The War Is On: Why Your Medical Staff Needs to Incorporate and Obtain Its Own Independent Counsel

Charles Bond, Esq.

Disclosures

Medscape General Medicine. 2004;6(1):e36 

In This Article

The 3-Part Strategy

Currently, hospital attorneys are going from hospital to hospital promoting a "Code of Conduct" for doctors on staff. The hospital's board of directors usually adopts this Code, without medical staff input or approval. Its provisions are lengthy and vague and give the administrator the unilateral power to discipline doctors for alleged infractions, including the power to "exclude doctors from the premises" (Footnote 4). Using this Code, administrators can summarily cut off a doctor's livelihood. Infractions include such things as making disparaging remarks or just not fitting in with the hospital's economic or financial agenda (Footnote 5). And this is all done outside the medical staff bylaws.

At the same time, the hospital attorneys are urging hospital boards to pass a "Conflict of Interest Policy." These policies are also outside the bylaws, and bar doctors from medical staff membership or from medical staff leadership positions if the doctors "compete" with the hospital. What constitutes "competition" is vague and arbitrary. For example, a 1.25% interest in a surgicenter may be deemed "competition," but an in-office x-ray or lab may not. The power to determine whether there is a conflict is placed in the hands of the administrator and/or the hospital board.

The Code of Conduct and Conflict of Policy strip the medical staff of the most critical elements of self-governance, namely the right to determine who shall be its members and who shall be its leaders. What does self-governance mean if it does not mean establishing membership criteria and qualifications for office?

The third prong of the hospital bar's tactic is to encourage medical staffs to use the label "disruptive physician" to take privileges away from doctors who are targeted by the administration. This highly subjective phrase -- "disruptive physician" -- is dangerous, as the California Supreme Court recognized more than 20 years ago:[1]

The fact that a physician seeking admission to staff membership is shown to manifest characteristics of personality which other staff members or administrators find personally disagreeable or annoying is not in itself enough, in our view, to justify rejection under the subject bylaw provision. . . To permit such application of the bylaw in question would, in the words of Rosner [ v. Eden Township Hospital Dist. (1962) 58 Cal.2d 592], pose a substantial danger of application "as a subterfuge where considerations having no relevance to fitness are present."

The use of labels can be very powerful. Increasingly, we are seeing good physicians wind up being punished as "disruptive" for advocating quality of care for their patients. In many scenarios, administrators (especially promoted nurses) solicit "incident reports" from hospital employees to build their trumped-up case. Then, using the nursing shortage as pretext, they claim the doctor is "disrupting" hospital operations because he/she is "upsetting" the nursing staff, which could lead to employee turnover, thereby "disrupting" hospital operations.

Physicians charged as "disruptive" are often subjected to psychiatric evaluation and labeled "crazy." In one Montana hospital, a radiation oncologist who had absolutely no adverse quality-of-care issues was ousted after 18 years for being "disruptive," and was even called "nuts" by the administrator, even though the only professional evidence in the record consisted of 2 independent psychiatric evaluations saying she is in fine mental health. Horty Springer represented the hospital against her. She is now suing the hospital. Unfortunately, however, hospitals are using the "disruptive physician" jargon to shatter the lives and careers of dedicated physicians. Every doctor should beware and be vigilant, realizing there but for the grace of God go I.

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