QUESTION:
We have an employed surgeon who recently had a serious adverse patient outcome in the operating room.  He has also been acting out by shouting at nurses and throwing objects. Should we precautionarily suspend him pending an investigation?

ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
You could do that as long as you follow the procedures in the medical staff bylaws or policies.  But if the physician is an employee of the hospital or a physician group subsidiary of the health system, an easier and more effective way to handle this problem would be to simply direct the physician not to perform the procedure that led to the adverse outcome and/or stop coming to work until the matter can be fully reviewed.  This would avoid having to conduct a hasty investigation and possibly give the physician a right to a hearing as some medical staff bylaws require.

Employers generally have the ability to direct an employee not to perform certain functions or procedures.  However, it would always be a good idea to put something like this in a physician employment contract to make it even more clear:  “Employer may, in its discretion, direct Physician not to perform any particular procedure or services.”

More often than not, situations like the one you described might lead to a separation agreement.  The Data Bank Guidebook makes it clear that if a physician’s clinical privileges terminate because the physician’s employment terminates, a report does not have to be made to the Data Bank.  (Be sure to check your state laws to see if a report has to be made to the state medical practice board.) The separation agreement can contain mutual releases and also address what can be said to third parties in the future, but don’t try this at home without close adult legal supervision.  As the Hoedt case discussed above shows, releases can be challenged so you’ll want to make sure they’re airtight.

If you have a quick question about this, e-mail Dan Mulholland at dmulholland@hortyspringer.com.