Leadership and Management
peachewsrenm_17
WhatCanBeDoneAboutADisruptivePhysician.pdf
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What Can Be Done About A Disruptive Physician?
A Legal Analysis
Samuel D. Hodge, Jr.*
House, a medical drama about an infectious disease
specialist, entertained television audiences for years as the
irascible and pill-popping physician solved medical mysteries
with the zeal of a modern-day Sherlock Holmes while playing
mind games with his coworkers. Uncanny intuition and
eccentric thinking earned the physician great respect but his
bullish behavior and antisocial tendencies were a distraction at
the hospital.1 Not only did Dr. House clash with his fellow
physicians but he also insulted patients, flouted hospital rules
and caused great conflict with the hospital administrators.2 In
fact, his actions often crossed the line into obnoxiousness and
rage causing the hospital staff to tiptoe around his dysfunctional
behavior.3
In the real world, Dr. House would be labeled a “disruptive
physician” and would be subjected to disciplinary action
including the loss of his hospital privileges. This article will
explore the problems caused by being labeled a disruptive
physician in a legal context with a focus on the peer review
process and the relevant court cases.
TABLE OF CONTENTS
I. Introduction...................................................................... 127
* The author is a professor at Temple University, where he teaches both law and anatomy. He also serves as a mediator and neutral arbitrator for the Dispute Resolution Institute in Philadelphia and is considered one of the most popular CLE speakers in the country. Professor Hodge has authored more than 175 articles on the intersection between law and medicine, has published ten books and has been named a top lawyer in Pennsylvania on multiple occasions.
1. House (TV Series), Wɪᴋɪᴘᴇᴅɪᴀ, https://en.wikipedia.org/wiki/House_ (TV_series), (last visited Sept. 14, 2019).
2. Id.
3. Bob Wachter, Gregory House, MD, RIP, HOSPITAL LEADER BLOG (May 21, 2012), https://thehospitalleader.org/gregory-house-md-rip/.
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2019 DISRUPTIVE PHYSICIAN? 127
II. What is a Disruptive Physician? .................................. 128
III. The Problem .................................................................. 129
A. Statistics .................................................................... 129
B. Conduct That Is Disruptive ....................................... 130
IV. Remedial Measures ....................................................... 131
A. The American Medical Association ........................... 132
B. The Joint Commission ............................................... 133
C. Federation of State Medical Boards .......................... 134
D. Response by the States .............................................. 135
V. Peer Review Immunity ................................................. 136
VI. Court Action .................................................................. 139
A. Immunity under the Healthcare Quality Improvement
Act (HCQIA) ........................................................................ 141
B. Reliance upon Bylaws and Procedures ..................... 147
C. Disruptive Conduct as Justification for Suspension . 150
VII. Conclusion ..................................................................... 152
I. Introduction
The practice of medicine is filled with stress from being
involved in life and death decisions, to declining revenues while
practicing in a heavily regulated environment.4 These facts have
triggered the quick response by some physicians to use
regulatory schemes to advance their own personal agendas and
to protect personal interests.5 Unfortunately, these rules and
regulations, which are not well understood by most medical
professionals, have caused a great deal of animosity and
frustration, leading some doctors to become “disruptive
physicians.”6
The troublesome physician causes untold medical, legal,
and psychological problems in the workforce,7 and most health
care managers are ill prepared to deal with these doctors.8 For
4. Michael J. Grogan & Paul Knechtges, The Disruptive Physician: A Legal Perspective, 20 Aᴄᴀᴅ. Rᴀᴅɪᴏʟᴏɢʏ 9, 1069–73 (2013).
5. Zachary L. Erwin, Analyzing the Disruptive Physician: How State and Federal Courts Should Handle Whistleblower Cases Brought by Disruptive Physicians, 44 Dᴜǫ. L. Rᴇᴠ. 275, 275 (2006).
6. Id. at 276.
7. Id.
8. Eugene Fibuch & Jennifer J. Robertson, Bringing Value: Dealing Fairly With Disruptive Physicians, AM. ASS’N PHYSICIAN LEADERSHIP (Mar. 8, 2019), https://www.physicianleaders.org/news/bringing-value-dealing-fairly-
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128 PACE LAW REVIEW 40.1
example, disruptive physicians can lead to a hostile work
environment, cause morale problems, increased litigation,
compromised patient care, communication issues, and
obstruction in the regular running of the organization.9 As noted
by Alexander Vaccaro M.D., the President of the Rothman
Institute, “There is no place in medicine for disruptive
physicians and every study that has examined the issue has
concluded that a disruptive doctor increases the chance of an
adverse event. In fact, these physicians have a higher
complication rate and receive negative feedback in patient
satisfaction surveys.”10 Addressing this conduct head-on is
critical, but recognizing the proper course of remedial action can
be a daunting task.11
II. What is a Disruptive Physician?
No single definition exits to describe a disruptive physician
but a number of organizations and court decisions have
addressed the issue. Some medical professionals claim that they
have an “instinctive understanding” of what represents
disruptive behavior and do not need guidance.12 On the other
hand, the Court in Gordon v. Lewistown defines a disruptive
physician as one who is unruly, “contentious, threatening,
unreachable, insulting and frequently litigious. He will not, or
cannot, play by the rules, nor is he able to relate to or work well
with others.”13 It is important to note, however, that a sole
occurrence of troublesome behavior is inadequate to be labeled a
disruptive physician and anticipating complete harmony in the
workplace is unrealistic. The tag should also not be used to
disruptive-physicians.
9. Erwin, supra note 5, at 275–76.
10. Alexander Vaccaro, M.D., Ph.D, MBA, is an orthopedic surgeon and the President of Rothman Institute, one of the largest orthopedic practices in the country. He is also the Richard H. Rothman Professor and Chair in the Department of Orthopaedic Surgery, and a Professor of Neurosurgery at Thomas Jefferson University in Philadelphia, Pennsylvania. His comments were obtained in a telephone interview conducted by the author on September 20, 2019.
11. Alicia Gallegos, Disruptive Physicians: Is This an HR or MEC Issue?, MDEDGE (Sept. 16, 2018), https://www.mdedge.com/internalmedicine/article /174921/businessmedicine/disruptive-physicians-hr-or-mec-issue.
