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Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Legal Case Review: The Disruptive Physician

Cristina Palacio, Esq.

“The disruptive practitioner is by definition 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 ….” So stated Dr. Fishter, a staff psychiatrist at Lewistown Hospital in Mifflin County Pennsylvania, during a trial regarding a 28 day suspension imposed by Lewiston on Dr. Alan Gordon for verbally abusing a nurse. As it turned out, it was quite a good description of Dr. Gordon, for whom the suspension was only the beginning of a multi-year effort to encourage him to modify his behavior. The litigation between Dr. Gordon and Lewistown Hospital began in 1993 and concluded in 2006, involved both state and federal courts and generated five published court opinions. The series of cases strongly supports the principal that a medical staff has the responsibility of addressing disruptive physician behavior as part of its duty to promote quality patient care; and action taken in that regard is appropriate professional review action that is subject to the protection of the Health Care Quality Improvement Act (42 U.S.C. §11101 et. seq.). Case Summary: The (first) precipitating event occurred on July 14, 1992, when Dr. Gordon, an ophthalmologist, told an ED nurse (by his own admission) that she “should get off her ass and that she was a wrench in the works, she was obstructing patient care.” (The nurse alleged that Gordon used more profane language, but Gordon’s version of the event was accepted by the court.) Dr. Gordon had been on the medical staff of Lewiston since 1980, and there was no question regarding his competency. Prior to this incident, however, Gordon had already been reviewed by the Credentials Committee for his behavior in a series of incidents involving verbal attacks on fellow physicians and nurses, resulting in a written warning that any additional episode would result in a recommendation to the Board that he be suspended. After investigating the July 14th incident, the Credentials Committee recommended a 28 day suspension (long enough to make its point, but short enough to avoid a report to the National Practitioner Data Bank). Following a hearing and an appeal, both of which he lost, the suspension was implemented in September 1993, and Gordon sued the hospital in state court based on various claims, including violation of his constitutional due process rights, breach of contract, defamation and tortuous interference with business relations. The trial court held against Gordon on all counts, granting summary judgment to the hospital. Gordon appealed and, of particular significance for the purposes of this review, he argued (amongst other things) that the hospital was not entitled to the immunity protection of the HCQIA (Gordon v Lewiston, 714 A.2d 539 Pa. Commw. Ct. 1998) In rejecting Gordon’s argument, the court quoted Dr. Fishter’s testimony that “[a]though Dr. Gordon himself [had not] ever demonstrated anything but competency as a practitioner in his specialty, there is [repetitive evidence of] supporting staff being intimidated, being distracted, fearful, which, if your supporting staff is not able to attend clearly only to the business at hand, namely, the management of the patient … [places] patient care at risk.” (Id. at 544) The court also quoted Hugh Greeley, chairman of the hospital/medical staff consulting firm The Greeley Company, who testified as an expert for Lewistown that where “a physician’s behavior is disruptive to the activities of the hospital, affects the quality of services provided and/or creates a condition in which employees must act in an environment of fear and trepidation, a hospital is required to take action.” Consistent with those two opinions, the court found that “because disruptive behavior by a physician at work relates to his or her professional conduct, we reject any notion that the Board did not take its professional review action in the reasonable belief that it was furthering quality health care merely because Dr. Gordon’s suspension was not based on incompetence.” (Id. at 545) Thus, after also finding that the hearing and appeals process offered to Gordon was consistent with HCQIA requirements, the court found that Lewistown’s suspension of Gordon’s privileges was subject to the immunity protections of HCQIA. (While the courts in this case continually refer to the ‘hospital’s action’ it is important to remember that in these matters, the Board acts pursuant to recommendations from the Medical Staff, not pursuant to hospital administrative proposals.) In 1994, while the state lawsuit was still pending, Lewistown began to receive complaints from patients and their families, claiming that they had received harassing, inappropriate and intimidating phone calls from Dr. Gordon regarding his perception of the inferior competency