Leadership Council

July 18, 2024

Posted on by Courtney Patterson

QUESTION:
We asked a physician to attend a Leadership Council (a small group of Medical Staff leaders) meeting to provide input about some recent behavioral concerns we have had about them. The physician agreed, but only if they can bring their attorney. Our policies don’t address a provider’s ability to bring an attorney to meetings like this, so do we have to let the attorney attend the meeting?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY HALA MOUZAFFAR
Nope. In this scenario, you do not have a legal obligation to permit an attorney to attend. The meeting is not a hearing where you would be required to allow the physician’s attorney to be present. It is simply an opportunity for the hospital and physician to get together and discuss the concerns in a collegial manner.

The physician should feel free to consult an attorney, have the attorney accompany them to the hospital, etc., but once the doors shut to that meeting, you do not have an obligation to allow that attorney to be on the other side of them accompanying the physician.

Moving forward, there are some ways you can edit your policies, so you avoid this kind of conundrum in the future. Hospital policies should make it clear that in collegial and educational meetings, like the one you described, no counsel representing the practitioner, medical staff, or hospital will be permitted to be present. Putting something like this in writing gives you a clear place you can point to and say, “sorry our policy doesn’t allow that.”  By not allowing attorneys for any party, it also creates an equal expectation for all parties involved.  And, let’s face it, keeping attorneys out of these collegial/education conversations keeps them just that – collegial and educational. Once you add attorneys to the mix, that heat dial moves up whether you intend it to or not because things just feel more confrontational.

If you have a quick question about this, e-mail Hala Mouzaffar at hmouzaffar@hortyspringer.com.

September 14, 2023

Posted on by Courtney Patterson

QUESTION:
Our Medical Staff Leadership Council intends to ask a physician to agree to a voluntary Performance Improvement Plan (“PIP”) to address behavioral concerns. Do you have any tips for drafting the PIP?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes!  A PIP is much more likely to be successful if the letter to the physician describing the PIP is carefully drafted and addresses certain issues.  Here are a few thoughts:

  1. Details matter.  The Leadership Council should identify exactly what it wants the physician to do and then include those specific expectations in the PIP.  For example, it’s not enough to say “complete additional EMR training.”  The PIP should identify what type of EMR training, how many hours, the deadline for completion, and how completion will be documented.  The key point is that the requirements should be clear so everyone knows what’s expected.
  1. Identify appropriate PIP elements to address the behavioral concern. Different types of concerns benefit from different types of training.  For example, a physician who has difficulty interacting with patients may benefit from different training than a physician who is abrasive to staff.  Fortunately, the number of training options has increased significantly in recent years, so it’s generally possible to find a program that fits your specific needs.  Here’s a link to a 45-page document from the Federation of State Medical Boards that describes various training options:  https://www.fsmb.org/siteassets/spex/pdfs/remedprog.pdf.  If your hospital is a member of a health system, you could also touch base with other hospitals and ask for their experience with different training options.
  1. Identify a process for reviewing and addressing subsequent instances of inappropriate behavior, especially if there is a pattern of concerns with the physician. The PIP could identify the fact-finding that will occur (which will always include obtaining the physician’s input about any future allegations) and then describe the options the Leadership Council has for dealing with violations of the PIP.  You want to give the Leadership Council flexibility to deal with less significant violations of the PIP; for example, through a collegial discussion.  But if a “Formal Violation” of the PIP occurs, you could outline the progressive steps that will be used for the first, second, and third Formal Violations (for example, final letter of warning, three days of off-site training at the physician’s expense, 360 degree review, agreement to not exercise privileges for 10 days, referral to the Medical Executive Committee for review under the Medical Staff Bylaws, etc.).
  1. Think about the duration of the PIP. Particularly if it describes specific consequences for inappropriate behavior, will those consequences be in effect for six months, 12 months, or indefinitely?  Will the number of “Formal Violations” be re-set to zero after a certain amount of time has passed without a violation?
  1. Use a proper tone, one that is as positive as possible. A PIP for behavior may need to be firm to convey the expectations for behavior going forward.  Still, the PIP should be collegial and explain why appropriate behavior benefits patient care.  The PIP should not sound scolding or punitive.

If you have a quick question about this topic, feel free to e-mail Phil Zarone at pzarone@hortyspringer.com.  For more information, join us at the Peer Review Clinic in Phoenix from November 16-18, 2023.

