AHLA's Speaking of Health Law

Informal Resolutions and Physician Discipline: Legal Considerations and Best Practices

September 27, 2022 AHLA Podcasts
AHLA's Speaking of Health Law
Informal Resolutions and Physician Discipline: Legal Considerations and Best Practices
Show Notes Transcript

Maggie Martin, Director, Crowe & Dunlevy, Hala Mouzaffar, Associate, Horty Springer and Mattern PC, and Christopher Adelman, Shareholder, Hall Render Killian Heath & Lyman PC, discuss what an informal resolution process is and the conditions under which this process is used as it relates to physician discipline. They also discuss legal considerations, including what is considered privileged, confidential, or reportable, and they provide recommendations and best practices for lawyers who are advising their clients on the informal resolution process. Maggie, Hala, and Christopher contributed to AHLA’s recently released brand-new title, The Complete Medical Staff, Peer Review, and Hearing Guidebook.

Watch the conversation here.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

This episode of ala Speaking of Health Law is brought to you by HLA members and donors like you. For more information, visit american health law.org .

Speaker 2:

Right . Hello. And thank you for joining us for this episode of the American Health Law Association's speaking of Health Law podcast. My name is Maggie Martin, and I am joined today by , um, Hala Musafa and Chris Adelman. Hi Chris . Hi, Hala . Hi. Hello . We will go around and introduce ourselves briefly and then move on to our topic for today. So I am Maggie Martin. I am a director in the Oklahoma City office of Crow and Dun Levy . I have a healthcare , regulatory and transactional practice here in Oklahoma representing healthcare systems, hospitals, and physicians on numerous matters, but particularly on medical staff and physician discipline matters, which is our topic for today.

Speaker 3:

Um, hi, I'm Hala . Uh , I'm an associate at Horde Springer Man , uh, for boutique health law firm based out of Pittsburgh, Pennsylvania. But we have clients in all 50 states. Uh, we work primarily as outside council for hospitals to assist in just a wide range of things from creating an updating medical staff governance documents to litigation, to issues that arise during the course of daily operations. Uh , as a relatively new attorney, I get the an opportunity to be involved in a little bit of every aspect of our practice. So I don't have a particular specialty in anything just yet, but I'm excited to be here with you both today and talk about this really cool area of options for medical staff leaders.

Speaker 4:

My name is Chris Oman. I am a shareholder with Hall Render in the Denver office, and we are a firm , uh, solely dedicated to the healthcare industry. My practice really focuses as , uh, outside general counsel to hospitals , uh, varying sizes with a focus on the medical staff aspect and compliance. I've been practicing 18 years, and I am happy to be here with you today.

Speaker 2:

Great. Looking forward to our conversation today. I think this is gonna be great. So, our topic is informal resolutions and physician discipline. Essentially, we're gonna be discussing what is an informal resolution process, how does it look, what are the legal considerations for an informal resolution process? And then give you kind of a checklist or some tips to consider when implementing informal resolution with your clients. So let's just go ahead and dig in guys. Um, I think kind of the first question is, what is an informal resolution process? What kind of , uh, informal resolutions do we often see, or how does that process look? Do either one of you wanna kick us off?

Speaker 4:

I'm happy to. Um, it is what , what it sounds like hits us an informal process, but but not too informal on addressing issues that arise , um, before they become significant , uh, to try to address them in a manner that is not as contentious. Uh, we need to remember here, we're talking about physicians and practitioners privileges, which is their livelihood. And when , uh, these issues escalate and adverse action is taken against a a practitioner's privileges , um, it it can have a , a significant impact on their career. And so we like to try to address these issues before they escalate and they become too contentious and, you know, everyone lawyers up and, and it makes it harder to address these problems.

Speaker 3:

Yeah, I think these , uh, informal resolutions are really aimed, like Chris said, at early detection and also that voluntary resolution of problems. So you really want the physician to be on board before things get too far.