of their ophthalmologist, Dr. Nancollas – the only other ophthalmologist on Lewistown’s medical staff. Gordon went as far as calling a former patient on the night before her scheduled surgery with Nancollas to complain to her about her decision to use his competitor. After contacting another former patient to inquire about her status, he called her a liar when she explained why she had switched to Nancollas. After receiving about 4 such complaints, Gordon received a letter from the hospital stating that if any more were received, the matter would be referred to the medical staff for investigation. Thereafter, additional complaints were received by hospital administration. Furthermore, during the same time period Gordon had another incident with a nurse. When a day stay surgery nurse would not permit a patient to proceed to the OR after Gordon thrice refused a request to document an H&P, Gordon stated loudly in front of several patients that the nurse “didn’t give a damn about the patients” and screamed at the nursing staff “you are all assholes.” In late 1995, after an investigation of these complaints and the nursing incident, the Credentials Committee recommended a 45 day suspension this time around. Gordon appealed the suspension recommendation to an independent arbitrator. While his appeal was pending, Lewiston administration received several additional complaints from patients, physicians and nurses regarding Gordon’s conduct, leading to a summary suspension, which he also appealed to the arbitrator. The arbitrator supported both the summary suspension, and the 45 day suspension. Meanwhile, in the midst of the suspension appeals process, Gordon submitted his reappointment application. The Credentials Committee, in a final effort to effect an improvement in Gordon’s professional conduct, reappointed him after his written assurance that he would strictly adhere to specific behavioral standards outlined by the Committee. These standards included (1) directions that any complaints or concerns he had about other practitioners or nursing be addressed in writing to appropriate designated administrative or medical staff leadership and (2) a prohibition against attempting to communicate with patients of any other physician for the purposes of commenting on that physician’s competency. Within 7 months of his reappointment, Gordon violated both of these conditions within the same month by (1) composing a letter critiquing his competitor’s surgical methods, including the choice of procedure and anesthesia, the duration of his procedures, and the length of his incisions and distributing the letter to more than 30 people, well beyond the persons designated in the reappointment conditions and (2) by calling a patient of Nancollas the night before her cataract surgery and making disparaging remarks about him. Shortly thereafter, the Credentials Committee recommended termination of Gordon’s membership and privileges. After (again) losing a hearing and an appeal, Gordon’s privileges were terminated. (It should also be noted that while Gordon inappropriately distributed his complaint, an investigation was conducted on Nancollas, with a finding that his practice met the standard of care.) Gordon again sued Lewiston, this time in federal court based on antitrust claims (rather than due process and defamation as he had done in state court a few years before), arguing that the two conditions placed on his reappointment were unreasonable restraints on trade. He was unsuccessful in both the trial court (Gordon v Lewistown, 272 F. Supp. 2d 393 (M.D. Pa. 2003); Gordon v. Lewistow, 2001 U.S. Dist. LEXIS 25644 (M.D. Pa. May 21, 2001)) and the appellate court (Gordon v. Lewistown, 423 F.3d 184 (3d Cir. Pa. 2005). Analysis: Both the trial and appellate court provided detailed analyses of each of the antitrust claims raised by Gordon. Gordon claimed that the hospital’s actions against his privileges illegally affected competition in physician services for various ophthalmology surgery services. Several of his claims required proof of concerted activity or a conspiracy between the hospital and Gordon’s competitors, for which the courts found no proof. Additionally, except for the emergency eye surgery market, the courts found that the hospital did not have the requisite market share to support an antitrust action. In the emergency eye surgery market, despite finding a controlling market share, the court found it was not the hospital’s actions that had a negative impact on the market (leaving only 1 physician to provide all emergency care), but that it was Gordon’s own conduct that resulted in the reduction of competition. Consequently, both the trial court and the appellate court ruled against Gordon on all his antitrust claims. Furthermore, in upholding the hospital’s termination of Gordon’s privileges, the federal appellate court, similar to the state court in