In the past year, both The Joint Commission (TJC) and the American Medical Association (AMA) have addressed the issue of "disruptive behavior" by physicians, though they do not necessarily agree on what that term means or what should be done in response to such behavior.
The Joint Commission Issues Revised Standards
In 2008, TJC revised two of its Standards for Hospital Accreditation, LD 03.01.01 and MS 4.00. LD 03.01.01 now requires all hospitals to have a code of conduct that "defines acceptable, disruptive and inappropriate behaviors." In addition, "interpersonal skills" and "professionalism" have been added to the MS 4.00 list of core competencies to be reviewed by a hospital in making credentialing and privileging decisions. While neither Standard defines "disruptive" or "inappropriate" behavior, TJC explained in its July 9, 2008, Sentinel Event Alert, that such term has a very broad meaning. "Disruptive" or "inappropriate" behaviors, according to TJC, include both overt, egregious actions, such as "verbal outbursts and physical threats," as well as passive actions or inactions, such as "refusing to perform assigned tasks," "quietly exhibiting uncooperative attitudes during routine activities," "reluctance or refusal to answer questions, return phone calls or pages," "condescending language or voice intonation" and "impatience with questions." TJC goes on to advocate education of all staff on appropriate professional behavior, a task that may be very difficult when the medical staff is comprised of independent physicians, and a zero-tolerance policy for particularly bad actions such as assault and other criminal acts. While the Alert does promote "non-confrontational interventional strategies . . . progressing to disciplinary proceedings if behavior does not cease," it does not specifically address due process in disciplinary procedures.
The AMA Weighs In
TJC's broad definition of "disruptive" and "inappropriate" behavior, along with its silence on the issue of due process, led the AMA to draft its own Model Staff Code of Conduct. The AMA separates "inappropriate behavior," defined as "conduct that is unwarranted and is reasonably interpreted to be demeaning or offensive" and warranting a much lighter disciplinary approach, from "disruptive behavior," defined as "abusive conduct involving sexual or other forms of harassment, or other forms of verbal or non-verbal conduct that harms or intimidates others to the extent that quality of care or patient safety could be compromised" and warranting a more serious disciplinary approach. While persistent "inappropriate behavior" may rise to the level of "disruptive behavior," the AMA also has explicitly exempted other types of behavior from discipline altogether. These include good faith criticisms, actions encouraging clear communication, expressions of concern about a patient's care and safety, expressions of dissatisfaction with hospital policy if communicated through appropriate complaint procedures and the use of a cooperative approach to problem-solving. Like TJC, the AMA also advocates initial, non-confrontational approaches to resolve inappropriate behaviors. Unlike TJC, however, the AMA also strongly emphasizes the importance of not denying the accused physician due process throughout the disciplinary process.
Impact on Hospitals
Regardless of the approach adopted, the following conclusions are evident: hospitals must adopt a code of conduct and medical staff bylaws that address disruptive or inappropriate actions by physicians and other staff, and the hospital must preserve due process in disciplining such individuals. While TJC's definition of "inappropriate behavior" may be viewed by some to encompass a whole host of innocuous actions, hospitals must realize that not all aggressive actions, complaints or other such behaviors are subject to discipline. The hospital also must look to the statutory and case law in its state for guidance. Additionally, TJC's recommendations do not affect in any way the due-process safe harbor under the Health Care Quality Improvement Act. If medical staffs want to continue to enjoy immunity from money damages for their peer review conduct, they will continue to follow the due process procedures set forth in their bylaws, including providing the accused physician with adequate notice of and procedures for any hearing and conducting such hearings with fundamental fairness.