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Legal update: Give Disruptive Docs the Boot
When it's time to fire bad behavior, follow the rules.
Mark Weiss
Publish Date: March 31, 2015   |  Tags:   Medical Malpractice-Legal
boot GIVE 'EM THE BOOT Don't let disruptive docs wreck your business from the inside.

No one wants to work with a surgeon whose default setting is bad-mouthing or screaming at his staff, whose idea of "getting his point across" is throwing scalpels into the wall. Communication breaks down, imperiling patient care and satisfaction. Employees want to quit, or worse, to sue your facility for enabling a hostile work environment. If you care about your business, it's critical to protect it from the destruction that disruptive physicians cause. Let's review your recourse options.

Spell out what defines bad behavior
It's not enough to thoroughly vet the physicians you're recruiting to your medical staff and/or ownership group, and to regularly host training sessions on appropriate versus inappropriate behavior. You'll need to prepare a few contractual rules.

Your facility's organizational documents should clearly spell out grounds for the repurchase of physician-owners' equity in the event they fail to meet well-described standards of behavior. This termination of ownership rights should be disconnected from the notion of medical staff peer review, but your medical staff bylaws should also contain procedures to be followed in order to suspend or terminate a disruptive physician's privileges.

In accordance with Joint Commission standards, make certain that these bylaws define acceptable, inappropriate and disruptive behavior. The bylaws must describe the process and procedures for managing the latter two, addressing in particular the possibility of summary suspension. A facility may find it necessary to invoke either or both the repurchasing provision or the bylaw procedure as a remedy.

If the disruptive influence is an employee (since, let's face it, physicians don't hold a monopoly on bad attitudes), contractual compliance is likewise critical. Staff hired by way of written employment agreements are subject to its descriptions of behavioral standards as well as with- and without-cause termination provisions.

Those hired without formal employment agreements should have a written policy explaining their behavioral expectations built into the list of their job duties. Make it clear that a failure to act in accordance with these obligations is grounds for immediate termination, and that the policy does not change the status of their at-will employment.

Monitoring and correction
It's one thing to set up rules, but it can be quite another to enforce them. This is often the result of money talking. To be specific: patient referrals. "Look, George is a great hand surgeon, and he brings a ton of cases to the facility. It's inexcusable that he flung another scalpel during surgery, but if we kick him out, our distributions are going to be peanuts."

Short-term thinking correctly calculates the pain that disciplinary action will bring. In the long run, though, the cost of a disruptive surgeon can chase much more money out the door. Disruptive docs impact working relationships, trigger inappropriate retaliatory action and teach others that the facility either doesn't enforce its rules or sanctions their poor behavior.

That's why it's important to keep an eye on everyone's professionalism, documenting instances of inappropriate behavior and all action taken to correct it. If you conduct annual or other periodic employment reviews, make sure that those reviews are consistent with the rest of your actions with respect to behavior.

When corrective action is necessary, carry it out immediately. In the case of action pertaining to the medical staff bylaws, make sure it is in complete compliance with their procedural requirements.

Time to terminate
The politically correct solution to disruptive physicians is a counseling intervention telling them how much you appreciate them and imploring them to toe the line. You can try that, but the hard truth may be that the disruptive doc just can't help himself and termination is the only way to end the fallout on your business.

When it's time to terminate, adhere to the procedures laid out in your medical staff bylaws, employment agreements or other contractual provisions. It's extremely important that you apply these policies consistently among your surgeons and staff.

Document everything: the precipitating events, who said what when and where, the counseling efforts. Be as detailed as possible. Make sure you have a witness to your termination actions.

Condition any extra-contractual payment, such as severance pay that you're not legally required to provide, on a release. It's often worth parting with dollars if you can obtain a release, in order to avoid paying to defend a meritless lawsuit.

Disruptive physicians are a bad influence that will spread throughout your facility. In some other setting, though, they may be perfectly happy, highly productive citizens. Do them a favor and get them started on their journey to find that place.