12. Grogan & Knechtges, supra note 4, at 2.
13. Gordon v. Lewistown Hosp., 714 A.2d 539, 544 (Pa. Commw. Ct. 1998).
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2019 DISRUPTIVE PHYSICIAN? 129
describe a doctor who has had a bad day or demonstrates an
occasional outburst that is out of character. Nor should the label
apply to a physician who has quirks, tends to be disagreeable, or
annoys others on the medical staff.14 Rather, the
characterization should be reserved for those who show a
pattern of seriously inappropriate conduct that is “deep-seated
and habitual.”15 A single incident that is improper must still be
addressed but the label “disruptive physician” is reserved for
more sustained and inappropriate behaviors over a period of
time.16
III. The Problem
As the sophistication and intricacies of medicine and
managed health care increase, the need to work in a conducive
atmosphere of cooperation intensifies. Contemporaneously, the
pressures, burdens, and distractions involving physicians
correspondingly escalate. Because doctors occupy an esteemed
position in society, inappropriate actions by these individuals
become magnified and have a greater probability for
disruption.17
Acknowledged in the medical literature for more than a
century,18 there is little evidence to demonstrate that the
number of episodes of disruptive physicians has increased in
recent years, but the problem has moved to the forefront of
healthcare management. Likewise, doctors who demonstrate
inappropriate behavior are being sanctioned with greater
frequency.19
A. Statistics
14. Grogan & Knechtges, supra note 4, at 3; See also Mahmoodian v. United Hosp. Ctr., 404 S.E.2d 750 (W. Va. 1991).
15. Norman T. Reynolds, Disruptive Physician Behavior: Use and Misuse of the Label, 98 J. MED. REG. 1, 10 (2012).
16. Id. at 9–10.
17. Brian J. Santin & Krista L. Kaups, The Disruptive Physician: Addressing the Issues, BULL. AM. COLL. SURGEONS (Feb. 1, 2015), http://bulletin.facs.org/2015/02/the-disruptive-physician-addressing-the- issues/.
18. Llewellyn E. Piper, Addressing the Phenomenon of Disruptive Physician Behavior, 22 HEALTH CARE MANAGER 335, 335–39 (2003).
19. Santin & Kaups, supra note 17.
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130 PACE LAW REVIEW 40.1
Most physicians and other health care workers have seen
their contemporaries engage in disruptive conduct with co-
employees, patients, and other individuals.20 In fact, more than
seventy percent of doctors surveyed indicate that disruptive
conduct happens at least once a month at their workplace, and
more than ten percent admit that such episodes occur on a daily
basis.21 This disruptive behavior runs the gamut from cursing to
the refusal to follow established procedures.22 Most responders
expressed concern about the consequences of this inappropriate
conduct on their practices, and nearly all are of the opinion that
the disruptive physician affects patient care. Surprisingly,
twenty-six percent of doctors acknowledged that they have
engaged in disruptive conduct at some point during their careers
and the most proffered reasons for these inappropriate actions
are “workload and learned behaviors.”23
Demographically, nurses are the main victims of this
unseemly conduct,24 and a number have left their jobs as a
result.25 The greatest offenders are those with the highest stress
level jobs, with surgeons being labeled the greatest culprits,
followed by obstetricians/gynecologists, orthopedic doctors, and
primary care physicians.26 Other specialists with less frequent
episodes include cardiologists, anesthesiologists,
ophthalmologists, cardiac/vascular surgeons, kidney specialists,
radiologists, oncologists, and psychiatrists.27
B. Conduct That Is Disruptive
20. Id.
21. Owen MacDonald, Disruptive Physician Behavior, QUANTIAMD 1, 2 (May 15, 2011), http://www.quantiamd.com/q-qcp/Disruptive_Physician_ Behavior.pdf.
22. Id. at 2.
23. Id.
24. Stephen Lazoritz, Don’t Tolerate Disruptive Physician Behavior, AM. NURSE TODAY (Apr. 11, 2011), https://www.americannursetoday.com/dont- tolerate-disruptive-physician-behavior-2/.
25. Charles P. Samenow et. al., ACME Course Aimed at Addressing Disruptive Physician Behavior, PHYSICIAN EXEC. 32 (Jan.–Feb. 2008), https://www.mc.vanderbilt.edu/root/pdfs/cph/Samenow.pdf.
26. Alan H. Rosenstein et. al., Legal Entanglements in Dealing with Disruptive Behavior, PHYSICIAN LEADERSHIP J., May–June 2016, at 46, 48 fig. 2.
27. Id.
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2019 DISRUPTIVE PHYSICIAN? 131
Inappropriate conduct takes many forms, with the highest
level of encounters being degrading comments, insults, and
yelling. Other types of disruptive behavior are less obvious but
no less concerning. These include a physician’s refusal to
cooperate with others and the inability to adhere to established
protocols. Conduct which occurs less frequently includes
physician assaults, discriminatory behavior, incompetence,
retaliation, spreading malicious rumors, throwing objects, and
substance abuse.28 Female physicians are slightly less likely to
engage in disruptive conduct as compared to their male
counterparts.29
It is believed that disruptive physicians direct their actions
against those who are perceived as having a status below the
doctor. It is theorized that the hierarchical character of the
medical profession has produced alphas who feel compelled to
flaunt their status. Therefore, it should come as no surprise that
one study ascertained that fifty percent of the conflicts dealing
with disruptive doctors involve coworkers with less professional
clout.30
Critics of this label maintain that being designated a
disruptive physician has been applied improperly by hospital
management to jettison unwanted competition and anti-
administration practices. It is also asserted that the phrase
“disruptive physician” is buried in the bylaws and left
intentionally broad, subjective, and undefined so that health
care executives can construe it anyway they wish.31 Therefore,
it is critical that hospitals implement rules and regulations that
will assist them in the handling of disruptive doctors while
shielding physicians from bogus claims of disruptive conduct.32
IV. Remedial Measures
28. MacDonald, supra note 21, at 4–5.
29. Id. at 5.
30. Brian M. Peters, Disruptive or Targeted Physician?: Compliance Strategies, HOSP. & HEALTH SYS. INST., February 9, 2006, Am. Health Law. Ass’n, AHLA-Papers P0209-608 (citing David O. Weber, Poll Results: Doctors’ Disruptive Behavior Disturbs Physician Leaders, PHYSICIAN EXEC., Sept.–Oct. 2004, at 6).
31. Lawrence R. Huntoon, Abuse of the “Disruptive Physician” Clause, 9 J. AM. PHYSICIANS AND SURGEONS 68, 68 (2004).
32. Peters, supra note 30, at 4.
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A. The American Medical Association
The first remedial attempt by the medical profession
occurred at the 1999 Annual Meeting of the AMA House of
Delegates who adopted Resolution 9 (A-99) dealing with the
disruptive physician. The pronouncement requested the AMA
to “identify and study behavior by physicians that is disruptive
to high quality patient care.”33 The end result was the
enactment of AMA Policy E-9.045 titled Physicians with
Disruptive Behavior. This rule of ethics labels disruptive
behavior as personal conduct, whether verbal or physical, that
negatively affects or that potentially may adversely impact
patient care. This inappropriate conduct is not limited to those
actions that interfere with one’s ability to work with others on
the health care team. Physician criticism, however, that is
provided in good faith with the intent of improving patient care
should not be classified as disruptive behavior.34
The AMA also published a Model Medical Code of Conduct
that can be used by health care facilities in drafting their
bylaws.35 This Code defines disruptive behavior as “any abusive
conduct including sexual or other forms of harassment, or other
forms of verbal or nonverbal conduct that harms or intimidates
others to the extent that the quality of care or patient safety
likely would be compromised.”36 Inappropriate behavior is
discouraged, but if such conduct persists, it will be transformed
into disruptive behavior. Examples include:
belittling or berating patients or members of their
care team, use of profanity or disrespectful
33. Dudley M. Stewart, Jr., Physicians with Disruptive Behavior, Report of the Council on Ethical and Judicial Affairs, CEJA Report 3-1-09, AMERICAN
MEDICAL ASS’N 1, 1 (2009), https://www.ama-assn.org/sites/ama-assn.org/ files /corp/media-browser/public/about-ama/councils/Council%20Reports/council- on-ethics-and-judicial-affairs/i09-ceja-physicians-disruptive-behavior.pdf.