June 8, 2023

Posted on by Courtney Patterson

QUESTION:
An independent member of our Medical Staff has a long history of unprofessional conduct.  Our Leadership Council addressed various complaints using progressive steps under the Professionalism Policy, such as educational letters and collegial meetings.  We even tried sending the physician to an on-site educational course on behavior with no success.  Before we refer him to the Medical Executive Committee for its review under the Bylaws, are there any other options we could try?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY PHIL ZARONE:
Yes.  A “personal code of conduct” might be successful where other efforts have failed.  A personal code of conduct outlines specific expectations for behavior and, more importantly, specific consequences for failing to meet those expectations.

With respect to expectations, a personal code of conduct may simply require compliance with the standards for behavior set forth in the Professionalism Policy.  (To assist with enforcement of the personal code of conduct, it’s very helpful if the Professionalism Policy includes specific examples of inappropriate behavior.)  Additional expectations might include periodic mentoring meetings with Medical Staff leaders, 360 reviews, or additional training.

The personal code of conduct could then describe the process that will be followed to review the facts if an additional concern is raised about the physician’s behavior.  This fact-finding process may include steps in addition to those set forth in the Professionalism Policy.

The personal code of conduct could then outline the consequences if the Leadership Council determines that there has been a “formal violation.”  The Leadership Council has the flexibility to define these consequences in any reasonable manner.  For example, the first confirmed violation could result in a final letter of warning, the second could result in the physician not exercising his or her clinical privileges for five or 10 days, and the third could result in a referral to the Medical Executive Committee for a formal investigation under the Medical Staff Bylaws.  The personal code of conduct could be indefinite or have a fixed term, and the number of formal violations could be re-set to zero if the physician goes “x” months/years without a violation.

It’s important to include other language in the personal code of conduct, such as a statement that truly egregious behavior can be referred immediately to the Medical Executive Committee.

In our experience, two formal violations are not common and three formal violations are very rare.  As long as the Leadership Council is willing to enforce personal codes of conduct, they can be an effective tool for physician leaders who are attempting to deal with long-term inappropriate behavior.

If you have a quick question about this, e-mail Phil Zarone at PZarone@hortyspringer.com.

December 9, 2021

Posted on by Courtney Patterson

QUESTION:
Early on during the pandemic, stress got the best of a well-thought-of member of our Medical Staff, resulting in the Leadership Council issuing this physician a letter of reprimand, a copy of which went into his file.  The issue never became a problem again and recently he asked if we could remove the letter from his file, as he is worried this could come back to haunt him if he decides to seek opportunities elsewhere.  Is it okay honor his request?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY IAN DONALDSON:
While we can understand this individual’s frustrations about having negative information in his file, there are a number of reasons why we recommend thinking twice before removing anything from a practitioner’s confidential file.

First, removing documentation from the file may create insurance coverage issues.  Some hospitals that we work with have been told by their professional liability carriers that removing information from a practitioner’s file would violate the hospital’s condition of coverage because it would hinder the carrier’s ability to defend any claims involving that practitioner.  Another reason we’ve found is that in those rare instances where an MEC does have to take an adverse action against a physician, it is often based on a history or pattern of conduct.  It is extremely difficult to justify such an action if the documentation of these past events is no longer available.  Similarly, removal of such documentation hampers the institutional memory of the hospital, making it more difficult for future Medical Staff leaders to fully understand past issues and the steps that were taken to mend them.

It is a good idea to have access to confidential files policy in place, so your leadership team can anticipate these types of requests and how they will be handled when they come up.  In the meantime, it may be helpful to explain why you can’t honor this particular physician’s request (based on the reasons above), but then invite him to provide a written update or response to the original concern that will be made a part of his file as well.

July 15

Posted on by Courtney Patterson

 

QUESTION:
“A physician recently smelled of alcohol and was behaving oddly while conducting rounds.  The physician refused a screening test, so the Medical Staff leadership imposed a precautionary suspension.  Is there a better way?”

ANSWER:
Yes!  First, all hospitals should have a Practitioner Health Policy to govern health issues affecting privileged practitioners.  Such a policy is required if your hospital is accredited by the Joint Commission, and it’s a best practice in any event.  A Practitioner Health Policy allows Medical Staff leaders to identify practices and procedures that work in your setting, and can then be applied in a consistent manner (which helps to avoid allegations of discrimination).

Your Practitioner Health Policy should have a section dealing with responses to immediate threats, such as the one you describe above.  The first step is for the Policy to identify who may respond to handle such situations.  We recommend that a broad group of Medical Staff leaders be authorized to take the steps described in the Policy, to ensure that someone is always available.

The Policy should then identify who, and how many, individuals may request a practitioner to undergo a screening test to identify a possible impairment.  Ideally, two Medical Staff leaders will make such a decision (or a Medical Staff leader and an administrator such as the CMO).  Having two individuals involved in the decision protects them from allegations of bias, and should enhance the credibility of the process in the eyes of the practitioner under review.