Speaker 2:

Yes, I agree. I usually see these as kind of a first step to addressing some physician behavior that you kind of foresee becoming , um, more difficult or more problematic in the future. And kind of try to , um, prevent things from rising to the level of maybe becoming more of a peer review action or something that affects the physician's privileges in the future. Um, I also often see , um, a lot of my clients use some sort of informal resolution process to deal with maybe , um, more behavioral issues , um, issues , uh, maybe some anger management issues or , um, disruptive staff issues, things of that matter. Have you guys kind of seen those, this process used for issues like that as well?

Speaker 4:

I think it's, it's a , a great process for behavioral issues. Um , mm-hmm . <affirmative> often the behavioral issues start small and then escalate , um, especially if they go unaddressed. And I think another thing to pay attention to is that items that are good to address through the informal resolution process are items that sometimes would be ignored otherwise. And when you ignore these items, sometimes you're enabling a practitioner , uh, or reinforcing that behavior. So trying to address 'em early is a good idea. Uh , it is a very, a good tool for behavioral issues.

Speaker 2:

Mm-hmm. <affirmative>,

Speaker 3:

I think it's good for behavioral. Um, I have seen it in some instances where it is used to address some like minor clinical issues. Uh , so I, one instance where there was a physician that was straight out of residency had taken a little gap in what they were doing, and then they decided to go back into medicine. And when they got back, they weren't like solely up to the standard that the hospital wanted and the hospital got to use that like a , an informal resolution, send them for some additional remedial training, training. Um, so that was a nice little way to keep a , uh, physician on staff that they really liked, but just needed a little bit more and it didn't need to escalate to some formal review process.

Speaker 2:

Yeah, I think that sounds like a great way to handle issues similar to that. Yeah. Chris, were you gonna say something?

Speaker 4:

Well, I just think it , it , you know, also good for , uh, items such as documentation, maybe timeliness, completion of records , uh, that's quasi uh , clinical and behavioral kind of combined. Uh , it's , it's a good tool for those sort of issues as well.

Speaker 2:

Yes, I have seen it used often when a physician is behind on their charting and really needs to get caught up on , um, timeliness of charting and, and more administrative matters as well. Um , such as maybe just basic record keeping in the office , uh, especially physicians and clinics where they can get behind on that type of record keeping .

Speaker 4:

Agreed .

Speaker 2:

And when you're looking at kind of these informal resolutions, do you see this typically happening with the administration more so the medical staff such as a chief of staff or a chief medical officer? How have you typically seen this happen in your, with your clients?

Speaker 4:

You know, I think some of it depends on the avenue you want to go and, and when the hospital , uh, has identified an issue , um, you know, you is will continue to talk later about the concept of an employed physician or an independent physician, I think you have a , a path to pick on, are you going to address it through the administration or are you gonna go through the medical staff? Um , and there's considerations for both. Uh , I think , uh, you know , the nature of the problem probably dictates which route you go.

Speaker 3:

I, I agree with that. And I think the type of informal resolution that you choose to take also would determine which route you wanna go. So something like , uh, a meeting maybe would be better with some medical staff leaders, not so much administration , um, stuff like that.

Speaker 2:

Yeah, I would agree as well, especially as we'll talk, like Chris said, as we'll talk later about employed physicians. I've seen , um, some effective methods of dealing with more so the medical staff to resolve these things informally , um, for certain issues and then other, and at a at other times it's better to go through the administration or maybe even an HR leader to deal with some of these matters more so through the employment route.

Speaker 4:

And I would say whichever route you pick, having , uh, a dedicated individual or an identified individual who understands the process and knows how to apply it is very good. Uh , if you just let anyone jump in for the informal resolution process, oftentimes , um, it can deviate from a nice , uh, well thought out process and you might not end up with the protections or the results you want .

Speaker 2:

Yes, agree. I think having a well written policy or drafted policy around how to handle disruptive physician behavior in , in an informal resolution process, whether that be a separate policy and procedure applicable to the medical staff or set out in the bylaws, I think is something very important so that everyone involved knows what, what is the path forward, who's responsible for addressing these matters. Um , if someone has a complaint or an issue, who do they bring it to? Do they just talk to anybody? Or how has that elevated through the chain of command? Um, and, and who should be addressing that issue? So our next kind of , uh, item we wanted to consider is what are some of the legal considerations for an informal resolution process? I think one of the main questions that, you know, we often get, and something that I know our , our audience is curious about is when you're dealing with these, what would be considered privileged or confidential, can you maintain any sort of confidentiality around , um, the conversations, the records that may be generated from these informal , uh, processes?

