Holland & Hart Healthcare Law Blog

“Barking” Radiologist Bites Hospital for $4 Million Dollars.

On March 4, 2008, this blog published a story about St. James Healthcare in Butte, Montana and its having obtained an injunction against a radiologist, Dr. Jesse Cole, enjoining him from allegedly threatening staff and contacting prospective radiologists being recruited to St. James. The article was entitled “Montana Court Muzzles Barking Radiologist.”  Well, the tide has turned and Dr. Cole has taken a bite out of the hospital and its parent company, the Sisters of Charity of Leavenworth Health System to the tune of $4 Million dollars.

 

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.

 

“Jumping Jelly Beans” and Surgeon’s “very bad day” lead to Summary Suspension and NPDB Report.

 

“Pitching a fit”  in a hospital operating room can land a  surgeon in the National Practitioner Data Bank. In Leal, M.D. v. Secretary, U.S. Dept. of HHS issued on September 22, 1010, the Eleventh Circuit Court of Appeals affirmed the decision of the trial court upholding the determination by the Secretary of HHS that Dr. Leal’s 60 day suspension for disruptive conduct was accurately reported and required to be reported to the data bank. When notified that there would be a delay in the start time for a urological surgery case, Dr. Leal broke a telephone, shattered the glass on a copier, shoved a metal cart into the OR doors causing damage, threw jelly beans down the hallway, threw a patient chart on the floor and verbally abused a nurse. In his review petition to the Secretary he suggested that he had merely been clumsy, a portrayal the Court was reluctant to accept from a urological surgeon.

 

THE GREAT NURSE ANESTHETIST “OPT OUT” DEBATE

 

 

Under Medicare rules Certified Registered Nurse Anesthetists (“CRNAs”) must be supervised by a physician, typically an anesthesiologists or perhaps by a surgeon in rural areas where anesthesiologists are not available.  Medicare has a state “opt out” provision which permits CRNAs to practice without supervision of a physician.  To date, 15 states have chosen to opt out and others like Colorado are considering doing the same.  Anesthesiologists are compensated for supervising CRNAs and can supervise up to 3 at a time because they are not required to be in the same room.

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.

    

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.

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.

Getting Out of the National Practitioner Data Bank, Part I

Once a physician or other health care provider is reported to the National Practitioner Data Bank, he or she is normally there for life. It is extremely difficult to get out. Some physicians have remarked that it is like having a "record," which like in the criminal context can result in the denial of hospital privileges, denial of jobs and potentially the destruction of careers. All hospitals are required to access the data bank reports on physicians every two years during hospital privieges re-certifications. State disciplinary actions are required to be reported as well as malpractrice insurance payments (no matter the amount). Peer review discipline is also reportable, although their are some limited exceptions.