34. Id. at 2 (citing AMA Opinion 9.045 – Physicians with Disruptive Behavior).
35. AMERICAN MEDICAL ASS’N, Model Medical Staff Code of Conduct (2012), https://www.slideshare.net/BarneyCohen/amamedicalstaffcodeofconduct (last visited Oct.4, 2019).
36. Id. at 1.
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language, inappropriate comments written in a
patient’s chart, blatant failure to respond to a
patient’s needs, deliberate lack of cooperation
with members of the medical staff, the deliberate
refusal to return calls, and use of intentionally
demeaning language that negatively impacts
patient care.37
The Code goes on to note that complaints about a physician
should be in writing and directed to the president of the medical
staff. A copy of the complaint, Code of Conduct, and bylaws
should be given to the accused within thirty days. In turn, the
offending member shall have the opportunity to respond in
writing.38
B. The Joint Commission
The Joint Commission, which is the accrediting agency for
more than 22,000 health care organizations in the United
States,39 published Standard LD.03.01.01. This provision
acknowledges that a disruptive physician engages in “behavior
that intimidates others and affects morale or staff turnover[,]
undermines a culture of safety and can be harmful to patient
care.”40 As a result, the Joint Commission requires health care
organizations to establish a code of conduct that defines
behaviors that are “acceptable,” “disruptive,” and
“inappropriate.”41
This problem is so significant that the Joint Commission
subsequently issued a Sentinel Event Alert which notes that
intimidating and disruptive behaviors can lead to medical
errors, poor patient satisfaction, increased cost of care, and
37. Id. at 2–3.
38. Id. at 5.
39. About the Joint Commission, JOINT COMMISSION, https:// www.jointcommission.org/about_us/about_the_joint_commission_main.aspx (last visited Oct. 4, 2019).
40. LD.03.01.01: Leaders Create and Maintain a Culture of Safety and Quality Throughout the Hospital, JOINT COMMISSION 1, 1 https:// medschool.ucla.edu/workfiles/Site-AcademicAffairs/Events/17.Joint- Commission.pdf (last visited Oct. 4, 2019).
41. Stewart, Jr., supra note 33, at 1–2.
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134 PACE LAW REVIEW 40.1
avoidable adverse outcomes.42 In response to criticism that the
term “disruptive behavior” is both ambiguous and inaccurate,
the definition was changed to “behavior or behaviors that
undermine a culture of safety.”43
C. Federation of State Medical Boards
The Federation of State Medical Boards recognized the need
to issue guidance on the disruptive physician when it issued the
2000 Report of the Special Committee on Professional Conduct
and Ethics, as well as in the 2011 Policy on Physician
Impairment.44 The Special Committee’s Report defines
disruptive behavior as “personal interaction with physicians,
hospital personnel, patients, family members, or others that
interferes with patient care.”45 Furthermore, disruptive
behavior is not a diagnosis but a descriptive label that impairs
the ability of the healthcare team to operate effectively, thereby
placing patients at risk. More specifically, it identified several
ways in which disruptive conduct interferes with the
doctor/patient relationship:
1. The physician’s inappropriate behaviors or emotional
outbursts shift the physician’s focus from the patient,
which can result in errors in clinical judgment and
performance.
2. Physician’s emotional outbursts or other inappropriate
behavior can increase apprehension and anxiety of the
physician’s patients as well as other patients who may
witness such outbursts and inappropriate behavior.
42. JOINT COMMISSION, Behaviors that Undermine a Culture of Safety (July 9, 2008), https://www.jointcommission.org/assets/1/18/SEA_40.pdf.
43. Joint Commission Changes Term “Disruptive Behavior” in the Standards, HCPRO (Nov. 10, 2011), https://www.hcpro.com/ACC-273165- 851/Joint-Commission-changes-term-disruptive-behavior-in-the- standards.html.
44. Reynolds, supra note 15, at 8.
45. Federation of State Medical Boards, Report of the Special Committee on Professional Conduct and Ethics 1, 5, (Apr. 2000), http://www.fsmb.org /siteassets/advocacy/policies/report-of-the-special-committee-on-professional- conduct-and-ethics.pdf.
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2019 DISRUPTIVE PHYSICIAN? 135
3. Decreased effectiveness of the entire health team.
Peers, nurses, allied health professionals, and other
members of the health care team may be intimidated and
anxious, causing a loss of their clinical focus and
productivity and thereby increasing the propensity for
medical errors.
4. Decrease in effective communications among the
health care team.46
The Report went on to note that disruptive behavior in
doctors is frequently the result of underlying pathology such as:
“(1) addiction (2) stress (3) psychiatric disorders (e.g., bipolar
disorder) or (4) personality disorders (e.g., narcissism).”47
Personality disorders seem to be the cause of most referrals for
disruptive behavior which may be treated, without or concurrent
with punitive action.48
D. Response by the States
States have also taken steps to curb unprofessional medical
conduct. For instance, New York lists a number of ways that
individuals can engage in professional misconduct under its
public health law including “willfully harassing, abusing, or
intimidating a patient either physically or verbally.”49 The
Texas Medical Association deems a health care professional who
engages in conduct that leads to a breakdown in safety measures
or acts in an intimidating manner towards a member of the
medical staff to be engaged in disruptive behavior.50
Pennsylvania enacted the Peer Review Protection Act which
provides that one offering information to any review
organization shall be granted immunity unless the information
is not related to the functions of the review entity or if the
46. Id. at 5–6.
47. Id. at 6.
48. Id.
49. N.Y. Educ. § 6530(31) (McKinney 2008).
50. Crystal Conde, Joint Commission Tries to Regulate Physicians’ Behavior, TEX. MED. (Dec. 2009), https://www.texmed.org/Template.aspx?id =8189.
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136 PACE LAW REVIEW 40.1
materials provided are false and the individual knew or had
reason to think the material was false.51
Failure of the facility to implement remedial measure to
deal with disruptive physicians can result in expensive
litigation. This is evidenced by a number of costly
discrimination/harassment lawsuits against health care
facilities as the result of the disruptive physician.52 For
instance, Chopourian v. Mercy General Hospital involved a
federal matter in which the jury awarded $168 million to a forty-
five-year-old physician’s assistant who claimed that she was
tormented and harassed by the surgeons and medical staff.53
The plaintiff testified that one harasser informed her, “you’ll
give in to me” and a surgeon told her that “I’m horny” and
slapped her buttocks.54 A “bullying surgeon” stuck her with a
needle and another called her a “stupid chick” in the operating
room.55
V. Peer Review Immunity
Interacting with disruptive physicians can be a time-
consuming and emotionally exhausting endeavor for both
management and the organization. Nevertheless, health care
leaders have a duty to investigate and stop unprofessional
conduct in the workplace.56 This requires the implementation of
an organized approach such as educating the staff as to what
constitutes improper behavior and to clearly identify the
penalties for engaging in such conduct.57 For example, a code of
conduct or bylaws should be created which applies to all
members of the health care team. These directives should define
what constitutes appropriate and inappropriate behavior in
51. 63 PA. STAT. and CONS. STAT. ANN. § 425.3(a) (West 2019).