Speaker 4:

Uh , you certainly can. I think this comes back to what you were discussing before, of having well written policies , uh, medical staff bylaws that identify an informal resolution process and set forth the procedure that you will follow when you're in that process. And also bringing it under the veil of peer review. It is a peer review process and, you know , peer review doesn't have to be only adverse action. Uh , there's a lot of remedial steps that we'd like to see before we get there. And so , uh, if you, if you have well written bylaws that identify the process that bring it into the peer review process, you follow that, you're gonna have a lot better chance of having some peer review protection , uh, and HWA immunity. Um, so I think it's very important to have that, have that set out in writing.

Speaker 3:

Yeah. And I think , uh, you know, every state has their own peer review statute , so I don't think it could be overstated enough that it's good to check back with that statute and then how the courts have interpreted to see that everything that you're creating is covered and make sure that you're handling everything correctly, especially with some recent court opinions that have kind of blown some peer review protection in some areas, and then in other states it's kind of helped it out. So it's really important to check that, to make sure that you're following your own state's guidelines and don't ruin it for yourself.

Speaker 2:

Yeah, I definitely agree. I know here in Oklahoma we have a , a bit of a broader definition of peer review process and what is peer review information such that we could probably try to get a lot of the , um, records or information involved in these informal processes covered under the peer review privilege in our state. Um, I have found it interesting, I have seen a number of kind of plaintiff's attorneys attempting to kind of do away with some state peer review protections, mainly around negligent credentialing cases. So I think there's some potential battles out there to kind of redefine or reconsider what is peer review on a state level. And so I think as you're dealing with this, always make sure you check back into your own state's laws , um, to ensure that, you know, you're complying with what is required under those peer review statutes to keep this information confidential or privileged , um, and, and keep up to date with the current , um, case law that is out there regarding these statutes, because I think there's consistent change and , um, ongoing activity in these areas. Have you guys seen that in some of the states you, you , uh, practice in?

Speaker 3:

Yeah, I think , uh, dealing with, because we have clients all over, so I get a little bit of a little bit of taste of everything, and you'll see some states where the protection's pretty broad and you can advise the hospital to do, you know, anything's really covered under that. But there's some states where that who can get the information, how far can spread is very well defined. And the courts have kept it very narrow . So when sometimes when you're doing stuff you don't wanna , you don't wanna have too much of a paper trail of things and you wanna keep things conversational, not down to writing. So I think it really varies.

Speaker 2:

Yeah.

Speaker 4:

And I think both of your highlighting the importance of knowing your state law, knowing where your facility is, and again, it goes back to having that documented process that stays within those guidelines. And it is always changing. Certainly plaintiff's bar is , uh, we see in all states, I think , uh, always trying to chip away at that peer review protection.

Speaker 2:

Right. And so let's talk a little bit about reportability. What could be reportable , um, especially to the National Practitioner Data Bank . Have you , um, what has been your experience in this area?

Speaker 4:

I think at a , at a high level, if you're not taking adverse action , uh, you're, you're not reporting to the data bank. Um, but again, state law does apply here and , uh, you know, the medical boards in different states have requirements of their physicians , uh, as an example, might be required to report other impaired physicians. And so when you, you know, if you're dealing with the informal resolution process for maybe , uh, uh, substance abuse impairment or , uh, maybe a DUI or something along those lines , um, it's possible that there's a state reporting requirement that is separate than a national practitioner data bank requirement. And so understanding, again, where you are is very important. But I think if you're , if you're stopping shy of adverse action, you are more likely than not, you are not gonna report to the National Practitioner Data Bank .

