Law Feature - December 2009
Tex Med. 2009;105(12):27-31.
By Crystal Conde
In the heat of a medical emergency, passions flare. Upset over the possibility of an adverse care outcome, a physician may use abusive language directed at the clinical staff or point a finger of blame at the closest nurse.
The Texas Medical Association's Committee on Physician Health and Rehabilitation (PHR) considers any health care professional who blames or shames others for potential breakdowns in safety measures or acts in an intimidating fashion toward the medical team to be exhibiting disruptive behavior.
On the other hand, a practitioner who approaches hospital administrators with constructive criticism about a quality-of-care concern shouldn't be punished for speaking up. Although hospital leaders may not want to hear any criticism of their policies or procedures, the institution should have a process that allows clinical staff to raise concerns over patient safety and quality of care without fear of retaliation.
Clark Watts, MD, JD, a retired neurosurgeon living in Austin and a member of the Regional Education Team of the TMA PHR Committee, has seen hospital policies intended to improve patient care manipulated and used against physicians.
"Disruptive is in the eye of the beholder," Dr. Watts said.
Physicians worry that as hospital administrators implement a Joint Commission disruptive behavior standard that took effect in January, they could use the new rule to sanction and silence fervent physicians who have legitimate concerns about patient safety and quality of care.
The new standard sounds straightforward enough. The Joint Commission requires a hospital or other health care organization to develop a code of conduct that defines acceptable and disruptive or inappropriate behavior. The organizations' leaders, in turn, must create and implement a process for managing disruptive and inappropriate behaviors.
Legal experts and practicing physicians believe medical staffs have a stake in the disruptive behavior policies that health care organizations create. Dr. Watts says medical staffs must play a role in developing a code of conduct that ensures members of the clinical staff identified as disruptive or abusive get a fair hearing and access to an appeals process defined in medical staff bylaws.
While the disruptive behavior standard certainly affects physicians, it doesn't single them out. The Joint Commission requires hospitals and other health care institutions to apply the standard to all employees and members of the clinical staff.
TMA Immediate Past President Josie Williams, MD, a Joint Commission member, calls on medical staffs to develop good bylaws and policies for identifying disruptive behavior, dealing with disruptive behavior inside the medical staff, and taking appropriate action.
"The Joint Commission's disruptive behavior standard isn't aimed solely at physicians. It's a disruptive person policy. Unfortunately, it can be abused. If the medical staff deals with those issues internally before they become patient safety concerns, then we're more likely to be able to protect our patients," Dr. Williams said.
The American Medical Association and TMA have worked to arm physicians with tools they can use to help protect themselves from an abuse of the Joint Commission standard.
The AMA Model Medical Staff Code of Conduct guides medical staffs, as part of their bylaws, to adopt and develop their own code of conduct that promotes safety and quality. The model code is available free on AMA's Web site at www.ama-assn.org/go/omss.
TMA's PHR Committee recognizes that when any member of the medical team acts out in an uncharacteristically disruptive manner and the behavior becomes a pattern, an underlying medical condition may be to blame. The committee has a program to promote physician health and well-being and encourage early intervention and care of impaired physicians. (See " TMA Program Offers Help to Distressed Physicians .")
AMA attempted to delay the Joint Commission's issuance of the disruptive behavior standard. Following the AMA House of Delegates 2008 Interim Meeting, the association asked the Joint Commission to hold off on the standard for a year.
That, AMA said, would give organized medical staffs time to revise their bylaws, develop policies and procedures for managing disruptive behavior, and educate their members on the matter of quality and patient safety. TMA supported AMA's efforts, but the Joint Commission went ahead anyway.
Before publishing the new standard, the Joint Commission issued a Sentinel Event Alert in July 2008. It defines a sentinel event as "any process variation for which a recurrence would carry a significant chance of a serious adverse outcome."
In the alert, the Joint Commission says intimidating and disruptive behaviors can undermine team effectiveness and compromise patient safety. In addition, such behaviors often appear in health care professionals with positions of authority. Examples of these behaviors, the alert states, include "reluctance or refusal to answer questions, return phone calls, or pages; condescending language or voice intonation; and impatience with questions."
