Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

Disruptive Physician Representation

Physicians are often unfairly labeled as “disruptive physicians” by hospitals, health care institutions, employers or economic competitors of theirs in a health care setting. This label can be assigned to the most skilled, compassionate and innocent physician. Unless immediate action is taken by the physician to counter this false labeling, it may result in extremely serious repercussions, loss of income and tremendous expense.

We have seen, first-hand, examples of physicians where attempts were made to label them as “disruptive physicians” because they refused to allow unnecessary and expensive invasive procedures to be performed on their patients by another physician in a hospital setting. We have seen attempts made to label a doctor as a “disruptive physician” because he refused to provide a drug seeking addict (who was hospitalized after a gunfight with police) with additional narcotics. We have seen attempts made by an economic competitor of a physician, who had been able to obtain election as president of the medical staff, to label a physician as a “disruptive physician” in order to drive her off of the hospital staff, thereby eliminating her competition with him. We have seen competing medical groups form an alliance with administrators at a for-profit hospital, to label a physician competitor as a “disruptive physician” and enlist the aid of nursing staff to document every alleged transgression of the physician. We have experienced instances where hospital nursing staff was instructed to scrutinize every act of a surgeon on the staff and to write up every perceived action of this doctor that might possibly be considered to be inappropriate any respect (even “rudeness”). We have represented surgeons labeled as “disruptive physicians” because they cancelled an elective surgery after the scheduled surgery on their patient was delayed three hours because hospital staff did not come in on time and other surgeries started late.

Often physicians reacting to protect their patients from other physicians, or who may attempt to correct incompetent nursing staff, are labeled as “disruptive” because of their comments or actions. Physicians who are somewhat demanding or who are perfectionists (as many, naturally, are), are often unfairly labeled as “disruptive.” We have seen the most highly skilled subspecialists, whose only major concern is their patients care and safety, branded as a “disruptive physician” by hospital staff. We have also seen this occur in smaller, more rural hospitals where the nursing staff may be less than totally competent.

It is extremely important that a physician be sensitive to the possibility of being labeled a “disruptive physician” and the possible consequences this can bring. It may result in the initiation of peer review proceedings to terminate clinical privileges and medical staff membership. It may result in a complaint to the state licensing board against the physician. We have handled a number of cases where complaints were made (even “anonymous” complaints”) to the state impaired physician program, resulting in a long, expensive battle with psychiatric experts and psychologists, in order to refute the allegations.

It is necessary that any allegation made that insinuates that the physician is a “disruptive physician” be immediately, but objectively, countered. A neutral, factual rebuttal is often all that is required. However, sometimes an economic competitor, or an unfriendly hospital administrator, will attempt to push the matter to extremes in an attempt to get rid of the physician, to make his or her job easier. It may be advisable to obtain the services of an experienced healthcare attorney in fashioning a responsive or even formulating a strategy for a long-term defense in such situations.

In some cases, it may be advisable to have our client evaluated by trained psychiatrists and other health care professionals ahead of time, in order to have expert evidence immediately available that the physician does not have a personality disorder or other impairment. This may be used to head off any complaint to or from the state licensing board or impaired physician program.

In Florida, especially, we have seen an increase in referrals to the state impaired physician program for allegedly “disruptive physicians” where a cottage industry seems to have arisen in making such diagnoses and preparing treatment and monitoring plans for them. We have been involved in at least one case where a prominent, successful surgeon was forced to undergo testing, evaluation, and psychoanalysis, while he was excluded by a major hospital, over a course of approximately two years, with the threat of disciplinary action by his state licensing board if he refused to “cooperate.” Finally, after spending tens of thousands of dollars on the recommended psychiatric and psychological evaluations, and after spending tens of thousands of dollars in attorney’s fees, it was decided he had no such problems, he was not a “disruptive physician” and there was no probable cause for any disciplinary action against him.

In some cases, it may even be necessary for the physician to take the extreme measure of suing the hospitals and the individuals who are behind such action. We have been required to do this on behalf of clients in a number of different cases. Often, this is the only way to get the truth of the matter out, especially when it related to economic competitors of the physician who may be in control of the hospital’s medical staff.

We expect to see even more of this type of accusation being made against physicians in the future as a result of recent publicity.

On July 9, 2008, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) published the following alert to health care organizations:

Sentinel Event Alert; Issue 40, July 9, 2008
Behaviors That Undermine a Culture of Safety

Intimidating and disruptive behaviors can foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care, and cause qualified clinicians, administrators and managers to seek new positions in more professional environments. Safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment. To assure quality and to promote a culture of safety, health care organizations must address the problem of behaviors that threaten the performance of the health care team.

For the entire text and greater detail on detection, analysis, and prevention, as provided to health care organizations by the JCAHO, you may refer to:

http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm

We believe that, as a result of the foregoing, we will see a much greater attempt on the part of hospitals to identify and discipline physicians on hospital staffs as “disruptive physicians” through hospital peer review procedures, and through reports to state licensing boards and the organizations that were established to monitor physicians with substance abuse problems (such as the Professionals Resource Network (PRN) in Florida). Any correspondence, warning, letter or counseling a physician receives that mentions the word “disruptive” or makes such an insinuation, should be taken very seriously by the physician. It should be responded to immediately, with facts, in an objective and dispassionate manner without attempting to “blame” anyone else. When in doubt, consult with an experienced board certified health law attorney.