Holland & Hart Healthcare Law Blog

HOSPITAL CONFLICT RESOLUTION POLICIES.

 

Most hospitals today have adopted policies for dealing with disruptive conduct within the hospital setting.  Most of these policies relate to forms of harassment, intimidation and violence.  There are of course the omnipresent “disruptive physician” policies that relate to physicians acting out in unprofessional manners like berating staff and throwing hissy fits generally.  There are many more subtle forms of conflict between hospital administration, its medical staff, its medical staff leadership and its governing body. The Joint Commission Standards have evolved with a growing focus on the resolution of conflict at all levels of a hospital organization, with the understanding that all dissension has the potential to affect patient safety and outcomes if left to fester.

 

JOINT COMMISSION MANDATES CHANGES IN HOSPITAL/MEDICAL STAFF COMMUNICATION EFFECTIVE MARCH 31, 2011.

 

In less than 6 months, March 31, 2011 to be exact, the new Joint Commission Standard for hospital medical staff bylaws, MS 01.01.01, will be implemented. The focus of the new standard is to improve communication and coordination among a hospital’s governing body, its medical executive committee and the hospital medical staff. The Joint Commission is actively sponsoring a more collaborative relationship and more definitive accountability among the groups by requiring certain processes to be included in the medical staff bylaws, in particularly those contained in Elements of Performance 12 -36 which are mandated.

 

The standards require greater transparency in process including, among others,  the method of selection, election and removing a member of the MEC by the medical staff ( EP 21), how the medical staff can remove MEC authority (EP 20) and the process for amending medical staff rules, regulations and policies (EP 25), the inclusion of peer review processes in the bylaws (EP 30, 31), and the delineation of qualifications and specific powers and responsibilities of any medical staff department.

 

EP 11 requires a process for the resolution of conflict between the medical staff, the MEC and or the Governing Body of a hospital. The Joint Commission in adopting MS 01.01.01 recognizes that efficient and effective patient care and safety require the effective interplay between these constituent entities within the hospital and that there must be some reasonable process to stimulate communication, allocate responsibility and overcome dysfunctional behavior in the management of hospitals. SEE www.jointcommission.org.

 

PROVIDER INTEGRATION AND THE ADVENT OF ACCOUNTABLE CARE ORGANIZATIONS (“ACOs”)

    Can financial incentives and physician practice structures be enlisted o enhance the quality and reduce the cost of healthcare?  Health Care Reform supporters believe they can and the new Patient Protection and Affordable Care Act ("PPACA")  signed into law by the President recently,  provides incentives for the development of ACOs for Medicare patients. ACOs have been described as HMO’s on steroids, but many wonder whether they will meet the same fate as the managed care systems of the past that focused on blind leveraged cost reductions and favorable beneficiary selection to achieve profits.

    

INTRACTABLE CONFLICT AND THE FALL OF RESPECT

The bruising and polarizing debate over health care reform reflects a broader societal infection of contempt and distrust generally among politicians, professionals and ordinary citizens, among and between any group of people whose collective identity and self esteem is tied to one’s link to one group and related to distain for another. All intractable conflicts ranging from the halls of Congress to the  corridors of hospitals have at their root a sense of alienation and fear arising from the absence of respect in the interactions of people.  The perceived lack of respect from other affects our core sense of self esteem and feeds an anger and reciprocal hostility.  As Lord Chesterfield said in one of his many letters to his son, “- an insult is never forgiven.”

There are many theories advanced for the dissolution of intractable conflict and all of them at one level or another seek the restoration of respect and trust between people and groups. Fundamentally it requires the restoration of transparency, trust and interlocking respect. The communication of respect starts at home with one’s own attitude toward others - behaving like ladies and gentlemen.  A “gentleman” has been defined as  “a man who can disagree without being disagreeable.” One can avoid being disagreeable by being open to receive and to respect the views and perceptions of others and honoring the motivations and experiences giving rise to them. One doesn’t need to agree to avoid being disagreeable.  

The late Senator Kennedy had a talent for forging unlikely alliances with colleagues with substantially different points of view.  He was able to accomplish much by maintaining respect for the individuals by listening to and acknowledging their positions with respect while disagreeing with their points of view.  He was transparent in his beliefs and his objectives. He radiated respect for others and received it in return. 

There are a number of psychological principals at play fueling the power of the extension of unilateral respect.  Cognitive dissonance makes it difficult to disrespect someone who is extending respect to you.  The human value of reciprocity makes one want to respond in kind to the attitude others project one oneself.  There is a human need to reduce guilt that can arise from the mistreatment of others who do not respond in kind. There is also the need for internal consistency, to act like a gentleman when won is approached as a gentleman. Not all of these principals are successful all of the time but over time they apply considerable leverage.

Getting others to play nice starts with a single step, the expression of respect, the willingness to know and understand those with whom we disagree and to express our esteem for them, even if we cannot accept their views. Emerson said that “[m]en are respectable only as they respect.”  It perhaps starts with honoring each other’s dignity. It  can generate an enormous return and costs very little. Frank Barron hit the mark, 

“Never take a person’s dignity; it is worth everything to them and nothing to you.”

Just ask Aretha Franklin.

