JCAHO requires “Zero Tolerance” for Disruptive Doctors and Administrators*

January 2009Newsletters Staying Well within the Law

Threatening, intimidating and otherwise disruptive behavior in hospitals endangers patient safety, according to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). And it doesn’t matter if the tantrum-thrower is a physician or an administrator.

A new JCAHO leadership standard effective January 1, 2009, requires hospitals and other accredited organizations to adopt and implement a code of conduct that defines and manages disruptive or inappropriate behavior by physicians and administrators. Leadership Standard LD.03.01.01 was announced in Sentinel Event Alert 40 issued on July 9, 2008, entitled “Behaviors That Undermine A Culture of Safety.”

Targeted behavior patterns include overt actions, such as verbal outbursts and physical threats, as well as passive activities, such as refusing to perform assigned tasks or 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.

Disruptive physician behavior has been the subject of medical staff investigations and sanctions for decades, and has resulted in considerable litigation over the years. The Physicians Health Programs of the Pennsylvania Medical Society, which was established to address substance abuse, also evaluates physicians with behavior issues. In a departure from the historical focus on “hothead” doctors, JCAHO noted:

While most formal research centers on intimidating and disruptive behaviors among physicians and nurses, there is evidence that these behaviors occur among other health care professionals, such as pharmacists, therapists, and support staff, as well as among administrators.

Factors contributing to disruptive behavior include increased productivity demands, cost containment requirements, embedded hierarchies, and fear of or stress from litigation, as well the high-stakes health care workplace environment, fatigue, increasing workloads and personality traits, such as self-centeredness, immaturity or defensiveness. Of particular concern is the widely-reported perception of a double standard that allows high-volume physicians (and powerful administrators) more leeway to engage in egregious conduct. Such perceived favoritism also may result in allegations of inappropriate inducements to profitable physicians and harsher treatment of their less-profitable colleagues.

Going easy on a profitable physician is a tempting trap for hospitals. Failure to adequately monitor a high-volume practitioner who allegedly performed medically unnecessary procedures was the basis for a criminal prosecution that resulted in a three-year prison term and seven-figure fine in the United Memorial Hospital case in Greenville, Michigan involving the self-styled “Sam Walton of Pain Management” Dr. Jeffrey Askanazi. Although it was his quality, not his behavior, which caught the Justice Department’s attention, there was clear evidence that the administration was willing to overlook problems with its most profitable physician, and that evidence contributed to the prosecution’s victory.

The new JCAHO standards require each accredited organization to adopt a code of conduct that defines acceptable and disruptive and inappropriate behaviors, and requires its leaders to create and implement a process for managing disruptive and inappropriate behaviors. Further, the Sentinel Event Alert recommends that health care organizations take 11 specific steps, including the following:

  1. Educate all team members – both physicians and non-physician staff – on appropriate professional behavior defined by the organization’s code of conduct.
  2. Hold all team members accountable for modeling desirable behaviors, and enforce the code consistently and equitably among all staff.
  3. Develop and implement policies and procedures/processes appropriate for the organization that address:
    • “Zero tolerance” for intimidating and/or disruptive behaviors, especially the most egregious instances of disruptive behavior, such as assault and other criminal acts. Incorporate the zero tolerance policy into medical staff bylaws and employment agreements as well as administrative policies.
    • Medical staff policies regarding intimidating and/or disruptive behaviors of physicians within a health care organization should be complementary and supportive of the policies that are present in the organization for non-physician staff.
    • Reducing fear of intimidation or retribution and protecting those who report or cooperate in the investigation of intimidating, disruptive and other unprofessional behavior.
    • Responding to patients and/or their families who are involved in or witness intimidating and/or disruptive behaviors.
    • How and when to begin disciplinary actions (such as suspension, termination, loss of clinical privileges, reports to professional licensure bodies).
  4. Develop an inter-professional organizational process for addressing intimidating and disruptive behaviors.
  5. Provide training and coaching for all leaders and managers in relationship-building and collaborative practice.
  6. Develop and implement a system for assessing staff perceptions of the seriousness and extent of instances of unprofessional behaviors and the risk of harm to patients.
  7. Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior.
  8. Support surveillance with tiered, non-confrontational interventional strategies. These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety.
  9. Conduct all interventions within the context of an organizational commitment to the health and well-being of all staff, with adequate resources to support individuals whose behavior is caused or influenced by physical or mental health pathologies.
  10. Encourage inter-professional dialogues across a variety of forums as a proactive way of addressing ongoing conflicts, overcoming them, and moving forward through improved collaboration and communication.
  11. Document all attempts to address intimidating and disruptive behaviors.

These recommendations recognize the inherent subjectivity of behavior problems and, by utilizing a measured, respectful approach, establish some limited “due process” to protect the wrongly-accused as well as the accuser. Many physicians accused of disruptive behavior suspect ulterior motives or double standards, and following these recommendations would help make the process more fair and transparent.

The Joint Commission notes that hostile and dysfunctional environments are readily recognized by patients and their families, and that failure to address and manage behavior problems exposes facilities to litigation from both patients and employees. Now that the new standards are in effect, plaintiffs’ malpractice attorneys can be expected to use them to their advantage when there is evidence of tolerance of abusive, hostile or unprofessional conduct by physicians or non-physicians. Both sides now have a strong incentive to police their own colleagues and clean up their act.

*This article will appear in Hospital News of Pennsylvania.