Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Executive Summary
Obtaining and maintaining membership on a hospital medical staff is a necessary component of most physicians’ medical practices and livelihood. Physicians are by nature independent and trained decision makers, highly intelligent, and feel acute responsibility for their patients. The practical requirements of membership on a hospital medical staff can, however, seem at times to intrude on the doctor’s independent nature. In modern hospitals, membership on a medical staff “involves social, collegial, clinical, and legal aspects in a complicated human calculus that defies simple solution.”[1] This section discusses common mistakes physicians who run afoul of their medical staffs have made, focusing on behaviors and attitudes that get even good practitioners into trouble with their peers on the medical staff, as well as with the hospital administration.
In today’s medical and legal practice, a hospital stands at risk for much of what takes place within its walls, including the real possibility of legal liability for the acts of independent medical practitioners. Accordingly, hospitals have a lower tolerance level for disruptive practitioners than ever before.
Mistake 1 Failing to Practice in a Collegial Manner
Failing to practice in a collegial manner is a failing that cuts across most of the topic of this section. A number of cases have been reported of physicians being abusive to other doctors and to nurses, intimidating and even threatening. The American Medical Association considers disruptive behavior unethical.[2] If others see a physician as rigid, inflexible, and defiant, that physician is probably not practicing in a collegial manner and is at risk of becoming a target for a revocation of staff privileges. Courts have routinely upheld the decision of hospital boards in revoking staff privileges based on abusive, disruptive behavior.
Action Step It is the ethical duty of all physicians to conduct themselves in a professional manner in their interactions with other health care professionals and to promote standards of professional behavior among colleagues.
Mistake 2 Impugning the Quality of Care of the Hospital, Nurses, and Other Physicians
Physicians who impugn the quality of care provided by the hospital, nurses, and other physicians believe they are more competent than most, if not all, of the other physicians on the medical staff. They are often intolerant of the mistakes of others, even to the point of yelling at them within earshot of other people, including patients and their families. These physicians treat those who question them, whether or not they are colleagues, derogatorily. It is important that physicians address concerns about clinical judgments with others directly and privately, not in the patient’s room or in the hallway.
Action Step Dissatisfaction with other physician staff members or nurses should be dealt professionally and through appropriate grievance channels.
Mistake 3 Not Knowing the Hospital’s Policies and Procedures
Every hospital has medical staff bylaws that govern virtually all aspects of a physician’s practice in the hospital. The bylaws contain provisions regarding expectations of committee involvement, professional behavior, interaction with nursing staff and hospital administration, peer review, and procedures to address grievances. Every physician on staff should be provided a copy of the bylaws and should be familiar with their contents. The hospital also has nursing policies and procedures that, while not directly governing physician practice, contain detailed descriptions of certain medical procedures, practices, and limitations on nursing practice at the hospital. Physicians practicing at the hospital need to be familiar with the policies that nurses treating their patients must follow in order to avoid causing conflicts with those policies.
Action Step Physicians should familiarize themselves with the hospital’s bylaws, policies, and procedures, especially those that address their area of practice and procedures they might order for patients.
Mistake 4 Not Involving Consultants When the Issue Is Out of One’s Specialty
Modern hospital practice requires staff physicians to follow the team concept of treatment. Some physicians find it difficult to admit to themselves or their patients that some aspects of the treatment could be better handled by a consulting physician. This treatment can take the form, for example, of a general practitioner who tries to treat disease conditions alone, when most physicians would bring in an infectious disease consultant. Another example is an orthopedic surgeon who tries to handle all aspects of a joint replacement without involving an internist. While any physician wants to avoid using consultants unnecessarily, physicians who find themselves using consultants significantly less than their peers should investigate why, since they risk facing criticism that they are putting their patients’ care in jeopardy.
Action Step Physicians should practice medicine as a team member. They should request consultations when appropriate and if in doubt, ask for help.
Mistake 5 Not Accepting Constructive Criticism and Suggestions
Often the first inkling indicating that physicians may be at odds with their peers and the hospital administration is when suggestions are made about an issue in their treatment of a patient or some aspect of the treatment is criticized, even informally. When this occurs, some physicians tend to become defensive and argumentative. While there are often different approaches to patient treatment, and physicians can disagree about them, there is a way to disagree without being disagreeable. If the suggestions and criticism are constructive, they should be given due consideration before explaining why a particular treatment decision was made. In some cases, it may be necessary to support treatment decisions with medical studies and literature to cut off an attempt to restrict the physician’s practice.