To answer your specific question, if the practitioner refuses to cooperate with a screening test, the Practitioner Health Policy should say that the individual automatically relinquishes clinical privileges pending further review by the Leadership Council (or whatever committee handles health issues).  This is not a permanent fix – potentially impaired practitioners would not be permitted to simply move out of town and subsequently harm themselves or others.  Instead, it’s a method of buying time to persuade the practitioner to cooperate with the review process without imposing a suspension.  A suspension causes the situation to feel more confrontational, which sends the wrong message when the goal is to help a colleague.  A suspension also starts the clock ticking for hearings and NPDB reports, which can detract from efforts to constructively deal with the health issue.

For more information about how to deal with practitioner health issues, please join us in Orlando, FL from September 19 – 21, 2021 for the Peer Review Clinic. For more information, click here.

January 31, 2019

Posted on by hortyspringer

QUESTION:        When a concern is raised about the behavior of a Medical Staff member, we’ve typically referred it to our department chairs. The chairs give it their best shot, but we were wondering if there’s a better way?

ANSWER:            Yes! There are many drawbacks to asking a single individual — regardless of who that person is — to deal with difficult behavioral matters.

First, the department chair is often either a competitor or partner of the physician under review. This can make it difficult for the department chair regardless of whether an actual “conflict of interest” exists.

Also, depending on the size of a department, the department chair may not deal with many behavioral concerns. As a result, the chair never obtains enough experience to become truly comfortable addressing behavioral issues.

Individual department chairs have no built-in opportunity to brainstorm about the issues under review. If they want to seek assistance, they have to find another physician leader and bring that person up to speed.

Thus, we recommend that a core group of physician leaders — referred to as a Leadership Council — handle behavioral concerns. The Leadership Council might be comprised of the Chief of Staff, Chair of the Professional Practice Evaluation/Peer Review Committee, and Chief Medical Officer. The advantages of using a Leadership Council to handle behavioral concerns include:

  • consistency across departments (no more variability based on the personality of individual department chairs);
  • easier to avoid conflicts of interest;
  • permits department chairs to preserve their working relationships with physicians under review;
  • expertise through experience;
  • emphasizes the importance of the issue and enhances the credibility of the physician leadership because a group of leaders – not a single person – is speaking with the physician under review; and
  • problems are discussed by a small group, which promotes the exchange and development of ideas.

For more information on Leadership Councils and other important topics, please join us at Disney’s Yacht and Beach Club Resort in Orlando, FL on March 7-9, 2019 for The Peer Review Clinic.

December 13, 2018

Posted on by jwilbert

QUESTION:        We recently asked a physician to meet with our Leadership Council (a small group of Medical Staff leaders) to provide input regarding a concern about his behavior.  He says he’ll be happy to attend the meeting, but only if accompanied by his attorney.  Our policies do not address this issue – do we have to let the attorney attend the meeting?

 

ANSWER:            No.  The meeting is not a hearing.  It’s simply an opportunity for physicians to talk with one another in a collegial manner.  There’s no legal obligation to permit an attorney to attend, and the presence of an attorney would likely make the process less effective by making it seem more confrontational than it needs to be.

It’s much easier to address this situation when the applicable policy includes language such as the following:

  • To promote the collegial and educational objectives of this Policy, all discussions and meetings with a Practitioner shall generally involve only the Practitioner and the appropriate Medical Staff Leaders and Hospital personnel.  No counsel representing the Practitioner, Medical Staff or Hospital shall attend any of these meetings.

Of course, the physician may consult an attorney prior to the meeting (and the physician shouldn’t be discouraged from doing so).  The attorney can even accompany the physician to the hospital and wait in an appropriate location, if the physician insists.  But there’s no obligation to allow the attorney to accompany the physician during the meeting.

For more ideas on handling difficult peer review issues, check out our Peer Review Clinic.

July 20, 2017

Posted on by hortyspringer

QUESTION:        Our Leadership Council is developing a Performance Improvement Plan (“PIP”) for a practitioner at our hospital who does not play well with others.  One member of our leadership team suggested that we send the practitioner out for a psychiatric evaluation before finalizing the PIP.  Does this make sense?

ANSWER:            As a rule of thumb, we recommend that you stay away from requesting psychiatric evaluations from practitioners who have failed to meet your Medical Staff’s standards regarding professionalism.  In our experience, such an evaluation only tends to cloud the Leadership Council’s thinking on how best to address the inappropriate behavior that has been identified. Additionally, a request for an evaluation might give the practitioner a basis for claiming that he or she was discriminated against under the ADA if disciplinary action is ultimately taken.  That is why we believe it is better to focus on the behavior at issue rather than spending too much time and energy trying to identify its cause.

