How to prevent and address harassment complaints: Balancing physician rights and hospital actions

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One of the most vexing tasks for physicians, hospital administrators and legal counsel is navigating the competing interests of physicians’ due process rights and hospitals’ legal obligations to prevent, investigate and remedy workplace harassment. The legal ramifications of employment contracts, hospital bylaws and the complicated web of adverse action reporting mechanisms are difficult to traverse for anyone but the most experienced health care attorney. As with all risk management, prevention is key, and there is much that both physicians and medical staff leadership can do to prevent minor civility and communication issues from developing into legal issues and lawsuits.

A duty of professionalism

Todd Brower, Esq.
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Alex Keosky, Esq.
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Christopher Mayer, Esq.
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While physicians have an ethical obligation of clinical support and continuity of care in accordance with applicable laws, regulations and their own professional codes of conduct, such providers also have an obligation, under hospital bylaws, to act in good faith in their working relationships with other physicians and staff in hospital settings. In that sense, there are rules of engagement that apply to all health care professionals when communicating with colleagues and subordinates, including but not limited to the following:

1. Listen attentively before speaking.

2. Do not raise your voice when communicating in nonemergency situations.

3. Seek to resolve all arguments, disagreements and conflicts before they escalate.

4. Be clear and honest in your communication, but also tactful and respectful.

5. Demonstrate empathy and understanding with all coworkers, always.

6. Remember that teamwork, collaboration and open communication are key.

7. Avoid grudges, gossip and turf wars, which create a poisonous work atmosphere.

Following these basic principles of workplace conduct and communication will not only smooth the discourse among members of the medical staff but help prevent mistrust, miscommunication or misunderstanding that can fester and lead to greater anger and resentment.

Training and education

The hospital work environment has slowly evolved from an “old boys’ club” often characterized by inappropriate behavior to a more modern and inclusive workplace. Conduct that should not have been condoned in years past is no longer overlooked or tolerated. While physicians must have excellent communication skills, it is also important for them to understand what types of behavior are no longer tolerated in the contemporary health care space.

Although there are many professional remedial programs that teach workplace skills, a bit of self-reflection is still helpful. Physicians must always have self-awareness with regard to how their words and actions are perceived by others around them. An angry disposition, harsh words and shouting in the clinical setting are detrimental to patient safety and to the delivery of quality patient care. Hospital bylaws typically prohibit conduct that is harassing or intimidating to staff, colleagues, patients or their families and subject the offender to discipline.

In addition, hospitals should and in some cases are required by state laws to provide yearly or biannual training programs that address professional boundaries and the laws and regulations that govern workplace behavior. All physicians should have at least a general idea of what type of behavior is no longer acceptable and check themselves to determine whether they are at risk of disciplinary action for their lack of communication, civility or cooperation.

Illegal workplace harassment briefly explained

A common misconception is that the concept of boundaries and what actually constitutes illegal harassment in the workplace are clearly defined. Unfortunately, harassment is often subjective and based on what a reasonable employee feels or perceives to be unwelcome conduct by a coworker. “Hostile work environment” harassment is generally behavior by any person that makes the worker to whom it is directed feel intimidated, uncomfortable or abused based on a protected characteristic, such as sex or race. Under New Jersey law, for example, workplace harassment is legally actionable if it is so “severe and pervasive” that the conditions of employment are altered or that the employee’s working conditions are hostile. Boundaries define the limits of what is acceptable with regard to respectful and safe interactions with coworkers.

Bylaws versus employment contracts

When physicians’ contracts have termination clauses that automatically end their medical staff privileges, they may still have some due process rights under the medical staff bylaws. The extent of those rights could be significantly limited, however, depending on the specific language of the contract. Engaging legal counsel to fully understand these issues and advise accordingly is essential as in some cases such a clause could effectively waive the physician’s right to a full due process hearing under the bylaws. Here are key points to consider:

• Clean sweep clauses: Many physician contracts include “clean sweep” clauses that terminate medical staff membership and privileges automatically upon termination of physician employment, negating the customary due process procedures outlined in the medical staff bylaws.
• Bylaws and due process rights: Even with an automatic termination clause, the medical staff bylaws may still provide some due process rights, such as the right to review the reasons for termination and potentially allow for medical staff privileges outside of the contract terms. But this is never guaranteed.

Physicians who are both members of the hospital medical staff and employees of the hospital may have due process rights separate from the terms of the hospital bylaws and the provisions within their employment contracts. Thus, a physician facing a hospital adverse action should consult a health care attorney experienced in medical staff matters and employment law.

For these reasons, it is also imperative that legal counsel is engaged to guide the hospital when complaints of harassment are made against physicians.

The National Practitioner Data Bank

A reporting clearinghouse known as the National Practitioner Data Bank (NPDB) is another critical consideration for physicians when faced with potentially adverse actions. A report to the NPDB is permanent, and the NPDB can be accessed by entities that handle physician privileges, employment or professional review. Among the entities permitted to access NPDB reports are state licensing authorities, hospital or health care entity credentialing staff, state and federal law enforcement authorities, professional societies, specialty boards and all third-party payers who contract with providers. Hospitals will file reports to the NPDB when required pursuant to the applicable NPDB regulations. For example, when physicians are the subject of formal peer review processes at the hospital that result in discipline or sanctions that last more than 30 days, NPDB reports will be generated. If the discipline is in the form of suspension, revocation, or a limitation on any of the physician’s scope of clinical privileges imposed by an entity allowing for a peer review process, and extends more than 30 days, it will be reported to the NPDB.

Conclusion

Avoidance and prevention of employee harassment starts with good management and leadership. Civility and communication skills must be taught from the top down through training and leadership by example. Disruptive and poorly behaved physicians must be managed and disciplined, or harassment complaints and lawsuits are sure to follow.

Todd Brower, Esq., is a partner in Frier Levitt’s Healthcare group, representing hospitals, physicians, physician groups, home health providers and other health care organizations. Previously, he served as senior vice president and general counsel at Saint Joseph Health System for 7 1/2 years. Before that, he spent more than 31 years as a health care attorney in private practice representing hospitals, physicians and medical staffs.

Alex Keoskey, Esq., is a partner in Frier Levitt’s Life Sciences group and a former deputy attorney general for New Jersey. He represents physicians and other medical staff members at hospital peer review and committee hearings on issues such as wrongful termination, compensation, privileges, credentialing, summary suspensions, patient rights, impairment, misconduct and quality of care.

Christopher Mayer, Esq., head of Frier Levitt’s employment practice, is known for delivering effective, tailored legal solutions to address complex employment actions. He regularly presents to industry groups on key legal issues and defends clients against claims involving whistleblowing, harassment, discrimination and breaches of employment contracts.