Speaker 2:

Yeah, agreed. Yeah. Unless you have that , um, adverse action for longer than 30 days, I, we, this is a great process to use so that you don't have to report, many of my clients don't wanna be reporting to the National Practitioner Data Bank , um, if they don't have to. And so they like to use these processes to kind of address issues before they become such that they rise to the level of, you know, affecting a practitioner's privileges. And I have seen , um, cases though, where the behavior is considered unprofessional conduct in this state. And so there's oftentimes a report that may need to be made though to the state licensure board , um, depending on the state statutes.

Speaker 3:

Yeah , I see the same thing. You know, nobody wants to report to the national practitioner database and no one wants to get reported to them . So this is a great tool for everybody, I think .

Speaker 2:

Agreed.

Speaker 4:

And that's why I think we see a lot of informal resolution is a voluntary process, the physicians agreeing to these things, and I think being able to clearly explain the, the downside of not being voluntary to a physician helps to get them to agree.

Speaker 2:

Agreed. And so when we're dealing with employed physicians, now, I know depending on your state's corporate practice of medicine laws or maybe other restrictions, you may not typically be employing physicians, but for those that are, what are some considerations you guys have considered , um, as you deal with employed physicians or even independent contractors?

Speaker 4:

And I think , um, one of the biggest considerations with an employed physician, or one way to look at it is when you have an issue , uh, behavioral issue, a clinical issue, you almost get two bites at the apple. Or you have a choice here, do you go the employment route? You know , there might be an employment contract or policies that are in place, and you go through the HR process typically , uh, maybe compliance sometimes, or do you go the medical staff route? And I think one big consideration is what protections are you giving up? If you go through the HR process, typically those actions , uh, and , and the documentation is not protected and is discoverable. Um , and so you need to consider, is that an issue? Is it gonna be an issue moving forward? I think on the flip side, you know , we see some medical staffs that just don't quite hold their colleagues accountable the same as a administration might want to. And so really striking that balance , uh, is, is somewhat delicate. Um, but I think you do have a , you know , it's something to consider. You have the HR path when they are employed.

Speaker 3:

I see the same thing as Chris. Well , I think while HR is an option, I think a lot of hospitals tend to gear away from it just because it's not as defined in their bylaw. Like as you have options in the bylaws, things are a little bit smoother through there .

Speaker 4:

And , and I think politically too, when HR is telling a physician practitioner what to do, it comes across differently than when their colleagues are telling them what to do. And I have seen that it, it , it's received a little better when your peer is telling you, Look, here's the , here's the expectation and you're failing to meet it. Here's what you can do to meet, it is different than the HR director who, you know, typically is not a practitioner , uh, and wasn't ever a practitioner.

Speaker 2:

Yeah, I agree. I've seen it. Uh , I've seen disciplinary processes go over better. When you have a practitioner to practitioner conversation, it tends to be better. However, I have seen medical staffs that are hesitant to discipline when maybe they should. And sometimes that HR process can be helpful , um, to avoid maybe an E E O C charge. If you have a practitioner who's particularly , um, maybe his behavior's harassment or it creates kind of a violent workplace or a disruptive workplace, you do wanna make sure that you're addressing that appropriately so that you don't kind of bring on those potential E E O C claims from other employees who are the subject or the, you know, the victim of the potential harassment or, you know, whatever behavior the physician is exhibiting.

Speaker 4:

Absolutely. And , and I think in those circumstances, sometimes you have parallel paths that you have the medical staff taking action and you have hospital administration through their HR department , uh, taking action.

Speaker 2:

Yeah, I've seen that too , where HR takes action and wants to terminate under the employment agreement, but yet that doesn't trigger any sort of termination of medical staff privileges. And then, so the medical staff is looking at the option of, well, how do we address this from through the bylaws and the , and the disciplinary processes set forth there?

Speaker 4:

And without getting too far off track, if you're lucky enough that in your employment agreement to have a automatic relinquishment of privileges upon termination of the contract, that is , that is a nice savings clause where you can take action, have a physician leave the medical staff without having , uh, triggered a fair hearing or any sort of , uh, medical staff , uh, action.