Indeed, Dr. Williams says disruptive behavior often leads to a total communication breakdown in which no one feels comfortable expressing concerns or asking for clarification of instructions. She says the Joint Commission developed the standard to safeguard patients whose care could suffer due to disruptive behavior by a member of the health care team.
"The Joint Commission standard is aimed at safety and was meant to address any individual inhibiting open and honest communication in the team," she said. "If an individual is intimidating to others on the team, that person won't get the information he or she needs to provide top-quality care."
Ken Davis, MD, chief medical officer of Methodist Healthcare System in San Antonio and a member of the TMA Council on Health Service Organizations, agrees. He adds that physicians should hold one another accountable in peer review for inappropriate behavior that threatens patient safety.
"We can only take good care of patients if we're working as a team. And to work as a team we have to have good communication. When there's mistrust and communication problems, patients can suffer," he said.
The Joint Commission alert targets disruptive behaviors, especially the most egregious, such as assault and other criminal acts, among health professionals. It suggests adding the zero-tolerance policy to staff bylaws, employment agreements, and administrative policies. (See " Joint Commission Suggested Actions .")
Dr. Watts says hospital staff members, particularly those who work with the medical staff and in administration, are concerned about the zero-tolerance policy.
"The definition of disruptive behavior and zero tolerance aren't in the standard. No person is perfect, so zero tolerance addresses something super human, in my opinion," he said.
The zero-tolerance system, he says, also could backfire and have a negative impact on patient care and safety.
"With the zero-tolerance system, we should all worry about the physician focused on patient care who can't control his passion over it and is therefore seen as disruptive," he said.
Jay A. Gregory, MD, a general surgeon practicing in Oklahoma and chair of the governing council of the AMA's Organized Medical Staff Section (OMSS), says the potential for a hospital or other health care organization to misuse and abuse the Joint Commission's standard is real.
"We're [AMA] finding instances of hospitals using this language to disadvantage doctors on staff who have legitimate concerns about quality and safety issues. They're being labeled as disruptive. That's not right," he said.
One way in which a hospital might use the disruptive behavior standard against a physician, Dr. Watts says, is by bringing more doctors up for peer review under the guise of disruptive behavior when the physicians are simply worried about patient care.
The potential for a hospital or other health care organization to manipulate the disruptive behavior standard against physicians is troubling. Medical staffs can take steps, however, to ensure the new standard is implemented appropriately and effectively.
Dr. Davis says Methodist Healthcare System in San Antonio took a proactive, preventive approach to disruptive behavior. The system reviewed the disruptive behavior standard and modified its medical staff bylaws to include a definition of passive disruptive behaviors. The Joint Commission's Sentinel Event Alert describes passive disruptive behavior as "refusing to perform assigned tasks or quietly exhibiting uncooperative attitudes during routine activities."
"For example, if a physician doesn't answer a page once, that's not disruptive. If it's consistent, that may be," Dr. Davis said. "We certainly also want to make sure we're addressing disruptive behavior that's egregious and active."
In addition, Methodist Healthcare System changed its protocols for raising and managing complaints about disruptive behavior. Dr. Davis says it has been working on implementing standards for effective communication and high-performing teams.
Elizabeth Snelson, JD, is a Minnesota-based attorney with extensive experience in medical staff bylaws analysis and revision, disruptive behavior policies, and peer review procedures. She says the idea that hospital medical staffs need to address disruptive behavior isn't novel. But she recognizes it's a difficult subject to broach.
"The medical staff needs to be proactive. I recommend to my clients they establish a code of conduct for the medical staff in the bylaws. Make it clear, and be careful about anything the hospital is offering. It might not be a good choice for the medical staff," she said.
She says when hospitals try to put together a policy that applies across the board to employees consistently it doesn't always fit for the medical staff.
"The medical staff isn't employed by the hospital. Medical staffs have a different relationship with the hospital, and the hospital code usually doesn't fit for them," she said.
