One of the more difficult tasks facing medical staff leadership is determining when and how to respond to complaints of unprofessional physician behavior. A physician’s clinical competence can be assessed objectively, relying on case reviews by physicians in the same specialty area and accepted standards of care. Conducting such reviews are well within the professional experience of any physician. However, there is little in most physicians’ education or professional experience that prepares them for assessing and addressing physician behavioral issues. A common question facing medical staff leadership confronting physician behavior issues is “can peer review action be taken based on physician conduct?” The following two cases offer guidance on this important threshold question.
- Can a medical staff take peer review action based on physician conduct that does not involve any patients?
After Dr. Jorge Leal was told his surgical case would be delayed, he responded by breaking a telephone, shattering glass on a copy machine, smashing a metal cart into the OR doors, throwing jelly beans down the hallway and swearing at a nurse while calling her a liar. In response, Cape Canaveral Hospital summarily suspended the physician for 60 days and reported him to the National Practitioner Data Bank (Leal v. Secretary, DHHS1). The physician argued his suspension was not a reportable event, because no patients were involved in the incidents involved. The Health Care Quality Improvement Act (“HCQIA”) requires reports be made of professional review actions based on the competence or professional conduct of a physician “….which conduct affects or could affect adversely the health or welfare of a patient…”2
The court held the plain language of HCQIA provides that actual patient injury or harm is not required in order for peer review action to quality as a “professional review action.” The court stated, “Disruptive and abusive behavior by a physician even if not resulting in actual or immediate harm to a patient poses a serious threat to patient health or welfare. A physician must work collaboratively with other members of a medical staff in order to provide quality care to patients. ….when a physician becomes enraged and lashes out at other members of the medical staff, patient welfare is endangered. That kind of behavior intimidates other health care workers, discouraging the kind of open communication and close cooperation that is essential to providing the best care to patients.”3
The summary suspension was held to be a professional review action under HCQIA and met the requirements for reporting to the National Practitioner Data Bank.
- Can a medical staff take peer review action based on physician conduct that occurs outside of the hospital?
In Moore v. Williamsburg Regional Hospital,4 the Medical Executive Committee (“MEC”) summarily suspended Dr. Moore, a surgeon who treated both children and adults, after learning he had been accused of sexually abusing his adopted daughter by the South Carolina Department of Social Services (“DSS”). The MEC convened immediately and reviewed materials from the physician’s DSS file, including the complaint, probable cause finding, the child’s forensic interview report, progress notes from her therapist and a family court order. The physician attended this meeting and presented argument in response, but the MEC voted to continue the suspension. Dr. Moore requested a fair hearing, where the hearing committee upheld the summary suspension. He then appealed to the hospital board, which voted unanimously to uphold the suspension. The hospital then filed a report with the National Practitioner Data Bank.
Dr. Moore sued the hospital, and the trial court held that the defendants were entitled to immunity from the physician’s claims under the federal HCQIA. The physician appealed, arguing that the summary suspension was not based on his “…competence or professional conduct…” because the underlying behavior was unrelated to his abilities as a doctor. Specifically, Dr. Moore argued that “non-medical allegations” cannot be the basis for peer review actions under HCQIA because such actions are only appropriate when medical expertise is at issue.
The court disagreed, finding that a physician’s competence can be implicated by his or her conduct outside the hospital where there is a clear nexus between such conduct and the physician’s ability to render patient care. HCQIA applies to conduct [which] affects or could affect adversely the health or welfare of a patient or patients.5 Therefore, the intention is not to restrict peer review responses to instances of troublesome past conduct. HCQIA allows hospitals and medical staffs to take pre-emptive steps where warranted; “…nothing in the statute requires peer review committees to wait until medical disaster strikes…HCQIA immunity may protect peer review actions based on conduct that has occurred outside of the hospital, but could realistically occur or affect treatment in the hospital…a peer review committee could surely conclude that it was only a matter of time before erratic or destructive behavior outside the medical setting began to manifest itself in patient care.”6 At the same time, the court rejected a broad interpretation allowing peer review actions in response to any sort of physician private misconduct.
Peer review actions, also known as professional review actions, require a record reflecting a clear nexus between the basis for the recommendation or action and the physician’s medical practice. In the facts of this case, the record demonstrated a strong nexus between the alleged sexual misconduct and the physician’s medical practice. The hospital had a reasonable concern that minor patients could be subjected to sexual abuse. Given that concern, the summary suspension was based on the physician’s competence, constituted a professional review action and the defendants were therefore entitled to HCQIA immunity.
Summary/Practical Takeaway
Clearly, not all physician behavioral issues warrant a peer review response. When faced with physician conduct issues, medical staff leadership must assess the circumstances, determine the degree to which they do or could affect patient care, including the environment in which other health care professionals must function. Additionally, while not all behavior issues implicate patient care, the stronger the nexus between such behavior and actual or potential risks to patients, the greater the need for meaningful peer review response.
If you have any questions, please contact James B. Hogan, Esq. at 317-977-1439 or jhogan@hallrender.com or your regular Hall Render attorney.
Please visit the Hall Render Blog at http://blogs.hallrender.com for more information on topics related to health care law.
1 620 F.3d 1280
2 42 U.S.C. §11151(9)
3 620 F.3d 1280, 1286
4 560 F.3d 166
5 42 U.S.C. §11151(9)
6 560 F.3d 166, 172.