52. Alice Gosfield, 2013 Health Law Handbook, Section 11:2. Scope of the Problem, at *4.
53. Eugene Lee, Largest Sexual Harassment Verdict in History - $168 Million, CAL. LAB. & EMP. L., https://calaborlaw.com/largest-sexual- harassment-verdict-in-history-168-million/ (last visited Oct. 4, 2019). See also Chopourian v. Catholic Healthcare West, No. CIV S–09–2972, 2012 WL 1551728 (E.D. Cal. 2012).
54. Lee, supra note 53.
55. Gosfield, supra note 52, at *4.
56. Fibuch & Robertson, supra note 8.
57. Id.
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2019 DISRUPTIVE PHYSICIAN? 137
clear and precise language and contain a well-defined due
process clause with an appeal process. In turn, each physician
should be asked to read and sign the document indicating an
understanding of the rules.58
A number of hospitals publish these rules under the
category of “professionalism,” and mandate that physicians
exhibit a minimum level of acceptable behavior towards co-
workers and patients. Any violation of the rules may act as
support for starting disciplinary action to address the conduct.59
While differences in language and procedures among health care
facilities is expected, common elements, include: Clearly
explained behaviors that are expected; The repercussions for
deviation from these behaviors should be explained in detail;
Penalties should be staggered according to the severity of the
incident; Those who commit repeat violations will be treated
more harshly; and Every incident must be reported and
documented.60
This plan of action helps foster a positive atmosphere within
the organization and members of the team are put on notice as
to what is expected of them in the workplace.61
Discipline against a disruptive physician, however, can
result in retaliation by the offender, especially if the doctor’s
hospital privileges are suspended.62 A key event in this regard
occurred in 1988 when the United States Supreme Court decided
Patrick v. Burget.63 This matter involved whether Oregon law
protected physicians against federal antitrust liability as the
result of their serving on a peer-review committee.64 The facts
reveal that the plaintiff declined an invitation by the defendants
to join their surgical practice.65 Instead, the plaintiff opened his
own clinic but experienced problems in his dealings with the
defendants.66 The dispute escalated into a peer-review
proceeding to terminate the plaintiff’s hospital privileges at the
58. Id.
59. Santin & Kaups, supra note 17, at 3.
60. Id.
61. Fibuch & Robertson, supra note 8.
62. See Hein-Muniz v. Aiken Reg’l Med. Ctr., 905 F. Supp. 2d 729 (D.S.C. 2012).
63. Patrick v. Burget, 486 U.S. 94 (1988).
64. Id. at 95–96.
65. Id. at 96.
66. Id.
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138 PACE LAW REVIEW 40.1
city’s only hospital on the ground that his care of patients was
below the hospital’s standards.67
The plaintiff filed a federal lawsuit claiming violations of the
Sherman Act by the defendant’s charges and by their
participating in the peer-review proceeding in order to reduce
competition from the plaintiff rather than to improve patient
care.68 The Supreme Court ruled that the state’s law failed to
shield the defendants from liability for their activities on the
hospital peer-review committee.69 This ruling prompted
Congress to enact the Health Care Quality Improvement Act of
1986.70 The legislature found that the threat of money damages
under Federal law unreasonably dissuaded doctors from serving
on professional peer review committees. Therefore, there is a
national overriding interest to protect physicians who serve in
this capacity.71
This statute offers immunity under Federal and State laws
to those on a peer review body who act in the reasonable belief
that their action was in the furtherance of quality health care,
and they act after a reasonable effort to obtain the facts even
though their actions adversely impact the clinical privileges or
professional society membership of a physician.72 This statute
sets forth the specific requirements and standards for immunity
and applies to disruptive physician cases.73 Only a good faith
review qualifies for immunity, so whether the standards are
followed by the peer review committee is very important to the
final disposition of most disruptive physician cases and is the
subject of much litigation.74
It must be noted, however, that the Act only grants
immunity to “professional review actions.”75 This is defined as
an action or recommendation by the professional review body
which is done during a review activity, that is premised on the
competence or professional actions of a doctor, and which may
67. Id. at 97.
68. Id. at 97–98.
69. Patrick, 486 U.S. at 105.
70. Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 (2019).
71. Id.
72. Id.
73. Erwin, supra note 5, at 281–80.
74. Id. at 280.
75. Gosfield, supra note 52, at *1.
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2019 DISRUPTIVE PHYSICIAN? 139
adversely affect the clinical privileges of the physician.76
VI. Court Action
Being labeled a disruptive physician, especially if sanctions
are imposed, can have serious professional implications
including the loss of one’s hospital privileges. In fact, it can have
career ending repercussions. State and federal agencies can also
discipline a physician who is labeled disruptive if the offending
conduct is determined to influence the quality of patient care or
if it implies moral, ethical, or unprofessional deficiencies.77
Unhappy patients can register a complaint with the health plan
or managed health care firm triggering an investigation that can
cause the loss of a physician’s affiliation with the plan or
hospital. Intimating and unprofessional conduct can also be
reported to the National Practitioner Data Bank, thereby
resulting in other investigations and charges against the
physician who seeks a hospital affiliation or credentialing.78
This data bank79 maintains a listing of actions taken by
authorized organizations regarding health care practitioners,
entities, providers, and suppliers who do not meet professional
standards. These adverse reports are permanently kept unless
modified or removed by the entity that submitted them.80 In
turn, the information can be used in rendering decisions dealing
with licensure, employment, contracting, membership or clinical
privileges, or when conducting investigations. Under the
appropriate circumstances, the information may even be
obtained by plaintiff’s counsel.81 Therefore, it is not surprising
that litigation involving being labeled a disruptive physician is
76. Standards for Professional Review Actions, 42 U.S.C. § 11112(a) (2019).
77. Wᴇɪꜱꜱ, Zᴀʀᴇᴛᴛᴛ, Bʀᴏꜰᴍᴀɴ, Sᴏɴɴɪᴇɴᴋʟᴀʀ, & Lᴇᴠʏ, P.C., How the Title of Disruptive Physician Can Ruin Your Career and How to Avoid It, Firm News & Legal Alerts (Aug. 1, 2010), https://weisszarett.com/lawyer/2010/08/01 /Healthcare-Law/How-the-Title-of-%E2%80%9CDisruptive-Physician %E2%80%9D-Can-Ruin-Your-Career-and-How-to-Avoid-It_bl31980.htm.