Action Step When a physician colleague or a nurse makes a treatment suggestion, physicians should react in a positive manner and be responsive to the feedback being given. They should avoid acting resentful or responding discourteously to the input.
Mistake 6 Failing to Seek Approval Before Prescribing Unorthodox Drugs or Treatment
Failing to follow appropriate channels before prescribing unorthodox drugs or treatment causes much consternation and concern about patient care. This is not to say that physicians should be afraid to try the latest medically supportable treatment, but if the treatment has not been widely accepted, they need to notify the appropriate hospital entity and be ready to support their treatment modality. For example, it is a mistake to simply enter an order for a medication not usually given to treat a particular condition without discussing it ahead of time with the pharmacist or pharmacy committee. The admonition applies more to the administration of potentially toxic drugs than to the use of more benign drugs, but it raises a red flag in any event.
Action Step Before ordering a medication or treatment modality that would be considered unusual or “cutting edge,” physicians should notify the appropriate committee or department of the hospital of what they are planning and why.
Mistake 7 Failing to Respond Promptly to Inquiries About Care or Behavior
The hospital’s bylaws require the hospital and the directors of the various departments to monitor the care rendered at the hospital. That can result in questions being raised about a physician’s treatment, orders, or behavior. If such a question is raised, it is imperative that the physician respond promptly and professionally, without being defensive or accusatory. The physician will have a good reason for the treatment decision, but that will get lost if he or she reacts with the attitude that it is none of the hospital’s business or that the way he or she treats nurses is always justified regardless of the complaints.
Action Step If a question is raised about the physician’s treatment of a patient or interaction with other health care providers, the physician should respond promptly and professionally. If it is a matter of some seriousness, the physician should request a conference with those involved and be ready to support his or her decision, while being open-minded when listening to what others have to say.
Mistake 8 Failing to Follow Up on an Agreement Resolving an Issue
If the physician and hospital have agreed to resolve an issue through changes in practice or through continuing education, for example, the physician must be sure to put the change into effect or get the continuing education, whatever the case may be. Failing to follow through on the agreed resolution invites removal from the medical staff in short order. Extensions of time are not in a physician’s best interest.
Action Step When a physician agrees to obtain continuing education or change his or her practice pattern, the physician should implement the change immediately and attend the continuing education promptly. The physician should also report back to the hospital periodically on his or her compliance with the agreement.
Mistake
Today, a physician cannot always get staff privileges somewhere else. Indeed, being removed from one medical staff can have a detrimental effect on a doctor’s ability to obtain staff privileges elsewhere for a significant amount of time. Physicians should remember that the hospital board has broad discretion in controlling admission to or on its medical staff and is insulated to some degree from legal liability by federal law.
Action Step Hospital privileges are a critical part of a physician’s ability to practice medicine and earn a livelihood. Physicians could risk losing privileges at any hospital by taking the attitude that their privileges at that hospital are less important because of opportunities they think they might have at some other hospital.
Mistake
When physicians have peers talking to them about their treatment of patients, a hospital committee looking at their patient records, and are being asked to appear at peer review meetings to discuss their patient care, it’s time for them to call a lawyer. A physician under that kind of scrutiny is at risk of a reprimand, if not summary suspension. A lawyer’s early intervention can sometimes head off some of the more serious disciplinary measures, many of which are reportable to the National Practitioner Data Bank. This does not mean that physicians should call a lawyer whenever a peer review committee wants to talk to them, but if they are the subject of multiple inquiries, they may need legal advice.
Action Step Physicians who are under scrutiny by peers or a hospital committee should seek legal advice from a lawyer. Once matters have progressed that far, the next step might be action against a physician’s hospital privileges. There is a time to fight and a time to mediate or negotiate, but physicians need the advice of a lawyer to make their way through the maze of hospital bylaws and medical staff requirements.
Conclusion
Regulating a hospital medical staff involves balancing the interests of both the practitioner and the hospital. When those interests compete, there can be an adverse effect on patient care sufficient for the hospital to consider excluding the practitioner from the medical staff. Avoiding these mistakes and following the action steps suggested should resolve the sometimes competing interests in favor of the practitioner remaining on the medical staff.
Written by: William L. Yocum, Esq.
Peer reviewed by: George E. Leonard, Esq.
[1] “Hospitals and the Disruptive Health Care Practitioner—Is the Inability to Work With Others Enough to Warrant Exclusion?” 24 Duquesne Law Review 377, 379 (1985).
[2] AMA, Code of Ethics E-9.045.