the 1993 action, found that the hospital’s action against the physician for his unprofessional conduct was a ‘professional review action’ protected by HCQIA. HCQIA defines a ‘professional review action’ as an action affecting the clinical privileges of a physician “which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients).” (42 U.S.C. § 11151(9)) Finding that the “record contained a plethora of evidence that Gordon’s conduct in violating the [reappointment conditions] could affect adversely the health or welfare of patients,” the court held that HCQIA “affords protection to actions taken against physician conduct that either impacts or potentially impacts patient ‘’welfare’ adversely, meaning patient ‘well-being in any respect….” (Gordon, 423 F.3d at 203) The Florida federal court of appeals has taken a similar position in Bryan v James E. Holmes Regional Center, 33 F.3d 1318 (11th Cir 1994). While not quite as litigious as Gordon (there are not as many opinions generated by Dr. Bryan’s actions), Dr. Bryan, known as an excellent general and vascular surgeon, was certainly as contentious, threatening, unreachable, and insulting as Dr. Gordon. The court describes Bryan as “a volcanic tempered perfectionist, a difficult man with whom to work, and a person who regularly viewed it as his obligation to criticize staff members at Holmes for perceived incompetence or inefficiency. Hospital employees, however, often viewed Bryan’s ‘constructive criticism’ as verbal–or even physical- abuse.” (Id. at 1324) Between 1976, when he joined the Holmes Regional medical staff and November 1990 when his privileges were terminated for his disruptive behavior, Bryan was the subject of more than 50 written incident reports based on his unprofessional conduct toward hospital staff and physicians alike. In one incident, Bryan told two anesthesiologists who caused a 3 minute delay in surgery when they took time to reexamine the patient record prior to beginning anesthesia administration that he “didn’t give a damn about incompetent people’s excuses.” The anesthesiologists alleged that this was followed by a tirade of insults in front of the still-conscious patient. In another incident, allegedly as a prank to teach the nurse “responsibility,” Bryan falsely told her that one of her patients had just hanged himself in his room. Like Gordon, Bryan did not deny descriptions of his behavior. Like Lewistown, the Holmes medical staff tried gradual increases in disciplinary responses, beginning with informal discussions and warnings, moving to formal investigations, short suspension, and eventual termination, due to continued incidents of disruptive behavior. And like the federal appellate court in Pennsylvania, the federal appellate court in Florida found that the hospital’s termination of Bryan’s privileges were, consistent with the requirements of HCQIA, taken in a reasonable belief that such was necessary for the furtherance of quality patient care. Risk Reduction Strategies: The two physicians discussed in the above cases clearly exhibited extreme disruptive and unprofessional behavior. Unfortunately, the medical staff’s reluctance to address the issues early on no doubt contributed to the repetitiveness and escalating nature of the behavior. In recent years, it has become increasing recognized that even moderately disruptive behavior can have a significant negative impact on the delivery of quality patient care. Consequently, Medical Staffs have become less tolerant of repetitive incidents, and increasingly willing to address disruptive behavior early on. Medical staff consultants, such as The Greeley Company and the Horty Springer law firm provide regular seminars on how to address disruptive physician issues. Strategies are usually aimed at assisting the involved physician to improve his or her conduct so that s/he can become a collaborative member of the health care team. But ultimately, non-improvement can, as these cases indicate, result in lost privileges. To avoid such an adverse action, physicians who recognize that they have behavioral issues would be well-advised to pro-actively seek the confidential assistance of the Medical Staff leadership in identifying areas that need improvement, and resources for attaining such improvement. The Shands HealthCare Medical Staff policies on appointments have specific provisions to assist physicians in such matters. In the event that self-awareness is not forthcoming, a physician who is brought to the attention of the Medical Staff leadership and who is then subject to preliminary disciplinary action, still has an opportunity to obtain guidance for improvement. It is important to remember that the courts clearly recognize a Medical Staff’s responsibility to promote appropriate functioning of the hospital by regulating inappropriate behavior that impacts, or could impact, efficient, effective patient care delivery.