Presented by: Dana E. Stutzman, Esq. | James B. Hogan, Esq.

Hall, Render, Killian, Heath & Lyman, P.C. One American Square, Suite 2000

Indianapolis, IN 46282

Indiana Hospital Association October 30, 2014

Employed Physicians: When Medical Staff and Human

Resources Collide

Intro comment—Members of Today’s Workforce

EMPLOYER EMPLOYEE INDEPENDENT CONTRACTOR

TODAY’S WORKFORCE

This slide is an excerpt from 2013 Legal Forum presentation re:

Worker Classification. See handout for application to

Hospitals.

Employed Physicians What we will discuss:

– Options for addressing physician “quality concerns” • Involving professional conduct (disruptive behavior) and competency

(clinical skill) • Handle through Employment, Medical Staff, or Both?

– Advantages/disadvantages of handling through Employment – Advantages/disadvantages of handling through Medical Staff

• Implications for Peer Review Immunity • Implications for Reporting

– Considerations and Takeaways

Employed Physicians Quick refresh on employment law:

– Employment at will means you can fire for… • Good reason • Bad reason • No reason at all…

– SO LONG AS… • No contract, statute or public policy that dictates otherwise

– Main point: employed physicians typically have employment contracts, so you are outside of employment-at-will

Employed Physicians Options for Addressing Physician Quality Concerns:

– Employment - Human Resources Department/Administration • Employment Contract • Employee Handbook • Codes of Conduct • HR Policies

– Medical Staff “Peer Review” and Corrective Action Processes • Medical Staff Bylaws • Peer Review Policies • FPPE and OPPE • Professional/Disruptive Conduct Policy • Impaired Physician Policy/Committee • Physician Code of Conduct

– TAKEAWAY #1: Your governing documents and policies should not, but often will, conflict.

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– Employment Contract: addresses foreseeable aspects of relationship • Effective date and Termination Provisions (with/without cause) • Physician and Hospital’s respective obligations and expectations • “Cure” provisions • “Non-compete” provisions • “Clean Sweep” provisions

– Employee Code of Conduct: • Define Inappropriate Conduct • Progressive Intervention • Documentation requirements

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– Key Contract Provision…use this (emphasis is mine): Hospital may terminate this Agreement immediately upon providing Physician written notice in the event that Hospital determines, in its sole discretion, that any of the following has occurred. . . . [Insert laundry list of unacceptable conduct related to licensure, “bedside manner,” professionalism, etc. Include “Physician commits professional misconduct or acts in a manner which threatens to injure Hospital’s general reputation.”]

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– Key Contract Provision…avoid using this if possible: Hospital may terminate this Agreement immediately upon providing Physician written notice in the event that any of the following has occurred. . . .

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– Another Key Contract Provision…use this (emphasis mine): Effect of Termination. Upon termination of this Agreement…Physician agrees that at the Hospital's option, Physician's membership on the Medical Staff and all privileges to provide Services at the Hospital shall terminate concurrently. Any such termination shall not give rise to any hearing or appeal rights under the Medical Staff Bylaws and Physician hereby voluntarily waives such rights. The Hospital agrees that termination of Physician's membership and privileges as aforesaid shall not result in any report to the Indiana Medical Licensing Board or to the National Practitioner Data Bank. This provision shall survive the termination of this Agreement.

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– Medical Staff Bylaws: address foreseeable aspects of relationship to medical staff/hospital

• Criteria to obtain/maintain Medical Staff Membership and Privileges • Medical Staff Organization (Committees/Authority to Review) • Medical Staff Processes for Credentialing • Medical Staff Processes for Corrective Action (including provisions for

summary suspension or restriction) • “Fair” Hearing and Appeal Procedures • Other Requirements/Processes

– Professional Conduct – Impairment

– TAKEAWAY #2: Understand that your Medical Staff Bylaws may be construed as a an enforceable contract.

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– Additional “Peer Review” Policies Policies: • Focused Professional Practice Evaluation (“FPPE”) • Ongoing Professional Practice Evaluation (“OPPE”)

– Professional Conduct/Disruptive Behavior Policies: • Typically define Unprofessional and Disruptive Conduct • Often address “Hostile Work Environment” • Provide for “collegial” and “progressive” intervention • Documentation Requirements • Communication Requirements

Employed Physicians Options for Addressing Physician Quality Concerns (continued):

– TAKEAWAY #3: Before considering the “best” option for addressing quality concerns, consider the degree to which you have a choice.

