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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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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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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 t