During the more than 25 years Ms. Snelson has worked with medical staffs, she says she's seen some "ridiculous" disruptive behavior policies developed by hospitals. Examples include a policy that defines disruptive as "anything that added to the workload of the staff" and "anything that competed with hospital operations."
To guarantee representation of their best interests, it might be a good idea for medical staffs to hire their own lawyers to aid in developing fair and effective codes of conduct.
AMA policy says a medical staff's code of conduct should include in its bylaws provisions that medical staffs engage their own independent legal counsel for:
- Defining what constitutes disruptive behavior;
- Developing bylaws language that allows for freedom of expression by physicians when describing flaws within the hospital; and
- Crafting bylaws language that protects from retribution physicians who speak about quality concerns.
Ms. Snelson consulted with the AMA OMSS and general counsel in developing the AMA Model Medical Staff Code of Conduct [ PDF ], in preparation for the Joint Commission disruptive behavior standard.
The AMA's code differentiates between appropriate behavior and inappropriate behavior. Specifically, it says appropriate behavior is "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; or to engage in professional practice including practice that may be in competition with the hospital."
In contrast, inappropriate behavior is "conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive. Persistent, repeated inappropriate behavior can become a form of harassment and thereby become disruptive, and subject to treatment as disruptive behavior."
Ms. Snelson encourages medical staffs to consult AMA's model code of conduct.
"The AMA made a big step in creating a model that would help medical staffs meet the Joint Commission's requirement but also be supportive of medical staffs and protective of doctors," she said.
Dr. Gregory stresses that AMA's model code is just that - a model. He urges medical staffs to adapt the model code to meet their specific needs and circumstances.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde .
TMA Program Offers Help to Distressed Physicians
When a physician suddenly begins acting in a disruptive manner and hasn't exhibited such behavior in the past, it could signal an underlying medical condition, says Clark Watts, MD, JD, a retired neurosurgeon and a member of the Regional Education Team of the TMA Committee on Physician Health and Rehabilitation (PHR). Members of the PHR Education Team present the educational program "Disruptive Behavior in Physicians: Professional and Ethical Considerations" to medical groups throughout the state.
TMA's PHR Committee developed the program to help physicians identify signs of emotional or behavioral impairment in distressed doctors. Dr. Watts says physicians should work to identify the core cause of disruptive behavior rather than rush to discipline a troubled practitioner.
"It's important everyone around see this for what it is - that possibly the physician is not a jerk, but has some demons to deal with," Dr. Watts said.
Indeed, Elizabeth Snelson, JD, who has years of experience working with medical staffs on disruptive behavior matters, says at times when doctors act out, it's due to substance abuse or a physical, emotional, or psychiatric problem.
"It's important medical staff codes of conduct tie into any physician wellness programs for the medical staff," Ms. Snelson said. "You don't want to punish someone who's sick."
TMA's PHR educational program defines disruptive physician behavior, generally, as varying degrees of chronic malcontent involving frequent outbursts of anger, often approaching rage, toward nurses, technicians, employees, patients, and colleagues. The authors of " Problem Doctors: Is There a System-Level Solution ?" published in Annals of Internal Medicine in 2006, estimate that 3 percent to 5 percent of physicians present a disruptive behavior problem.
TMA's PHR program gives the following examples of common disruptive behaviors in physicians:
- Inappropriate display of anger or resentment: intimidation; abusive language; blaming or shaming others for possible adverse care outcomes; sarcasm or cynicism; and threats of violence, retribution, or litigation.
- Inappropriate words or actions directed toward another person: sexual comments or innuendos; sexual harassment; seductive, aggressive, or assaulting behavior; racial, ethnic, or socioeconomic slurs; and lack of regard for personal comfort and dignity of others.
- Inappropriate response to patient needs or staff requests: late or inappropriate replies to pages or calls; unprofessional demeanor or conduct; uncooperative, defiant approach to problems; and rigid, inflexible responses to requests for assistance or cooperation.
