Applies to: Accredited health care organizations • Effective: January 1, 2009 • Requires: Policies and procedures to address disruptive physician behavior in the workplace • Standards: Leadership LD.03.01.01 • Sentinel Event Alert 2008: Dangers of behavior • Sentinel Event Alert 2009: Culture of safety, Board and patient involvement

20. The Joint Commission (TJC) • Joint Commission Standard LD.03.01.01 • EP 4: Code of conduct that defines acceptable and disruptive and inappropriate behaviors • EP 5: Create a process for managing disruptive and inappropriate behaviors

21. The Joint Commission (TJC) • Did not define unacceptable or disruptive behavior

22. The American Medical Association (AMA) • “Behaviors That Undermine Safety” • Policy H-225.956 • Medical staffs to develop and implement their own code of conduct in the medical staff bylaws • Hospitals have a code of conduct applicable to members of the board, management and all employees

23. The American Medical Association (AMA) • Appropriate Behavior Definition • Any reasonable conduct to advocate for patients • To recommend improvements in patient care, to participate in the operations, leadership or activities of the organized medical staff • To engage in professional practice including practice that may be in competition with the hospital • Criticism that is offered in good faith with the aim of improving patient care should not be construed as disruptive behavior

24. The American Medical Association (AMA) • Disruptive Behavior Definition • Chronic or habitual pattern of behavior that creates a hostile environment, the effects of which have serious implications on the quality of patient care and patient safety • 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. • Personal conduct, whether verbal or physical, that affects or that potentially may affect patient care negatively

25. The American Medical Association (AMA) • Sexual or Other Harassment Definition • Conduct toward others based on their race, religion, sex, sexual identity or orientation, nationality or ethnicity, physical or mental disability, or marital status which has the purpose or direct effect of unreasonably interfering with a person’s work performance or which creates an offensive, intimidating or otherwise hostile work environment

26. The American Medical Association (AMA) • Sexual or Other Harassment Definition (con’t) • Sexual harassment includes unwelcome verbal or physical conduct of a sexual or gender-based nature which may include • Verbal harassment (such as epithets, derogatory comments or slurs) • Physical harassment (such as unwelcome touching, assault, or interference with movement or work) • Visual harassment (such as the display of derogatory cartoons, drawings or posters) • Sexual harassment includes conduct that creates and/or perpetrates an intimidating, hostile, or offensive environment

27. The American Medical Association (AMA) • Inappropriate Behavior Definition • Conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive • Persistent, repeated inappropriate behavior can become a form of harassment and become disruptive, and subject to treatment as “disruptive behavior”

28. The American Medical Association (AMA) • Medical staff members cannot be subject to discipline for appropriate behavior. • Examples of appropriate behavior: • Advocacy on patient care matters • Recommendations or criticism communicated in a reasonable manner and offered in good faith with the aim of improving patient care and safety • Encouraging clear communication • Expressions of concern about a patient’s care and safety • Expressions of dissatisfaction with policies through appropriate grievance channels or other civil non-personal means of communication

29. The American Medical Association (AMA) • Examples of appropriate behavior (con’t): • Use of cooperative approach to problem resolution • Constructive criticism conveyed in a respectful and professional manner, without blame or shame for adverse outcomes • Professional comments to any professional, managerial, supervisory, or administrative staff, or members of the Board of Directors about patient care or safety provided by others • Fulfilling duties of medical staff membership or leadership • Active participation in medical staff and hospital meetings (i.e., comments made during or resulting from such meetings can not be used as the basis for a complaint under this Code of Conduct, referral to the Health and Wellbeing Committee, economic sanctions, or the filing of an action before a state or federal agency)

30. The American Medical Association (AMA) • Examples of appropriate behavior (con’t): • Exercising rights granted under the medical staff bylaws, rules and regulations or policies • Engaging in legitimate business activities, while being mindful of contractual commitments • Membership on other medical staffs • Seeking legal advice or the initiation of legal action for cause

31. The American Medical Association (AMA) • Inappropriate behavior by medical staff members is discouraged. Persistent inappropriate behavior can become a form of harassment and become disruptive, and subject to treatment as “disruptive behavior.”

