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Hospitals Responsible for Physicians' Bad Behavior

By Liz Jones for HealthLeaders Media  
   October 20, 2010

When an independent physician harasses or discriminates against an employee of a hospital, someone must be held accountable, and guess what—it's not the physician. Hospitals are the ones that are on the hook.

"[The hospital] controls the terms and conditions of employment for your employees, and if your employees are being harassed by a nonemployee, you are on the hook for that nonemployee's behavior because you have the ability to protect your employees," says Michael McAuliffe Miller, Esq., an attorney at Eckert Seamans Cherin & Mellott, LLC, in Harrisburg, PA.

A hospital may try to hide behind the fact that it does not directly employ the offending physician. However, this is a thin defense, says McAuliffe Miller.

The fact that the physician is not an employee of the hospital will not insulate hospitals if a discrimination or harassment claim makes it to court. "That obligation [to protect employees] is there whether it is the fellow that comes in to repair the Xerox machine who says inappropriate things to the admins or whether it is a physician that has admitting privileges," says Robert Wolff, Esq., a shareholder at Littler Mendelson in its Cleveland office.

If a physician discriminates against or harasses a hospital employee—regardless of whether that employee is another physician, a nurse, or a person in food services, etc.—and that employee files a claim with HR or even the Equal Opportunity Employment Commission (EEOC), HR will most likely take the reigns and interview the physician and other witnesses to determine whether discrimination or harassment occurred.  

"The hospital must take action to investigate and, where necessary, remediate the issue even if it's not their employee," says McAuliffe Miller.

However, HR should not leave the medical staff in the dark. HR should involve the medical staff as it collects information about the physician's behavior. HR may work with the medical staff to limit the independent physician's contact with the complainant, when necessary, McAuliffe Miller adds. HR may also coordinate with the general counsel, with the president of the organization, and/or with the chair of the department during an investigation and any remedial action to ensure that appropriate measures are taken.

The medical staff's actions will vary depending on the severity of the behavior. For minor cases, a medical staff leader, such as a department chair, may sit down with the physician and explain that the behavior is unacceptable and will not be tolerated. For more severe cases, the medical staff may report the physician to the state licensing agency. "You always want to document regardless of what the final outcome is," says Wolff. Medical staffs should document their steps, regardless of the severity of the behavior.

Wolff explains that in some states, disruptive behavior is considered a sentinel event and is reportable to the National Practitioner Data Bank (NPDB). The NPDB is the medical staff's last line of defense in combating disruptive behavior.

In states where the medical staff bylaws are considered a contract between the independent physician and the medical staff, the medical staff may terminate the physician's privileges for breach of contract, says Wolff. "The contract may have a clause that says you must act in a collegial nature toward your colleagues and behave in a way that will engender respect." If a physician can't live up to the terms of the contract, he or she is not entitled to privileges.

The medical staff and the hospital should work together to ensure that any claim of harassment or discrimination is nipped in the bud during the early stages, and the best way to do that is through strong policies and frequent training.

Having an organizationwide code of conduct policy, which is required under Joint Commission standard LD.3.01.01, isn't enough; the hospital needs to publish it. McAuliffe Miller suggests that HR e-mail the policy to employees and nonemployees with a read receipt and distribute it at meetings every two years. The medical staff should do the same with its behavior policy, which is located either in the medical staff bylaws or in separate accompanying documents.

It's also wise to provide training to employees and nonemployees to ensure they understand that poor behavior is unacceptable. If a harassment or discrimination claim makes it to court, the hospital will need to demonstrate that it had policies in place and that it presented training opportunities for all employees and independent physicians, says McAuliffe Miller.

Be sure that your policies protect the person who complained from retaliation by the physician. Retaliation is just as serious an issue as the original discrimination or harassment, says McAuliffe Miller. Retaliation often occurs even if the hospital and medical staff determine that the employee's original complaint did not constitute harassment or discriminatory behavior on the physician's part.

The hospital must also be careful to document and prove that any actions it takes against that employee, such as demotion or relocation, are related to that employee's performance. Otherwise, the employee may mistake that action as retaliation.


Liz Jones is an associate editor at HCPro, Inc. She writes Medical Staff Briefing and co-writes Credentialing & Peer Review Legal Insider. She can be reached at ejones@hcpro.com.

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