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How to Avoid a Clinical Fair Hearing

By: Dr. Jonathan Burroughs
Tel: 603-733-8156
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Not too long ago, I had the sad task of testifying at a civil litigation and a judicial hearing for two physicians who had been suspended from their respective medical staffs. In both cases, the suspensions and resultant procedural rights were avoidable because proactive communication and management did not effectively take place. Such events should be rare and most medical staffs can easily avoid them by focusing on preventive actions and addressing potential performance issues early in a supportive and assertive manner.

What steps can be taken to avoid suspending a physician and when should they occur?

1. Credentialing and Privileging

In a volume based reimbursement world, every physician was potential revenue and few would consider not recommending membership or privileges except for gross incompetence. Today, in a pay for value world (70% compliance with core/SCIP measures, 30% HCAHPS scores), a physician will be an asset if s/he is committed to practicing evidence based medicine and providing a high level of service. Those who cannot or will not commit to such basic tenets of good medical practice will place themselves, their patients, their medical staff, and their organization at risk. Furthermore, those who cannot commit to high standards of professional conduct will increase risk for their patients, their staff, and their organization by making it far more likely that they will be sued in the event of an adverse outcome. The American Health Lawyers Association (AHLA) has conclusively demonstrated that only 3% of patients who are inadvertent victims of medical negligence will sue their physician(s) and it is usually for a failure of communication with the patient or his/her family that left them feeling abandoned at a time of vulnerability and need. It is acceptable for a medical staff and governing board to establish:

a. Willingness to follow evidence based practices as recommended by clinical departments and approved by the MEC
b. Willingness to provide high levels of service to patients, staff, and colleagues
c. Willingness to set a high professional level of conduct

as eligibility criteria to be considered as a member of the medical staff. If the applicant declines to sign an such an assertion, his/her application may be deemed incomplete and not processed further without triggering a denial and procedural rights.

2. Negotiating expectations and performance metrics

Once on staff, it is important to negotiate performance expectations and metrics in all dimensions of performance? Why negotiate? Some metrics may be controversial, not fully backed by research, or unable to be credible due to challenges in data collection. For instance, some organizations may not be able to risk/severity adjust data and comparing mortality rates for a primary care physician with an internist would not be reasonable. As another example, if the organization's software or abstracting systems cannot appropriate attribute aspects of performance to the correct practitioner, the attending physician of record may be inappropriately assigned responsibility for a case that s/he had no part in. Some metrics are required by regulators and accreditors (e.g. The Joint Commission, DNV, HFAP, and CMS) but most are strategic that should be based upon the strategic goals and objectives of the organization. Thus, management, the medical staff, and the board should all participate in discussion over the relevance and importance of both performance expectations and metrics. Physicians who take ownership of performance expectations will generally be committed and successful in fulfilling them; those who will not or cannot accept reasonable expectations, metrics, and targets will need to be addressed early so that they can either be re-oriented to the importance of medical staff approved expectations or asked not to participate at all in a system that they may be unable to support.

3. Responding to measurement

Most reasonable physicians today understand that performance data is imperfect and designed to aid a responsible practitioner in self-monitoring and assessing performance. Unfortunately, some physicians cannot accept what may be a significant pattern or trend in performance that indicates that their practice patterns are significantly different from their peers. Such issues should be addressed early with both support and assertion. Once performance expectations have been accepted, early indication that they are not being met must be managed in a way that is positive but that leaves no doubt that failure is not an option.

4. Providing performance feedback

Many physician leaders are not trained in having 'crucial conversations' with colleagues regarding performance issues and it is vital that management provide them with the training to do so. Performance feedback is a time to celebrate excellent performance, confirm good performance and manage low performers in a constructive and time limited manner. This requires the creation of an 'improvement plan' with measurable goals, timeframes, responsible parties (both individual and leader) and specific consequences for both a positive and negative outcome. Measurement is an eloquent expression of what the medical staff feels is most important and failure to address individuals who cannot successfully perform undermines the value and integrity of the measurement system. Most reasonable individuals will improve so that they are not perceived as a 'negative outlier' by their peers as professional respect is important to most.

5. Managing poor/marginal performance

When a physician 'fails' to successfully complete an improvement plan, their performance must be more rigorously managed. This requires an experienced leader/manager who is understanding, empathetic, and firm in his/her resolve to help the physician. Sometimes, the physician may not be able to perform certain clinical/surgical skills but can safely perform others. For instance, I once worked with a Urologist who did well as long as he didn't extend himself to complex difficult to manage procedures and I encouraged him to voluntarily withdraw those specific privileges so that he could continue an otherwise successful clinical career. These are difficult conversations to have and are important to the success of an otherwise competent individual

6. Have a frank conversation when the performance cannot be successfully managed

Some individuals were not meant to practice in certain clinical specialties. An old colleague of mine was convinced by his father that he should be a surgeon; however, it was clear to everyone that he was innately unqualified to do this work. Unfortunately, the residency program enabled him to 'get by' and so compassionate physician leaders sat down with the individual and encouraged him to pursue a less technically demanding specialty and he moved into the ambulatory setting and successfully cared for stable patients in an empathetic and understanding manner. These are difficult conversations to have and they require wisdom and empathy to do so. The same applies to individuals whose emotional temperaments may not be suitable to certain types of practice or who may have an undiagnosed impairment which may preclude an individual from practicing safely.

The Ritz Carlton Hotel Chain considers it a human resource sentinel event worthy of a root cause analysis whenever it fires an employee for cause and I would like to see a time when every medical staff and healthcare organization thinks likewise. Suspending a physician should, with rare and egregious exception, be unnecessary the vast majority of the time and it is incumbent upon physician leadership to appropriately manage performance at all stages in order to prevent a performance issue from undermining an otherwise good physician's professional life.

Jonathan H. Burroughs, MD, MBA, FACHE, FAAPL, is President and CEO of The Burroughs Healthcare Consulting Network, Inc., and works with some of the nation's top healthcare consulting organizations to provide 'best practice' solutions and training to healthcare organizations throughout the country in the areas of governance, physician-hospital alignment strategies, credentialing, privileging, peer review and performance improvement/patient safety, medical staff development planning, strategic planning, physician performance, and behavior management as well as ways in which physicians and management can work together in new ways to solve quality, safety, operational, and financial challenges.

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