Remediation May Help Disruptive M.D.s; They Shouldn’t Be Confused With Whistleblowers

COSMOS - Nina Youngstrom

Although the older generation of nurses at a hospital has tolerated the boorish behavior of a longtime surgeon, times have changed and the newer nurses report him to the chief of surgery. They explain that Dr. Tim berates several scrub techs, calling them useless and stupid. His disruptive and unprofessional behavior can have adverse consequences for the hospital, which initially tries to turn things around with an informal conversation. When Dr. Tim’s improvement is short-lived, the hospital takes more formal action, including remediation.

This kind of situation, and variations on the theme, may play out in many hospitals, which risk poor morale, lawsuits and potential harm to patient safety, experts say.

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Remediation or discipline for unprofessional conduct should be reserved for objectively bad behaviors, said attorney Amy Shulman, with Outten & Golden LLP in New York City. “Most of the time, allegations that a physician is a bad actor raise a fairly complicated issue because a lot of times doctors who are labeled as troublemakers or disruptive are advocating for changes within the hospital system or raising a compliance complaint or complaint about patient safety, and that’s where they are getting blowback,” she explained. “People should be able to raise concerns and engage in debate and disagreement in the workplace without being labeled bad actors.”

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Beer in OR Leads to Suspension

For example, when Dr. Todd, an orthopedic surgeon (in another hypothetical), brought homemade beer to the operating room and asked staffers to try it while a patient was under anesthesia, he was reported to the administrator on call, Ms. Jennifer. Dr. Todd admitted he tasted the beer, and when she told him he couldn’t perform the surgery, he left the hospital. His conduct is determined to be a continuation of unprofessional behavior.

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Shulman cautioned, however, that alcoholism is considered a disability under the Americans with Disabilities Act (ADA) and may be a disability under state and local laws as well. “The hospital doesn’t have to tolerate or accommodate the practicing of medicine while under the influence of alcohol or illegal drugs,” she said. But if a doctor who is covered by the ADA asks for time off or schedule adjustments to attend a treatment program or medical appointments for alcoholism, they are “entitled to a reasonable accommodation unless the accommodation would cause an undue hardship, and the hospital and physician have to engage in an interactive process to see what kind of accommodation is reasonable,” she said.

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