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Physicians Protect Professionalism

Here's what it takes to win this game of Jeopardy By Elizabeth A. Snelson, JD

A particular hallmark of professionalism is how physicians achieve the standards set by their profession. In the hospital setting, the standards are set by the medical staff. Because physicians are subject to intense regulation by state and federal governments, complicated by fiscal pressures, contractual complications, and liability exposure inherent to the practice of medicine in hospitals, careful consideration must be given to the legal issues involved.

Professional conduct is an area especially fraught with legal complications. That inappropriate behavior can impede patient care or even violate sexual harassment and other employee protection laws is undeniable. Equally established is the high cost of any accusation of inappropriate behavior, paid by the physician, medical staff, hospital, and patient, through disruption of care, time-consuming processes, loss of business, loss of trust, destruction of professional reputation, and destruction of one’s career.

Several high-impact complications also make possible—even inevitable—the abuse of the “unprofessional” label. Doctors who complain about nursing mistakes and hospital administrators’ actions, or compete with hospital-owned practices, or speak up at public meetings or to surveyors, unfortunately can find themselves at the wrong end of a “peer review” or summary suspension notice. Colleagues divided by competing physician-alignment schemes may trigger investigations of those other guys they no longer need or are permitted to collaborate with. Overwhelmed or overly sensitive limited-licensed professionals may retaliate for real or perceived slights by filing anonymous complaints that must be taken seriously for any number of risk-management reasons. Misunderstood cultural differences are inflamed into reportable deficiencies.

Because professional conduct matters are so complicated, it does not take deliberate misuse to result in the same sad ending. Untrained physician leaders, overworked colleagues, and inexperienced administrators can over-react, under-respond, or unwittingly follow poorly drafted procedures, or, in the absence of even those, improvise their way to hurting both patient care and the physician's reputation, all with the best of intentions. Lawyers who are unaware of medical staff operations base their advice on the latest employment law rules applicable to the most up-to-date widget factory. Substance abuse is acted upon anachronistically as a willful moral failing instead of the true illness that it is.

This is no time for amateurs, but frequently the medical staff has failed to maintain its bylaws and rules to handle unpleasant business that no one wants to think about, much less plan for. And there are, in fact, real problems out there. Addicts steal drugs. Handicaps conceal impairment. Jerks harass women. Administrators punish competitors. Doctors make mistakes—even, or especially, in the hospital. All these issues must be anticipated and addressed by the medical staff organization to assure professionalism guides its response and achieves the goal of patient protection.

Here’s what it takes to win this particular game of Jeopardy:

Work to be rid of the “disruptive physician”—both the term and the person. Even the accusation of “disruptive behavior” can be so off-putting to future employers or medical staff committees that the Joint Commission recently removed the term from its standards, appropriately orienting quality improvement efforts towards eliminating behaviors that “undermine a culture of safety.”

Work up a medical staff code of conduct that meets legal and accreditation requirements but does not impair its own effectiveness by criminalizing physicians who are advocating for patient care or providing good service to patients but failing to profit the hospital. Put it in the medical staff bylaws so it is enforceable and adopted by the vote of the medical staff.

Work to treat rather than discipline professionals who are suffering from impairment due to illness or substance abuse. Punishing the sick is inherently unprofessional.

Work to clarify the rules that cause the most fallout, such as emergency call and coverage for unsponsored patients. Establish conflict management processes that require the medical staff to solve its problems rather than default to the hospital board.

Work with a medical staff lawyer (not the hospital’s lawyer, but the medical staff’s lawyer) to update medical staff bylaws, rules and regulations and other documents. It is these documents—not the hospital bylaws, but the medical staff bylaws—where professionalism is protected and promoted.

“Work” is the operative term here, but the win will be solving conduct issues by the professionals—yourselves.

Libby Snelson, JD, is legal counsel to Medical Staff PLLC. She may be reached at www.

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