Speaker 2:

Oh, I agree, Chris, And I don't think that's off track at all, because it's something I always recommend to my clients is, Okay, how can we modify your bylaws or look at your employment agreement templates to ensure that there's language in there that allows you to , um, have co-term , um, privileges with the termination of the employment agreement.

Speaker 4:

And I think typically when, when that happens, when the privileges terminate through the employment agreement, we typically don't consider that a adverse action and it doesn't end up being reportable.

Speaker 2:

Correct. Agreed. It would be considered an automatic relinquishment. All right . So as we , uh, are looking at informal resolution processes, what are kind of some things that you guys would recommend for , um, uh, clients to maybe check off or other attorneys to consider as they're advising their clients on these matters?

Speaker 3:

I, I think the big important thing about all the informal resolutions is the importance of documenting every step. Even those conversations in the hallway , uh, or a coffee meeting with this CMO or something like that to follow it up with a letter. So you have in writing something that happened. Uh , we have clients that do a great job of this, so they contact us because things have escalated past that inform resolution. Um, and they'll send us a Word document. It just has the date of things, the concern raised and how they addressed it, and any documentation they have of that. And I think stuff like that is really helpful to set yourself up if you have to get to that form resolution process. So have things, a process in place that is preparing you for the formal resolution process.

Speaker 4:

Yeah, a absolutely , uh, well written bylaws that identify the process, bring it in under the peer review veil , and then even the use of maybe some template , uh, letters or follow up reports when these meetings and these encounters do take place that are trying to help continue to establish that this was a peer review action, that this was part of the bylaws , uh, really that consistency, you know , is very helpful. Oftentimes, you will have the, the action and the meeting take place and then months or years later, you're trying to assert a privilege. And so having that documented and not having to recreate what happened is , are these people still in the organization? Uh , it , it really does lend some credibility to the concept that, yes, this was peer review, here is our process, we follow it every time.

Speaker 2:

I agree with both of you. Yes. And , um, utilizing policies and procedures that can kind of facilitate , um, the reporting of these matters and, and identifying which , uh, leader or individual in the facility or the medical staff addresses these or can be very helpful as well.

Speaker 4:

And training those, those people who are gonna be involved in the process , uh, to , to understand what it is. And I mean, we , not to not to be self-serving, but check with legal. You wanna be sure there are changes in the law. There is a process that it , that can take place where you are more likely to obtain a privilege , uh, than not. And so really being knowledgeable about what your bylaws say, what the state law says, what the federal law says is very helpful.

Speaker 2:

Agreed legal should be the first call. All right . Any other last thoughts before we wrap up ?

Speaker 4:

I think , uh, the informal resolution process is a very good one . And as we say historically , there's a lot of small issues that have been let go. And over time, you know, another small issue happens and it's the straw that breaks the camel's back. And then you're trying to remember all these other bad things that happened and how were they resolved. And so if you really have a well thought out, well established plan and you follow it, it is going to help you in the long run.

Speaker 3:

And I think inform resolutions are a great way for hospitals to start addressing maybe some behavior issues that have been persistent over time. It's an easy starting point that any hospital can take .

Speaker 2:

I agree with you both. I think that's a great place to end. Um , I have enjoyed our conversation today. Thank you guys so much for your time. Um, and we thank everyone listening. If you have , um, more interest in this topic or need more information, we would direct you to , um, an ala publication of which we all contributed. That is the complete medical staff peer review and hearing guidebook. Oh, there we go, Chris. He's he's holding it up. <laugh>. It is . You

Speaker 4:

All work so hard on this. It's , it's so much great information. I agree. It's a wonderful resource.

Speaker 2:

It's a great resource that kind of digs into some of the issues we've discussed today and, and , and many, many more. It's very comprehensive. So we do direct you to that publication for , um, you know, guidance on this topic. So we thank you all for listening, and I thank you. Hey , Chris , it was great to chat with you today . You too .

Speaker 4:

You too . Have a great day .

Speaker 2:

Thanks , you too .

Speaker 1:

Thank you for listening. If you enjoyed this episode, be sure to subscribe to ALA Speaking of Health Law wherever you get your podcasts. To learn more about ALA and the educational resources available to the health law community, visit American health law.org .