Of course, impairment and “burnout” are real concerns.  So, if there is compelling evidence that suggests that the practitioner is dealing with a legitimate health issue, then an evaluation may be appropriate.  But that should be managed through your process on practitioner impairment, not your Professionalism Policy.

To make sure you have the tools you need to manage difficult scenarios like this, please join Barbara Blackmond and Rachel Remaley on August 1, 2017 for a special audio conference on “best practices” for your Professionalism Policy.  More information can be found here.

June 22, 2017

Posted on by hortyspringer

QUESTION:        I am a new physician CEO at a physician group affiliated with a hospital system.  I get calls and e-mails from physicians directly when they have concerns about the communication/behavior/responsiveness of other physicians, before any medical staff involvement.  There is an agreement to share information between medical staff committees and the employer group.  How should I respond?

ANSWER:            It would be a good idea to develop a policy for the group as to how issues are triaged and addressed. If the issues primarily involve conduct in the hospital setting, as opposed to employment, you could still choose to handle them initially within the group process (and consider subsequent reporting if the issue is not resolved) or you could report the concerns to the appropriate individual in the hospital. That may be the CMO, a medical staff officer, or Leadership Council as described in a Medical Staff Professionalism Policy.

While it may be suitable for you to handle some issues in an informal way by your personal immediate involvement, too much of that style of intervention may not be a good use of your time.  Many issues are best directed through appropriate channels within either the group or the hospital/medical staff.  (That doesn’t necessarily mean too much bureaucracy!)  There may be more to a story than what is reported by one person; often, more fact-gathering is needed.

For issues that implicate medical staff performance, in some systems, a group’s CMO may be appointed to a hospital medical staff peer review committee or may be invited to the Leadership Council or similar group. A Leadership Council is commonly composed of the officers, hospital CMO and key support staff, and can convene regularly or when an issue involving the hospital practice or behavior of an employed physician is to be triaged.

February 23, 2017

Posted on by hortyspringer

QUESTION:        One of our busiest general surgeons is chronically late in dictating her operative reports.  She often does not dictate the complete operative report until days or weeks later.  We are concerned about patient care and compliance with accreditation standards.  And we are expending unnecessary resources sending constant reminders. We think our rules and regulations are clear.  What can we do?

ANSWER:            You are correct that a surgeon’s failure to timely complete an operative report has patient care and compliance implications.  It is difficult to imagine how an accurate operative report can be dictated days or weeks after the procedure, especially when the surgeon has a busy practice.  That is why the issue of operative reports is addressed both in the Conditions of Participation and the Joint Commission Standards.

According to §482.51(b)(6) of the Conditions of Participation: “An operative report describing techniques, findings, and tissues removed or altered must be written or dictated immediately following surgery and signed by the surgeon.”  Joint Commission RC.02.01.03 Element of Performance 5 requires: “An operative or other high-risk procedure report is written or dictated upon completion of the operative or other high-risk procedure and before the patient is transferred to the next level of care.” There is an exception to this requirement when an operative progress note is written immediately after the procedure, in which case the full report can be written or dictated within a time frame defined by the hospital.

In dealing with your particular situation, we recommend, as a first step, that you gather information about the surgeon’s non-compliance with your standards, including any reminder letters that have been sent within the last year.  Share this with the Leadership Council (typically the Chief Medical Officer, the Chief of Staff, the Chair of the Credentials Committee and the Chair of the Peer Review Committee) and the Chair of the Department of Surgery.  Then invite the surgeon to meet with the Leadership Council.

In advance of the meeting, the Leadership Council can outline a proposed Performance Improvement Plan, including specific expectations and consequences.  For example, the Performance Improvement Plan may provide:

You acknowledge and agree that an operative progress note must be entered into the medical record immediately after surgery and before the patient is transferred to the next level of care.  This progress note must include the following:  the names of the physician(s) and physician assistants, procedure performed, findings, estimated blood loss, specimens removed, and post?operative diagnosis.

You acknowledge and agree that a complete operative report must be dictated within 24 hours of the surgery/procedure.

You may want to consider a course on medical record documentation and mentoring sessions to further help the surgeon correct the underlying issues.

Some medical staffs have had success in gaining compliance with medical record requirements by imposing fines for non-compliance. Other medical staffs use the concept of automatic relinquishment.  Both approaches can be progressive with each subsequent incident of non?compliance leading to higher fines and/or longer periods of relinquishment of appointment and privileges.