QUESTION:   We have a practitioner on the Medical Staff with a long, well-documented history of behavior problems.  We have tried to work with him collegially – and not just once.  Our file is, no kidding, 300+ pages and includes conversations, memos, reprimands, “agreements,” mentorship arrangements, coaching, and more.  Nothing works!  Truth be told, everyone is fed up, but this practitioner has a dual diagnosis of PTSD and alcoholism (in recovery now).  Is there anything we can do without it constituting disability discrimination?

ANSWER:       A hospital and/or its Medical Staff leaders are well within their authority to take action on inappropriate/ unprofessional conduct even when the individual displaying that conduct is suffering from a legally-protected disability (and even when the disability may be contributing to the individual’s undesirable behaviors).

Before taking adverse professional review action (e.g. suspension, revocation) against the practitioner, consider:

• Would we take the same action against any other (non-disabled) practitioner who displayed these behaviors?
• Are the objectionable behaviors clearly articulated in our policies and procedures, so that the practitioner was on notice that this type of behavior is not acceptable at our workplace?
• Might a reasonable accommodation help this provider to control his/her health condition, so that he/she can come into compliance with our policies (by modifying his/her behaviors)? Has the practitioner asked for an accommodation?
• Have we exhausted all collegial efforts that could reasonably be used to try to help the practitioner to modify his/her conduct and voluntarily come into compliance?

The Americans with Disabilities Act and other anti-discrimination laws (which in some jurisdictions apply to independent contractors, such as Medical Staff members) provide important protections to the disabled, to help ensure that disabled individuals who are able to work are not prevented from doing so because of unsupported presumptions about their conditions or plain bigotry.  However, those laws do not require employers and workplaces to continue to tolerate conduct that violates internal policies simply because the individual is disabled.

Many Medical Staff leaders worry about being sued for discrimination if they pursue peer review activity with respect to a colleague who has a known disability.  While there is always the risk of a lawsuit (litigiousness seems to be a growing hobby!), know that if the conduct of the practitioner has been documented, clearly violates policy, and has been addressed in accordance with your professionalism or peer review process, the risk of liability from moving forward is low.  And the improvement to the workplace is sure to be exponential.

Of course, it’s always a good idea to consult with legal counsel when considering an adverse professional review action, as they can help you to evaluate your documentation and compliance with internal policies – to ensure not only your defense against future claims, but also to ensure that any missteps that may have occurred during the peer review process are identified and corrected now, before any action is taken.