Adopting Bylaws That Address Disruptive Physicians: Q & A With Tom Stallings of McGuireWoods

Thomas J. Stallings, JD, a leading legal expert on medical staff issues and partner at McGuideWoods, discusses medical staff issues of concern for surgery centers and hospitals, and offers his suggestions for dealing with these challenges.

Q: What medical staff issues should surgery centers and hospitals be most concerned with right now?

Tom Stallings: I am increasingly being consulted about the problems created by disruptive physicians. Unfortunately, healthcare has had some history of tolerating physicians who exhibit intimidating or disruptive behavior; however, accrediting bodies are taking more and more of an active role in requiring that healthcare facilities confront these behaviors. The Joint Commission and other accrediting and regulatory bodies are placing increased emphasis on the management of disruptive physicians. This emphasis is arising because of the recognition that disruptive conduct jeopardizes quality and safety, which require teamwork, collaboration and communication. Additionally, disruptive conduct, of course, can interfere with staff retention and recruitment and consume critical resources that are better focused elsewhere.

Let's say, for example, there is a disruptive surgeon at your facility whose behavior administration and co-workers have kept quiet about or let slide. Patient care can be compromised if nurses are afraid to ask the surgeon a question because they fear the doctor will berate them. As a result, we see an increased emphasis from accrediting and regulatory bodies on this issue.

All too often, this issue overlooked until a problem arises. I’m seeing more and more disputes involving disruptive physicians and facilities, and the facilities run into problems when they haven’t put procedures into place to discipline or deal with these disruptive behaviors before they become a problem. The Joint Commission has recently required all accredited facilities to have a code of conduct and create a formalized process for managing disruptive and inappropriate behaviors. Having a clear code of conduct and a process for addressing and disciplining these behaviors is critical for all facilities, even if they are not accredited by the Joint Commission.

Q: What should surgery centers and hospitals do about this concern?

TS: The most important thing for hospitals and surgery centers to do is to update their medical staff bylaws to include a formal process for managing any inappropriate behaviors that arise. In particular, administrators should review the corrective action and hearing sections. The key is getting your system in place before a problem arises. What you don't want to do is try to invent or revise a process after a problem arises. This can create a host of problems for everyone involved.

Unfortunately, the tendency is for facilities to focus on these sections of the bylaws only at the time they need to implement them. However, by the time you need to implement them, it’s too late to change them. Typically, no one reads the sections that deal with corrective action until there is a full-blown problem at the facility. Adopting some other facility’s bylaws years ago, and then never updating them, is a recipe for trouble. When you have a genuine problem on your hands, you want your medical staff bylaws to comply with applicable state and federal law to maximize the immunity and privilege available to peer review proceedings. That way, the final actions of the facility’s governing body can stand up in court, if it is challenged later.

Q: What do surgery centers and hospitals need to include in their bylaws to ensure they are prepared if issues involving disruptive physicians arise?

TS: There is no one-size-fits-all policy or process, especially since the applicable state laws will vary. Therefore, it is critical that facilities customize their bylaws in light of applicable state law. However, as the Joint Commission recommends, a code of conduct, a process for managing disruptive behavior, protection for those who cooperate in investigations regarding this behavior and information on how and when to begin disciplinary actions are all critical elements. Medical staff bylaws should strike an appropriate balance between protecting and promoting patient safety and providing due process for the physician in question.

I've seen a lot of a facilities model their bylaws after others they've seen and judge to be good. While there's nothing wrong with starting with a good model from another state, doing so should be a starting point, not the end of the process. Or, conversely, just because you have a model from a facility in your own state, you can't assume that it’s a good model or that it has been customized in light of your state law. I've seen many bylaws that don't even come close to meeting state requirements, and this is often discovered, unfortunately, only when you are in the middle of the corrective action process.

Q: How should surgery centers and hospitals approach bylaws?

TS: The most important thing is that these facilities need to approach bylaws differently. I have seen a good number of surgery centers adopt bylaws written for hospitals without customizing them for their facilities' needs. For surgery centers, standard hospital bylaws may not be applicable.

The last thing a facility should do is adopt bylaws that it cannot follow. Surgery centers typically have much smaller medical staffs. In a hospital setting with a larger medical staff, it may be perfectly appropriate to have rules restricting who can serve in certain roles. For example, some bylaws provide that members of the governing board may not be involved in the investigation process. While these are good principles, they are typically not mandatory. In the surgery center setting, the same rules may be too restrictive, because they don't leave enough individuals available to fill the needed roles. When facilities adopt rules that are too restrictive, those facilities either end up ignoring the bylaws or following them and getting poor results. It’s never a good position for a facility to be violating their own bylaws. It is also complicated to try to change the bylaws in the middle of a situation. The best approach is to anticipate problems and ensure that your bylaws satisfy accreditation as well as federal and state law requirements and are appropriate for your facility before dealing with problems, such as a disruptive physician.

Mr. Stallings (tstallings@mcguirewoods.com) is a partner with McGuireWoods. He concentrates in healthcare law including healthcare contracts, state and federal self-referral and fraud and abuse prohibitions, medical staff privileges, professional and facility licensure, state and federal privacy and confidentiality requirements, managed care, Medicaid, Medicare and third-party reimbursement and regulation, healthcare litigation and certificate of public need matters. Learn more about Thomas J. Stallings

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