– Considerations: • Human Resources and the Medical Staff – “separation of power” • Can the Medical Staff and Human Resources share information? • Both ways? Be careful! • What is the long-term plan (if there is one)? • Is one better situated than the other?

– Complicated clinical matter? – Conduct concern?

– (As noted below, it may be advantageous to pursue both tracks) – TAKEAWAY #4: When communicating and recording information, know

“what hat you are wearing” at all times.

Employed Physicians Advantages of addressing quality concerns through

employment: – Can typically be more nimble

• Less “bureaucratic” • No “Fair Hearing” or Appeals Process • Don’t have to be right, just need to avoid illegal intent/action

– Less formal process – More direct control over matter/process

• Particularly helpful in “summary action”/emergent situations – More control over reporting obligations

• “Professional Review Bodies” – Can often factor in long-term goals for the relationship – Economics: what’s your EPLI deductible?

Employed Physicians Disadvantages of addressing quality concerns through

employment: – No (state or federal) peer review “immunity”

• What is likelihood of litigation? • What are extent of alleged damages?

– No (state or federal) peer review “confidentiality” • How sensitive is the subject matter? • Is there a concern regarding third-party litigation? • Is there a marketing concern?

– Undermine confidence of Medical Staff • Is this a politically sensitive area? • Are there implications for other members of the staff?

– Employment contract provisions may hinder (e.g., “cure” provisions) – Less leverage, especially if no “clean sweep” in place

Employed Physicians Advantages of addressing quality concerns through medical

staff process: – Peer Review immunity

• As determined by state and federal law • If you have engaged in legitimate “peer review” activity • If done appropriately and pursuant to Medical Staff Bylaws/Process

– State and federal Peer Review confidentiality • As determined by state and federal law • Understand the nature and obligations associated with this “privilege” • In some jurisdictions it is a crime to violate peer review confidentiality • Negligent Credentialing

– Longer to get to Court, but once there, there is more limited “judicial review” – Solidarity with medical staff/more confidence in final action – Often better situated to handle complex clinical concerns – Often better situated to address system-wide improvement – More leverage…essentially the Physician’s license is at stake

Employed Physicians

Disadvantages of addressing quality concerns through medical staff process: – Often a slower and more expensive process

• on the front end – Often a contentious process

• more players – Summary Restriction/Suspension requires prompt due process/hearing – Have to be right – Result may conflict with long-term employment concerns/decisions – Data Bank report may be triggered where summary restriction/peer

review investigation/resignation of privileges

Employed Physicians

Considerations and General Takeaways: – Know what documents are “in play” and make sure they are consistent

and work well together – Consider Medical Staff processes, if possible, when negotiating

employment contracts – Are clinical privileges tied to employment? Do you want them to be? – When approaching a matter, consider:

• Long-term goals/objectives • Subject matter (clinical, conduct, degree of complexity) • Implications for system-wide improvement • Concerns regarding immunity • Concerns regarding confidentiality

Employed Physicians Considerations and General Takeaways (continued):

– Consider the extent to which you have an option of one track v. the other • Is Disability/ADA implicated

– Consider whether you can/should “dual track” the investigation? • This is often the best approach • Be vigilant regarding reporting obligations • What is and what is not an “investigation”

– Consider how and what information can be shared • Can HR share information with the Medical Staff? • Can the Medical Staff share information with HR? • Know the answer before you share the information.

– Consider how you are recording and storing data/information.

Dana E. Stutzman, Esq. (317) 977-1425 dstutzma@hallrender.com Hall, Render, Killian, Heath & Lyman, P.C. One American Square, Suite 2000 Indianapolis, IN 46282

James B. Hogan, Esq. (317) 977-1439

jhogan@hallrender.com Hall, Render, Killian, Heath & Lyman, P.C.

One American Square, Suite 2000 Indianapolis, IN 46282

For additional information about Hall Render and to view our educational articles on a variety of health law topics, please visit our website at www.hallrender.com/resources.