78. Id.
79. What You Must Report to the NPDB, Nᴀᴛɪᴏɴᴀʟ Pʀᴀᴄᴛɪᴛɪᴏɴᴇʀ Dᴀᴛᴀ Bᴀꜱᴇ, https://www.npdb.hrsa.gov/hcorg/whatYouMustReportToTheDataBank.jsp (last visited Oct. 8, 2019).
80. Id.
81. Id.
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common.82
A Westlaw search of the phrase “disruptive physician”
references 1,566 federal and state cases.83 Not all of the cases,
however, are relevant. For instances, some deal with whether a
physician’s disruptive conduct constitutes a mental condition,84
or whether a fee shifting provision of a hospital contract is in
violation of public policy. Relevant cases deal with such issues
as the removal of sanctions or the recovery of money for lost
income, restraint of trade, or emotional harm.85 Overall, the
applicable cases involve the failure of the health care provider to
follow process, discrimination claims, retaliation, or intent to
harm cases.86
An analysis shows that the courts do not care about actual
quality issues, and they will usually not question the opinion of
the hospital’s management team or the peer review committee.87
In fact, the courts tend to favor the medical organization88 on the
basis of the granting of immunity under the Health Care Quality
Improvement Act, affording deference when hospitals adhere to
their bylaws or rules, or finding that disruptive behavior by itself
is a proper justification to sanction a physician.89 This bias in
82. Most disruptive physician cases are resolved without court intervention. Rosenstein, supra note 26, at 46.
83. This Westlaw search was conducted on Oct. 9, 2019.
84. See Neravetla v. Dep’t of Health, 394 P.3d 1028 (Wash. Ct. App. 2017).
85. See Sternberg v. Nanticoke Mem’l Hosp., Inc., 62 A.3d 1212 (Del. 2013).
86. Rosenstein, supra note 26, at 49.
87. See Ross Zbar et. al., The Disruptive Physician: Righteous Maverick or Dangerous Pariah?, 124 PLASTIC & RECONSTRUCTIVE SURGERY 409 (2009).
88. Id.
89. Erwin, supra note 5, at 281. See Sosa v. Board of Managers of Val Verde Mem’l Hosp., 437 F.2d 173, 177 (5th Cir. 1971). As noted:
No court should substitute its evaluation of such matters for that of the Hospital Board. It is the Board, not the court, which is charged with the responsibility of providing a competent staff of doctors. The Board has chosen to rely on the advice of its Medical Staff, and the court cannot surrogate for the Staff in executing this responsibility. Human lives are at stake, and the governing board must be given discretion in its selection so that it can have confidence in the competence and moral commitment of its staff. The evaluation of professional proficiency of doctors is best left to the specialized expertise of their peers, subject only to limited judicial surveillance. The court is charged with the narrow
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2019 DISRUPTIVE PHYSICIAN? 141
favor of a hospital is partially based upon the court’s reluctance
to interfere with a hospital’s decision to revoke, suspend,
restrict, or to refuse to renew the clinical privileges of a medical
staff member. Court review is usually limited to making sure
that there is substantial adherence with the facility’s bylaws
concerning such a decision, and to ensuring that the bylaws
provide rudimentary notice, a fair procedure, and an impartial
tribunal.90 This analysis is buttressed by the AMA, which notes
that most lawsuits attacking a peer review proceeding should be
dismissed at the summary motion phase. The litigation should
only proceed when the physician has rebutted the presumption
that the peer review process was reasonable and fair.91
The following is a representation of some of the cases under
various categories.
A. Immunity under the Healthcare Quality Improvement Act
(HCQIA)
Courts started finding health care facilities responsible for
the inappropriate conduct of their medical staff under a
corporate negligence theory for hiring and supervision in the
mid-1960’s. The basis for this liability is that patients depend
upon the hospital to guarantee the quality of care afforded at its
responsibility of assuring that the qualifications imposed by the Board are reasonably related to the operation of the hospital and fairly administered. In short, so long as staff selections are administered with fairness, geared by a rationale compatible with hospital responsibility, and unencumbered with irrelevant considerations, a court should not interfere.
Sosa, 437 F.2d at 177.
90. Mahmoodian v. United Hospital Center, Inc., 404 S.E.2d 750, 755 (W. Va. 1991). See also Shulman v. Wash. Hosp. Ctr., 222 F. Supp. 59, 64 (D.D.C. 1963); Eidelson v. Archer, 645 P.2d 171, 175 (Alaska 1982); Gaenslen v. Bd. of Dir., 232 Cal. Rptr. 239, 241-42 (Cal. Ct. App. 1985); Gianetti v. Norwalk Hosp., 557 A.2d 1249, 1254–56 (Conn. 1989); Adkins v. Sarah Bush Lincoln Health Center, 544 N.E.2d 733, 737–41 (Ill. 1989); Pepple v. Parkview Mem‘l Hosp., Inc., 536 N.E.2d 274, 276 (Ind. 1989); Porter Mem‘l Hosp. v. Malak, 484 N.E.2d 54, 61 (Ind. Ct. App. 1985); State ex rel. Willman v. St. Joseph Hosp., 684 S.W.2d 408, 411–12 (Mo. Ct. App. 1984); Gotsis v. Lorain Cmty. Hosp., 345 N.E.2d 641 (Ohio Ct. App. 1974); Miller v. Indiana Hosp., 419 A.2d 1191, 1193–94, 1196 (Pa. Super. Ct. 1980), appeal denied (Pa. Oct. 1, 1980).
91. Grogan & Knechtges, supra note 4, at *3.
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facility.92 To succeed on such a claim, however, the plaintiff
must prove that the hospital knew or should have known of the
doctor’s negligent conduct.93
This potential liability has motivated a number of state
legislatures to enact peer review laws.94 A peer review is the
way by which healthcare management examines the quality of
medical treatment provided by physicians under their charge.
This undertaking has been approved by different states who
have enacted statutes to protect the privacy of the materials
created during the peer review process.95 Likewise, Congress
appreciated the need for effective peer review, as well as a
procedure to encourage doctors to participate.96 This lead to the
enactment of the Immunity under the Healthcare Quality
Improvement Act of 1986 (IHQIA) in which Congress bestowed
qualified immunity from liability for peer review participation to
doctors and dentists as well as establishing a national
practitioner data bank to keep track of inept, incompetent, or
unprofessional physicians. The legislation also established
procedural rules for due process, privilege restrictions, and
reporting requirements.97
HCQIA has generated much litigation by disgruntled
physicians who wish to sue the peer review committee that
disciplined them as well as the whistleblowers who reported the
disruptive physician. The seminal case is Meyers v.
Columbia/HCA Healthcare Corporation,98 and this opinion is
frequently referenced in many subsequent decisions.99 The facts
reveal that Dr. Meyers filed a lawsuit because he was denied
92. Peters, supra note 30, at 8.
93. Id.
94. Id.
95. David Freedman, The Healthcare Quality Improvement Act of 1986, RELIAS MEDIA (May 1, 1999), https://www.reliasmedia.com/articles/41639-the- health-care-quality-improvement-act-of-1986.