DISRUPTIVE CONDUCT: DR. BADRI’S BAD BEHAVIOR

“Disruptive conduct” by a physician as a basis for suspension of medical staff privileges is a standard that is sometimes abused because of the elasticity of its application to conduct which is merely disagreeable or politically insensitive. In the case of Badri v. Huron Hospital, et al, Case No. 1:08cv 1913 (N.D. Ohio, 2010) a federal district judge granted summary judgment against a plaintiff physician whose surgical privileges were suspended by the hospital following an extraordinary series of admittedly inappropriate, offensive and abusive behavior and repeated violations of the hospital’s code of conduct. 

A sample includes the following described by the  court.

‘On May 13, 2004, Dr. Badri was heard complaining in a loud voice that “ in order to get promoted around here you have to screw physicians.” Dr. Badri was later observed standing behind Dr. Ravakhoh and motioning as if to “stab him in the back and making a very rude motion as if to have something inserted into Dr. Ravakhoh”s behind.”’

Following his dismissal Dr.Badri filed a federal lawsuit against the hospital and members of its medical staff claiming that his misconduct was the result of dependency on steroids and other prescription drugs and his emotional impairment all resulting from an automobile accident in 2002.

MONTANA SUPREME COURT AFFIRMS INJUNCTION AGAINST HOSPITAL SUSPENSION OF PHYSICIAN WHO DENIED IT ACCESS TO HIS FAMILY’S PRIVATE MEDICAL RECORDS.

 The Montana Supreme Court affirmed the issuance of a preliminary injunction restraining Community Medical Center, a hospital in Missoula, Montana for suspending the medical staff privileges of a hospitalist whose only offense was to refuse to grant unrestricted access to his family’s medical records to a hospital subcommittee. The physician designated as “Dr. Doe,” in the case of John Doe, M.D. v. Community Medical Center, Inc., DA08-0397, decided on November 24, 2009, asserted that that Community Medical Center  (“CMC”) breached the terms of its contract with him embodied in CMC’s medical staff bylaws and policies by summarily suspending his privileges with no demonstration of “ a substantial likelihood of imminent impairment of the health or safety of any patient, perspective patient, employee or other person present in the medical center” –the sole designated basis for summary suspension at CMC.

OREGON FINDS EXISTENCE OF PHYSICIAN/PATIENT RELATIONSHIP IN NEUROSURGEON’S TELEPHONE CONSULT WITH EMERGENCY ROOM.

 In the absence of a contract or direct physician/patient contact, when does a telephone consult ripen into a professional relationship?  The general rule seems to be that in the absence of some connection with the patient, merely listening to another physician’s description of a patient’s symptoms and offering a professional opinion regarding the proper course of treatment is not enough to imply a physician’s consent to a physician-patient relationship with the patient. The consulted physician is generally considered to be offering only informal assistance to a colleague. Se, e.g., Reynolds v. Decatur Memorial Hospital, 660 NE. 2d 235(1996).

10th Circuit Affirms Summary Dismissal of Nephrologists’ Monopolization Shootout in the Streets of Durango.

Dr. Mark F. Bevan has a thriving nephrology practice in Farmington, New Mexico. Mercy Medical Center of nearby Durango, Colorado repeatedly invited him to provide kidney dialysis and other nephrology  services in’ Durango, which he declined.   The hospital then with the financial support of the  Southern Ute Indian Tribe hired a different nephrologist to practice his craft in Durango. Under the pre-existing bylaws of the Hospital, the hiring of the new doctor automatically resulted in the cancellation of Dr. Bevan’s consulting privileges at the hospital. Consulting privileges were designed for the purpose of filling gaps in physician coverage. He was left with the status of being a member of the consulting staff. He then applied for active staff privileges at the hospital , but found it difficult to ethically meet the requirement in the by-laws that he reside within 30 minutes of the hospital. The hospital, in an attempt to pre-empt and residential success by Dr. Bevan, granted the new physician the exclusive right to practice nephrology at the hospital. Dr. Bevan responded with a claim of monopolization and attempted monopolization of the nephrology physician services in Durango in violation of Section 2 of the Sherman Act.

 

HCQIA IMMUNITY CAN APPLY TO PEER REVIEW OF PRIVATE PHYSICIAN CONDUCT.

In the recent case of Moore,, MD v. Williamsburg Regional Hospital et al., No. 07-1966 (4th Cir. 2009), a federal court of appeals addressed the issue of how far a hospital peer review can go in considering the private conduct of a physician in suspending his or her hospital privileges.  The physician, Dr. Moore is a general surgeon who performs surgery on both adults and children in his practice.  Dr. Moore’s private left spilled over into his professional life in a tragic and unresolved way. 

Getting Out of the National Practitioner Data Bank - Part II

Getting out of the NPDB is perhaps equivalent to escaping from Alcatraz – a near impossible feat. Yet there are those who have accomplished it. The easiest way of course is to convince the hospital or other reporting entity that the report was improvidently submitted and that it should be retracted and withdrawn as they are able to do. The other option is to convince the Secretary of HHS that based on the administrative record, the submission was in error and not reportable under the criteria for reporting set out in the NPDB Guidebook. If the Secretary persists in affirming the appropriateness of the report, the only remaining recourse is the filing of a judicial review action in a federal court under the federal Administrative Procedure Act, 5 U.S.C. §701 et seq., where you must establish that the decision by the Secretary was "arbitrary and capricious." One of the most contentions areas of data bank reporting is the obligation to report a physician who resigns or withdraws an application for privileges in order to avoid a peer review "investigation" or discipline. Two successful judicial review cases in which doctors have "escaped" from the NPDB are instructive.