Consequences of disruptive behavior include diverting a physician's attention from patient care, resulting in errors in clinical judgment and performance; decreased workplace morale; increased workplace stress; inordinate staff time devoted to appeasing or avoiding physicians displaying disruptive behavior; and increased potential for litigation.
An example of appropriate behavior cited in the program is offering criticism in good faith, with the aim of improving patient care.
"Disruptive Behavior in Physicians: Professional and Ethical Considerations" offers practical guidelines to address behavioral problems. Physicians can earn 1 continuing medical education (CME) credit for completing the educational activity, which is designated as ethics and/or professional responsibility education.
The PHR Committee also offers " Psychiatric Illness and Disruptive Behavior in Physicians ," available as a home study course and on the TMA Web site.
Physicians who complete the course earn 2 CME credits. "Psychiatric Illness and Disruptive Behavior in Physicians" covers common psychiatric illnesses in physicians, mood and anxiety disorders, recognition of potential for suicide, and addressing disruptive behavior in physicians.
To inquire about PHR Committee educational programs, contact Linda Kuhn, TMA Physician Health and Rehabilitation program manager, by calling (800) 880-1300, ext. 1342, or (512) 370-1342, or by e-mailing Linda Kuhn .
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Joint Commission Suggested Actions
- Educate all team members, both physicians and nonphysician staff, on appropriate professional behavior defined by the organization's code of conduct. The code and education should emphasize respect. Include training in basic business etiquette and people skills.
- Hold all team members accountable for modeling desirable behaviors, and enforce the code consistently and equitably among all staff in a positive fashion through reinforcement as well as punishment.
- Develop and implement policies and procedures/processes appropriate for the organization that address:
- "Zero tolerance" of intimidating and/or disruptive behaviors, especially the most egregious instances of disruptive behavior, such as assault and other criminal acts. Incorporate the zero-tolerance policy into medical staff bylaws and employment agreements as well as administrative policies.
- Medical staff policies regarding intimidating and/or disruptive behaviors of physicians within a health care organization that are complementary and support policies in the organization for nonphysician staff.
- Reducing fear of intimidation or retribution and protecting those who report or cooperate in the investigation of intimidating, disruptive, and other unprofessional behavior. Nonretaliation clauses should be included in all policy statements that address disruptive behaviors.
- Response to patients and/or their families who are involved in or witness intimidating and/or disruptive behaviors. The response should include hearing and empathizing with their concerns, thanking them for sharing those concerns, and apologizing.
- How and when to begin disciplinary actions (such as suspension, termination, loss of clinical privileges, reports to professional licensure bodies).
- Establish an organizational process for addressing intimidating and disruptive behaviors that solicits and integrates substantial input from an interprofessional team, including representation of medical and nursing staff, administrators, and other employees.
- Develop skills-based training and coaching for all leaders and managers in relationship-building and collaborative practice, including skills for giving feedback on unprofessional behavior, and conflict resolution.
- Develop a system to assess staff perceptions of the seriousness and extent of instances of unprofessional behavior and the risk of harm to patients.
- Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior. Include ombudsman services and patient advocates, both of which provide important feedback from patients and families who may experience intimidating or disruptive behavior from health professionals. Monitor system effectiveness through regular surveys, focus groups, peer and team member evaluations, or other methods. Have multiple and specific strategies to learn whether intimidating or disruptive behaviors exist or recur.
- Support surveillance with tiered, nonconfrontational interventional strategies, starting with informal "cup of coffee" conversations directly addressing the problem and moving toward detailed action plans and progressive discipline, if patterns persist. These interventions should initially be nonadversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety. Use mediators and conflict coaches when needed.
- Conduct all interventions with an organizational commitment to the health and well-being of all staff, with adequate resources to support individuals whose behavior is caused or influenced by physical or mental health pathologies.
- Encourage interprofessional dialogues across a variety of forums as a proactive way of addressing ongoing conflicts, overcoming them, and moving forward through improved collaboration and communication.
- Document all attempts to address intimidating and disruptive behaviors.
Source: "Behaviors That Undermine a Culture of Safety," Joint Commission Sentinel Event Alert , July 9, 2008.
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