96. Id.
97. Susan L. Horner, The Health Care Quality Improvement Act of 1986: Its History, Provisions, Applications and Implications, AM. J. L. & MED. 453, 455 (1990).
98. Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461 (6th Cir. 2003).
99. Mark W. Leach, Dealing With Disruptive Physicians: The Myers Cases and Their Progeny, 9 AM. HEALTH. L. ASS’N. 1, 1 (Oct. 2010), (http:// www.postschell.com/site/files/medstaffnews_oct10.pdf). According to Westlaw, the Myers decision has been referenced in 419 other decisions.
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2019 DISRUPTIVE PHYSICIAN? 143
reappointment to the hospital’s medical staff over concerns
about his disruptive conduct.100 A hospital committee
determined that the physician displayed repeated temper
tantrums, he refused to limit elective cases to the time period
assigned, he attempted to interfere with the right of an
attending physician to refer a patient to the surgeon of his
choice, he was condescending towards women, he refused to
speak to members of the surgical team during a procedure, and
he demonstrated several instances of throwing a scalpel during
an operation.101 The committee believed that this conduct could
adversely affect the quality of patient care and so informed the
doctor. Dr. Meyers requested a hearing and the board appointed
a peer review committee consisting of a retired appeals judge, an
attorney, a bank president, an industrialist, and dentist even
though the bylaws noted that three people from the medical staff
should be on the committee when “feasible.”102 The committee
met on eleven occasions and voted not to appoint Dr. Meyers to
the staff.
This prompted the physician to file a lawsuit in state court
seeking an injunction forcing the hospital to reappoint him. The
court refused to reinstate his privileges so the doctor filed a
different lawsuit in federal court for violating the federal
antitrust laws and breach of the covenant of good faith.103 In
ruling in favor of the hospital, the court noted that HCQIA was
enacted to allow for effective peer review, motoring of
incompetent physicians, and to offer qualified immunity from
damages for those who participate in peer review duties.104 This
immunity will be granted as long as the review is performed in
the reasonable belief that the action was in furtherance of
quality health care; after a reasonable effort to learn the facts is
undertaken; the physician is given adequate notice and hearing
procedures; and in the reasonable belief that the action was
needed after a reasonable investigation.105 Compliance with
these requirements provides a rebuttable presumption of
immunity, thereby forcing the physician to prove that the
100. Meyers, 341 F.3d at 463.
101. Id. at 464–65.
102. Id. at 465.
103. Id. at 466.
104. Id. at 467.
105. Id.
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hospital did not comply with the standards.106 In this matter,
the court determined that the doctor received adequate notice of
the hearing, and the committee only had to consist of hospital
staff when “feasible.” It was not possible to appoint staff
members to the committee in this case because they were
working too many hours and could not devote the time to a
hearing.107
Isaiah v. WHMS Braddock Hospital Corp. involved a
determination by the hospital to suspend the plaintiff’s hospital
privileges.108 The surgeon was granted conditional privileges
upon his completion of a proctoring program. This remedial
action was recommended in view of several “red flags” that the
Chair of the Department of Surgery saw in the records dealing
with the plaintiff’s length of operations, surgical judgment,
decision making, ability to identify anatomy, and case
selection.109 Following an investigation, the plaintiff’s hospital
privileges were summarily suspended based upon the hospital’s
bylaws that allowed precautionary suspensions when “the
activities or professional conduct of any Medical Staff Appointee
are considered to be a departure from the standard of the
Medical Staff or the Hospital.”110
The Medical Events Subcommittee then convened, met with
the plaintiff, and discussed the precautionary suspension. The
end result was that the Subcommittee reached the conclusion
“that [Dr. Isaiah’s] surgical competence and clinical decision-
making is below the standards of the hospital.”111 The Medical
Executive Committee and Board of Trustees also concluded that
all privileges should be revoked. The surgeon was then afforded
a full hearing at which time the original decision was upheld and
the National Practitioner’s Data Bank was notified of the
action.112
The plaintiff instituted a lawsuit on a number of grounds
including defamation, invasion of privacy, and tortious inference
106. Meyers, 341 F.3d at 467–68.
107. Id. at 470.
108. Isaiah v. WHMS Braddock Hosp. Corp., No. JFM 07-2197, 2008 U.S. Dist. LEXIS 57850 at *1 (D. Md. July 25, 2008).
109. Id.
110. Id. at *8.
111. Id. at *12.
112. Id. at *19.
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2019 DISRUPTIVE PHYSICIAN? 145
with prospective advantage.113 The defense filed a motion for
summary judgment claiming immunity under the Health Care
Quality Improvement Act. The physician countered that the
defendants were not immune because he had offered adequate
evidence for a jury to conclude that the defendants failed to act
appropriately with respect to the prongs of the immunity
analysis.114
In dismissing the claim, the court noted that the immunity
inquiry does not mandate that the court find that the surgeon
actually made a mistake, breached a standard of care, or put a
patient in danger. Rather, all that is mandated is a
determination that the hospital possessed a reasonable
belief that the action taken would advance the objective of
quality health care. Thus, an incorrect but reasonable
determination would still be afforded immunity.115
Sherr v. Healtheast Care System offers another example of
how far the courts will go to protect peer review committees.116
Sherr was a neurosurgeon who had hospital privileges at two
related institutions. He filed a lawsuit against the hospitals
claiming that their in-house neurosurgeons sought his ouster as
a competitor by defaming his medical skills and arranging a
sham peer review process that caused his summary
suspension.117 The facts show that the defendants have a Spine
Council that reviews spinal care matters, and they hold monthly
meetings to talk about problem cases. One of the hospital’s
physicians referred patients to neurosurgeons who were not part
of the in-house team, including the plaintiff. This practice
resulted in the referring physician being berated especially
when he referred matters to the plaintiff who they labeled “a
hack,” “not a good surgeon,” and an “asshole.”118
Contemporaneously, one of the hospital’s operating room
staff, an infection prevention specialist, expressed concern about
the plaintiff’s increased infection rates, blood loss, and redo
procedures. A red flag was also raised by a Spine Quality Report
discussing Dr. Sherr’s increased rate of infection following fusion
113. Id. at *20.
114. Isaiah, 2008 U.S. Dist. LEXIS 57850, at *20–21.
115. Id. at *49–50.
116. Sherr v. Health East Care Sys., 262 F. Supp.3d 869 (D. Minn. 2017).
117. Id. at *1–2.
118. Id. at *8.
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surgery.119 This caused one of the in-house neurosurgeons to
contact the head of surgery about the issue. The plaintiff was
then notified that a peer review would be undertaken at which
time the in-house neurosurgeon provided the committee with a
summary of the data from the Spine Quality Report which
showed that Dr. Sherr’s infection rate was more than double
that of the other surgeons.120 The Committee immediately
issued a summary suspension of Dr. Sherr’s privileges out of
concern for patient safety. The Medical Executive Committee
then meet to discuss the suspension, and Dr. Sherr objected to
the inclusion of the in-house neurosurgeon’s presence on the
Executive Committee based upon her status as a competitor.
