As of January 1, 2009, most healthcare facilities that are accredited by the Joint Commission should have in place processes that address disruptive and intimidating behavior by staff, including medical staff members and individuals in positions of power. Although the requirement is new, the challenge has long existed. The Joint Commission’s adoption of this requirement, and its finding that disruptive behavior detracts from quality of care, offers healthcare executives a unique opportunity to establish legally protected mechanisms to address disruptive behavior.  

Addressing disruptive conduct poses significant challenges for healthcare facilities. When counseling and warnings do not change problematic conduct, facilities may invoke more direct measures, including limiting or revoking clinical privileges or suspending medical staff membership.

Such action often leads to litigation. In such suits, the affected practitioner may argue that the action is based on anticompetitive, discriminatory, or retaliatory motives, and that disruptive conduct has no effect on quality of care. 

Generally, our courts have acknowledged the negative impact of disruptive conduct on quality of patient care. For example, in Robbins v. Ong, a Georgia federal court held that a doctor’s ability to work well with others could significantly influence the quality of patient care, and that it is for the hospital to decide whether or not such personality differences are detrimental to the efficient operation of the hospital.  

Pursuant to the Health Care Quality Improvement Act (HCQIA) of 1986, healthcare facilities are required to report certain corrective actions to a national database and to query that database during the process of credentialing and recredentialing physicians and dentists.  

In addition, HCQIA provides immunity to peer-review participants for damage claims if their reportable actions were taken in the reasonable belief that it was in furtherance of quality healthcare. HCQIA immunity has been applied broadly to protect peer review actions that were taken in response to a physician’s disruptive behaviors that had the potential to affect quality healthcare.  

Courts have ruled that healthcare facilities are justified in taking action based on their concern that disruptive behavior may lead to patient harm and do not have to wait until a patient is actually injured to take corrective action. (Meyers v. Logan Memorial Hosp.; Rooney v. Medical Ctr. Hosp.)

Reasonable belief

Physicians have challenged the application of HCQIA immunity by claiming that the healthcare facility took corrective action against them for bad-faith reasons such as personal bias. The standard for determining whether a healthcare facility was reasonable in its actions against a disruptive physician, however, is an objective one, so allegations of bad faith are legally immaterial.

Instead, courts look to the totality of the circumstances to determine whether a healthcare facility reasonably believed that a physician’s disruptive behavior could affect the provision of quality healthcare.  

Physicians have also tried to overcome the presumption of HCQIA immunity by claiming that the corrective action taken against them was not taken to further quality care but to retaliate for whistleblowing activities. Federal and state courts generally have held that, regardless of whether a physician has a valid complaint against a healthcare facility, expressing those complaints in a disruptive and unprofessional manner may negatively affect quality healthcare.  

Four requirements

It is important for healthcare facilities to structure their investigations and corrective actions to fit within the immunities of the HCQIA and state confidentiality privileges (e.g., quality assurance or peer review protections), allowing the healthcare facility to better defend against litigation and prevent the disclosure of peer review material in the course of civil actions.

To obtain immunity protection under HCQIA, four requirements should be met. The professional review action must be undertaken: 

  1. In the reasonable belief that the action was in the furtherance of quality healthcare.
  2. After reasonable effort to obtain the facts of the matter.
  3. After adequate notice and hearing procedures were accorded the physician.
  4. In the reasonable belief that the action was warranted by the known facts obtained after reasonable efforts and after meeting notice and hearing requirements.

The Joint Commission rules regarding disruptive behavior relate to items 1, 3, and 4 of these requirements. 

Given existing court rulings and the new Joint Commission requirements, it is widely recognized that addressing disruptive behavior furthers quality of care. Accordingly, taking such action can be done in the reasonable belief that it was in furtherance of quality healthcare and that action was warranted.  

The healthcare facility should also demonstrate that it made reasonable efforts to obtain the facts of the matter prior to taking corrective action. This can be done by reviewing documentation of incidents of disruptive behavior and by interviewing the persons involved, including the allegedly disruptive practitioner. 

The facility should document the investigation process, and, in appropriate cases, consider obtaining an independent review that lends impartial support to the healthcare facility’s allegations regarding quality of care concerns. 

Frank discussion

Healthcare facilities should protect the confidentiality of information gathered as part of their investigation into disruptive behavior. Many states have privileges that protect quality assurance activities from being disclosed as part of civil suits, to foster candid and frank discussion by those involved in the peer review process.

Generally, certain criteria must be met for the peer review information to be protected by confidentiality laws. Each state has its own rules regarding application of quality assurance, and similar, privileges. To ensure the protections afforded by such privileges, healthcare facilities should review them thoroughly and, to the extent possible, structure their peer-review activities to fall within such provisions.  

Healthcare facilities should also be sensitive to circumstances where disruptive behavior may result from an impairment and seek to ensure compliance with the laws that protect impaired individuals, such as the Americans With Disabilities Act.  

In developing mechanisms to address the Joint Commission’s new requirements regarding disruptive behaviors, healthcare facilities can do more than create policies that comply with Joint Commission standards. In the course of applying those policies, consideration should be given to federal and state laws that establish protections for hospitals and peer review participants, as they move forward in addressing and reporting disruptive behaviors. Doing so will help to provide important immunity and confidentiality protections that are essential to a facility’s ability to conduct meaningful peer review.  

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