32. The American Medical Association (AMA) • Examples of inappropriate behavior: • 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 lack of cooperation without good cause • 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, or nurses, physicians, hospital personnel and/or the hospital

33. The American Medical Association (AMA) • Disruptive behavior by medical staff members is prohibited • Examples of disruptive behavior: • 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 persistent inappropriate behavior and repeated threats of litigation

34. The American Medical Association (AMA) • Interventions • Non-adversarial in nature, if possible, with the focus on restoring trust, placing accountability on and rehabilitating the offending medical staff member, and protecting patient care and safety • Tiered, starting with informal discussion of the matter with the appropriate section chief or department chairperson • Further interventions can include: • Apology directly addressing the problem • Letter of admonition • Final written warning, or corrective action pursuant to the medical staff bylaws • Summary suspension - presents an imminent danger to the health of any individual • Rehabilitation may be recommended at any time • Behavior is due to illness or impairment, the matter may be evaluated and managed confidentially according to the established procedures of the medical staff’s Health Committee

35. The American Medical Association (AMA) • Procedure • Complaints about a member of the medical staff in writing, signed • Directed to the President of the medical staff, or VP if President is the subject of the complaint • Complaints contain: • Dates, times and location • Description • Circumstances which precipitated the incident • Name and medical record number of any patient or patient’s family member who was involved in or witnessed the incident • Names of other witnesses to the incident • Consequences, if any, of the inappropriate or disruptive behavior as it relates to patient care or safety, or hospital personnel or operations • Any action taken to intervene in, or remedy, the incident, including the names of those intervening

36. The American Medical Association (AMA) • Procedure (Cont’d) • Acknowledge complaint • Notify physician • Create an ad hoc committee • Document resolution

37. The American Medical Association (AMA) • Behavior directed at a Medical Staff Member • Reported by the medical staff member to the hospital under hospital policy or code of conduct • Directly to the hospital governing board • State or Federal government • Relevant accrediting body

38. The American Medical Association (AMA) • Abuse of Process • No threats, retaliation or corrective action • False claims subject to discipline under bylaws or HR policies • AMA and Physician Concerns • Targeting of outspoken physicians • Vague policies cover a broad range of behaviors • Political or economic decisions

39. State Board of Physicians • Investigate behavioral complaints • Reporting requirements

40. Why should we care? • Communication • Team effectiveness • Quality • Medical staff issues • Employee issues • Patient satisfaction • Malpractice • Staff morale and turnover; employee satisfaction

41. Why should we care? • A survey of more than 4,500 physicians, nurses and other health professionals at about 100 community hospitals • Respondents who believe disruptive behavior is linked to: • Staff dissatisfaction: 75% • Detrimental effects on quality: 72% • Medical errors: 71% • Adverse events: 66% • Compromises in patient safety: 53% • Patient mortality: 25% “Managing Disruptive Physician Behavior: Impact on Staff Relationships and Patient Care,” Neurology, April 22, 2008

42. Why should we care? • Respondents who said they witnessed disruptive behavior by: • General surgeons: 31% • Cardiovascular surgeons: 21% • Neurosurgeons: 15% • Orthopedic surgeons: 7% • Cardiologists: 7% • Ob-gyns: 6% • Gastroenterologists: 4% • Neurologists: 4% “Managing Disruptive Physician Behavior: Impact on Staff Relationships and Patient Care,” Neurology, April 22, 2008

43. How do You Prevent It? • Code of conduct, and the process for managing disruptive behaviors, should be incorporated into the Medical Staff Bylaws • Why? • The M/S is the body with “jurisdiction” over all the physicians • The M/S already has the “back end” of the process (corrective action and hearings) needed to effectively handle complaints

44. Preventing Problems… • Code of conduct should establish a baseline through a policy statement as to what the expected norm will be • Example baseline policy statement: • The essential elements needed for safe and effective patient care include uninhibited communication, collaboration and a collegial work environment • As a result, members of the M/S shall treat each other, and all other persons in the hospital, with respect and act cooperatively, professionally and with the needs of the patient first at all times

45. Preventing Problems… • What does this accomplish? • It establishes the agreed upon foundation that communication, collaboration and collegiality are essential for good patient care • If disruptive conduct becomes an issue, these foundational elements are matters that do not need to be proven because they are a part of the M/S Bylaws and policy

46. Preventing Problems… • What does this accomplish? • Since all agree that communication, collaboration and collegiality are essential elements of good patient care then they have to be put into action • The action required is that members of the M/S must: • Treat everyone with respect and • Act cooperatively, professionally and with the needs of the patient first at all times

47. Preventing Problems… • Still need a process for dealing with the physician who is non-compliant • Recommend a single committee be assigned responsibility for initially dealing with all complaints of disruptive behavior • Reporting and documenting all complaints • IMPORTANT that administration support employees/others that complain • Failure to do so will eliminate reporting, choke off communication and hurt patient care

48. Preventing Problems… • Committee will: • Investigate complaints • Meet with physician for education and collegial efforts to resolve • Be empowered to send letters of guidance, warning or reprimand • Ensure no retaliation by physician • Make all efforts to resolve at this level

49. Preventing Problems… • Repeat offenders and serious complaints get referred by the Committee to the MEC for corrective action • Provides a direct linkage between the collegial process established and the formal corrective action process of the M/S Bylaws

50. Preventing Problems… • Policy statement, required action and process are in place • Next step is to educate the M/S on what this means, what is required of them and what will happen if they do not comply • Many ways to do this – publications, online resources, meetings, etc.