After deliberating, the Committee upheld the suspension. A
hearing was subsequently held at the request of the plaintiff
before the Judicial Review Committee and the suspension was
overturned.121 Nevertheless, Dr. Sherr did not seek
reinstatement and moved to Florida where he entered into an
employment agreement with another practice.122
Dr. Sherr filed a lawsuit, and the defendants argued that
their peer review activities were immune under state and
federal law.123 The court noted that immunity applies unless the
peer review process is motivated by malice towards the subject
of the review. Dr. Sherr argued that the peer review process was
started by the in-house neurosurgeon who was a competitor and
had a direct economic stake in the outcome.124 The court
dismissed this argument and stated that both state and federal
peer review statutes “contain no provision barring competitors
from participating in professional review activities.”125 Because
the plaintiff failed to offer evidence from which a reasonable
juror could determine that the peer review process was
motivated by malice, the committee was immune from a
lawsuit.126 Interestingly, the court noted that a reviewer’s
119. Id. at *9.
120. Id. at *9–10.
121. Id. at *20–21.
122. Sherr, 262 F. Supp. 3d at 878.
123. Id. at *23.
124. Id. at *24.
125. Id. at *27–28.
126. Id. at *32.
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subjective bias or bad faith is not relevant.127
The opposite result was reached in Islami v. Covenant
Medical Center, Inc., where the court ruled against a hospital
because it did not believe the defendant was entitled to summary
judgment on the basis of HCQIA immunity.128 The defendant
failed to provide the physician with notice and hearing
procedures as outlined in the bylaws and under the terms of the
statute.129
B. Reliance upon Bylaws and Procedures
The majority of courts hold that medical staff bylaws are
enforceable contracts between the hospital and physician.130
These rules generally explain who can trigger an investigation
or request remedial action. If such an investigation uncovers
a doctor with shortcomings, restrictive measures may be levied
to bring about improvement in the offending conduct, including
the suspension of a physician’s hospital privileges.131
The courts are disposed to rule in favor of hospitals against
lawsuits by disruptive physicians if the peer review committee
adheres to the process set forth in the bylaws or the rules and
127. Id. at *33.
128. Islami v. Covenant Med. Ctr., 822 F. Supp. 1361 (N. D. Iowa 1992).
129. Id. at 1377. In Rosenhek v. Windsor Regional Hospital 2010 ONCA 13 (2007), aff’g O.J. 44856; leave to appeal to the Supreme Court of Canada refused, S.C.C.A. No. 89 (2010), a court in Ontario, Canada awarded an alleged disruptive physician whose hospital privileges had been revoked in bad faith over $3 million. The court found that the hospital had revoked his privileges because the doctor did not “fit in.” Shantona Chaudhury, Disruptive Physician Behavior and Hospital Liability in Tort: Rosenhek v. Windsor Regional Hospital, PAPE CHAUDHURY (March 2011), https://papechaudhury.com/ disruptive-physician-behaviour-and-hospital-liability-in-tort-rosenhek-v- windsor-regional-hospital/.
130. See Lewisburg Community Hosp. v. Alfredson, 805 S.W.2d 756, 759 (Tenn. 1991); Pariser v. Christian Health Care Sys., 816 F.2d 1248, 1251 (8th Cir. 1987); Posner v. Lankenau Hosp., 645 F. Supp. 1102, 1106 (E.D.Pa.1986); Terre Haute Regional Hosp. v. El–Issa, 470 N.E.2d 1371 (Ind. App. 1984); Anne Arundel General Hosp. v. O’Brien, 432 A.2d 483 (1981); St. John’s Hosp. Med. Staff v. St. John Regional Med. Center, N.W.2d 472, 474– 75 (1976); Joseph v. Passaic Hosp. Ass’n, A.2d 18 (1958). For examples of courts who have found that bylaws do not constitute a contract, see Munoz v. Flower Hosp., 507 N.E.2d 360 (1985); Todd v. Physicians & Surgeons Comm. Hosp., S.E.2d 378 (1983); Stein v. Tri–City Hosp. Authority, 384 S.E.2d 430 (1989); see also 41 C.J.S. Hospitals § 16 (1991).
131. See Yedidag v. Roswell Clinic Corp., 346 P.3d 1136 (N.M. 2015).
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148 PACE LAW REVIEW 40.1
procedures.132 In fact, the immunity granted by the Health Care
Quality Improvement Act is not dependent upon strict
compliance with a hospital’s bylaws, although the statute does
include a “safe harbor” provision.133 If the procedure used by a
hospital to handle a dispute varies from the letter of its bylaws,
the facility will still satisfy the immunity requirements if it is
“fair to the physician under the circumstances.”134
Leach v. Jefferson Parish Hospital District No. 2135 involved
a physician who was summarily suspended after continued
disruptive behavior.136 In turn, the plaintiff asked the Medical
Executive Committee to lift his summary suspension. The chief
of staff replied that the bylaws failed to contain a review process
once a suspension had been upheld by the Board of Directors.
Dr. Leach, however, was informed that the hospital had a long-
standing policy that mandated a one-year moratorium before a
physician could reapply for staff membership.137 While the
bylaws did not mandate such a moratorium, the hospital’s
handbook recommended reapplication after a minimum of one
year. This prompted the suspended physician to file the instant
lawsuit claiming that his due process rights were violated.138
The Court determined that the hospital reasonably adhered
to its rules, so the plaintiff’s claim was dismissed. While the
hospital’s bylaws offered no guidance for reapplication after a
summary suspension, the Committee Handbook recommended a
one-year moratorium. It was noted that the hospital has an
obligation to protect patients and to guarantee their competent
treatment.139 Therefore, the measures used by the hospital were
reasonable. As for the argument that the hospital’s rules and
regulations were inadequate to protect the doctor’s
constitutional rights, Dr. Leach’s interest in his medical
privileges were protected because he could have practiced at
another hospital. There was also no evidence that the Executive
132. Erwin, supra note 5.
133. Wieters v. Roper Hosp., Inc., 58 F. App’x 40, 46 (4th Cir. 2003).
134. Id. at 46.
135. Leach v. Jefferson Par. Hosp. Dist. No. 2, 870 F.2d 300 (5th Cir. 1989).
136. Id. at 301.
137. Id. at 302.
138. Id.
139. Id.
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Committee failed to provide him with the necessary safeguards
to protect his interests at the hearing.140 Lastly, the hospital has
an obligation to offer quality medical care to its patients. If a
doctor is disruptive or has personal issues, the heath care facility
has an obligation to step in. The suspension was necessary in
this case, so the procedural safeguards to guarantee that the
plaintiff’s constitutional rights were protected were adequate.141
On the other hand, the need to follow the bylaws is not
always required. In Taylor v. Kennestone Hospital, Inc.,142 an
anesthesiologist was accused of sexually harassing a nurse.
During an investigation, it was learned that the physician
demonstrated harassing conduct toward others, such as
inappropriate gestures and remarks, offensive touching, and
lewd suggestions. Several staff members even said that they
were afraid to work when the doctor was on duty.143 The plaintiff
was confronted with these allegations, and he admitted to a
sexual harassment problem. Faced with possible disciplinary
action, the doctor gave up his staff privileges, and sought
treatment with a psychiatrist.144 The hospital continued its
investigation and uncovered even more instances of
inappropriate conduct. An accommodation was worked out
where the doctor could see patients at the hospital so long as he
adhered to the guidelines created by his psychiatrist. The doctor
was warned, however, that any other inappropriate conduct, or
his failure to adhere with his psychiatrist’s treatment plan,
could result in “suspension, termination or restriction of his
clinical privileges.”145 Subsequently, the physician applied for
reinstatement, but it was determined that he had not complied
with the plan established by the psychiatrist. His application
was denied, and the plaintiff requested a hearing. The hearing
panel recommended that the physician be reappointed to the
medical staff for three months upon proof from the psychiatrist
certifying compliance with the plan.146 The Board of Trustees,
however, rejected this recommendation and denied Taylor’s
140. Id. at 303.
141. Leach, 870 F.2d at 303.
142. Taylor v. Kennestone Hosp., Inc., 596 S.E.2d 179 (Ga. Ct. App. 2004).
143. Id. at 181.
144. Id. at 182.
145. Id.
146. Id.
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application for reappointment.
A lawsuit was filed, and the doctor maintained that he did
not receive proper notice of the various proceedings which
violated the defendant’s bylaws. The Court granted the
defendant’s motion for summary judgment based upon the
immunity provided by HCQIA. It noted that the statute did not
require that hearing procedures satisfy a hospital’s bylaws in
order for immunity to apply. Rather, the statute merely requires
that the procedures of the hearing be adequate and fair under
the circumstances.147
C. Disruptive Conduct as Justification for Suspension
A medical facility has the obligation to make sure that
physicians appointed to its staff satisfy particular requirements
of professional competence and conduct, so long as there is a
sufficient connection between those standards and
the hospital’s duty of offering quality patient care.148 This
standard of care has led a number of courts to determine that
disruptive conduct by itself is proper justification for a health
care facility’s determination to suspend or terminate a
physician’s staff privileges.149 As noted in Mahmoodian v.
United Hospital Center, Inc., disruptive behavior is a legitimate
concern to a hospital in formulating medical staffing decisions.
Nearly all courts examining the problem have, therefore,
concluded that a hospital may adopt and enforce bylaws
providing for the suspension or revocation of clinical privileges
of the offending doctor, solely when such conduct may have an
adverse impact upon the patient’s quality of care.150 This
determination will be based upon an objective test which focuses
on the totality of the circumstances,151 but the test does not
mandate that the peer review decision be correct or that the
determination actually improves the quality of care.152
147. Id. at 185.
148. Mahmoodian v. United Hosp. Center, Inc., 404 S.E.2d 750, 759 (W. Va. 1991).
149. Erwin, supra note 5, at 277–78.
150. Mahmoodian, 404 S.E. 2d at 760.
151. Imperial v. Suburban Hosp. Ass’n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994).
152. Id.
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The caveat that the imposition of sanctions must relate to
the patient’s quality of care is important to keep in mind. This
is demonstrated by Clark v. Columbia/HCA Information
Services where the court refused to grant immunity to a hospital
who had revoked the privileges of a psychiatrist because their
determination was not in furtherance of quality health care.153
Clark, a child psychiatrist, enjoyed hospital privileges at West
Will Hospital. This facility alleged that the plaintiff was
engaging in “activities or professional conduct which are
disruptive to Hospital operations” so they conducted a peer
review.154 The board determined that Clark had engaged in
disruptive conduct that harmed the quality of health care so he
was suspended. The plaintiff instituted a lawsuit against the
hospital claiming that the hospital “conspired to commit illegal
conduct, divert patients away from him, and improperly
terminated his staff privilege.”155 He also asserted that his
privileges were ended because he reported violations of medical
standards, an action that is protected as a matter of public
policy.156
The Court allowed the lawsuit to proceed because the
plaintiff had shown by a preponderance of the evidence that the
revocation of his hospital privileges was not premised upon a
reasonable belief that it was in furtherance of quality health
care. The Court determined that his suspension related
exclusively to the plaintiff’s reports and letters to outside doctors
and regulatory agencies, complaining about the care and
procedures the defendant used in its child psychiatric practice,
the scheduling of doctors, and in-patient insurance policies.157
The doctor’s actions constituted protected whistleblowing
conduct which cannot be reasonably classified as limiting
incompetent actions or protecting patients.158
Another challenge facing the alleged disruptive physician
who fights disciplinary action is the awarding of attorney’s fees
to the hospital; Sternberg v. Naticoke Memorial Hospital, Inc.
153. Clark v. Columbia/HCA Info. Servs. Inc., 25 P.3d 215 (Nev. 2001).
154. Id. at 218.
155. Id. at 219.
156. Id. at 220–21.
157. Id. at 222–23.
158. Id. at 223.
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provides an example.159 The plaintiff sued the hospital due to
the precautionary suspension of his clinical privileges. The facts
demonstrated that the physician was critical of the hospital’s
practices and was often vocal about quality of care issues. The
way that he articulated his opinions and dealing with the staff,
however, was disruptive and put patients at risk.160 The
plaintiff did not succeed on his challenge to overturn the
suspension and he was presented with a $412,928 bill for legal
services incurred by the hospital in defense of the lawsuit. The
hospital’s bylaws provided that if “an individual institutes legal
action and does not prevail, he or she will reimburse the Hospital
and any member of the Medical Staff named in the action for all
costs incurred in defending such legal action, including
reasonable attorney’s fees.”161 Sternberg asserted that the
legislature found that an award of attorney’s fees should be
restricted in HCQIA immunity cases to those that are frivolous,
unreasonable, without foundation, or instituted in bad faith.162
The court disagreed and found that the counsel fee provision
contained in the bylaws applied and was not against public
policy.163
VII. Conclusion
A disruptive physician can cause havoc in the work place
and compromise patient safety. While the issue was once swept
under the rug, this is no longer the case. Troublesome conduct
is now an area of primary concern among health care providers,
and it is often discussed in the hospital’s bylaws or rules and
regulations. Offending physicians can face prompt suspension
or revocation of their hospital privileges, a decision that has
lasting implications.
State and federal legislatures have recognized the need to
protect peer review committees so they have been granted
qualified immunity for their actions. In turn, court review of
physician discipline is very limited and the judiciary tends to
favor the medical organization as long as the basic tenants of
159. Sternberg v. Naticoke Mem’l Hosp., Inc., 62 A.3d. 1212 (Del. 2013).
160. Id.
161. Id. at 1216.
162. Id.
163. Id. at 1221.
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due process have been followed.
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