Legal UpdateAugust 2021
Unprofessional ConductWhat does unprofessional conduct mean to you? When I envision unprofessional conduct, I think back to my medical student days watching one of the cardiothoracic surgeons throw surgical instruments at the scrub tech who handed him the wrong instrument. More modernly, profane and belittling language have been directed my way during early morning consultations from an awakened consultant. The Texas Medical Board (TMB) uses a broad definition of unprofessional conduct (see below) to encompass behavior ranging from physical boundary violations with a patient, to essentially anything that disrupts patient care. Here, I will concentrate on the unprofessional verbal and/or physical interactions that sometimes arise between medical colleagues. Irrespective of the position within your medical facility, though (physician, NP, PA, janitor), you will soon know of the many resources available at your local (medical facility), state (TMB), and Federal (National Practitioner Data Bank (NPDB)) levels to curtail any and all unprofessional physician conduct. Where available, I will use real examples to highlight these issues. State Level ResourcesThe Texas Administrative Code (The Code) is a compilation of all the state agency rules in Texas. Part 9 of The Code is devoted to the TMB Rules that guide medical practice in Texas. Board Rule 190.8(2)(P) notes that, “Unprofessional and dishonorable conduct that is likely to deceive, defraud, or injure the public within the meaning of the Act (Medical Practice Act) includes, but is not limited to: behaving in a disruptive manner toward licensees, hospital personnel, other medical personnel, patients, family members or others that interferes with patient care or could be reasonably expected to adversely impact the quality of care rendered to a patient.” As made quite clear by the Board Rules above, you or your colleagues will no longer need to tolerate conduct that interferes with your ability to perform your ED duties. Furthermore, as evidenced by recent TMB activity, they have become particularly active in addressing behavior that falls within the scope of the rules addressed above. For example, on March 5, 2021 the TMB ordered cardiothoracic surgeon, Dr. Alfredo F. Gurmendi, MD, to complete the TMB Remedial Coaching Program at the University of Texas at Dallas School of Management (Physician Coaching) within one year, at his own expense. The TMB noted Dr. Gurmendi spoke in a rude and inappropriate manner to members of the OR staff and his female coworkers. Dr. Gurmendi’s hospital subsequently suspended his privileges for 7 days, which then triggered a mandatory report to the TMB, and the ensuing punishment. Additionally, on March 5, 2021 the TMB ordered Ryan R. Barrientos, MD, to complete eight hours of CME in ethics. The Board found Dr. Barrientos sent an “unprofessional text message” to a colleague while having issues with excessive alcohol at the time. The process for making a complaint to the TMB is quite simple. Any aggrieved person can hop online to the TMB website (https://www.tmb.state.tx.us) and quickly file an online complaint. There is a big blue “COMPLAINT PROCESS” hyperlink on their home page. Alternatively, one just needs to directly access the following website: https://www.tmb.state.tx.us/page/place-a-complaint and then click on the “online complaint form.” Facility Level ResourcesAll medical facilities have medical staff bylaws that guide daily operations, as well as how to address medical staff issues when they arise. If you don’t recall seeing your facility’s bylaws, they were likely presented to you, and hastily signed off, among the wave of digital documents during your credentialling process! You can always request a fresh copy for your records at any time. Make sure though, that you have the iteration of the bylaws you digitally acknowledged, as the bylaws change every one to two years. Pursuant to those bylaws, all hospitals and medical facilities are mandated to report any suspensions or restrictions of privileges of any physician, physician assistant, acupuncturist, or surgical assistant to the TMB and NPDB (see below). As noted above, in the case of Dr. Gurmendi, the hospital report to the TMB prompted an investigation and subsequent punishment commensurate with his unprofessional acts. All medical staff should be familiar with their chain of command for initiating a complaint against another staff member. If the complaint happens to be against someone within your chain of command, elevate the complaint to their superior or supervisor. As an aside, retaliation against the complainant (person making complaint) is a whole separate issue that creates significant professional, economic, and possibly criminal perils for the retaliating party. In short, do not retaliate! Federal Level ResourcesCongress enacted The Health Care Quality Improvement Act (Title IV) in 1986 that created the NPDB. Since that time, three other laws have been ratified that have shaped the guidelines used today. Congress created the NPDB as a nationwide information clearinghouse to gather and publish matters related to the professional competence and behavior of health care professionals. Congress feared that physicians and dentists could move from state to state to evade their prior medical misadventures or inappropriate conduct. At the time, Congress perceived that a rising rate of malpractice litigation was commensurate with a declining quality of medical care provided. Irrespective of the legitimacy of this claim, the NPDB was born and it survives today. Information available in the data bank to eligible entities or those wishing to self-query their accounts are: medical malpractice payments, adverse actions related to licensure, changes in clinical privileging, professional society review actions of its members, DEA actions, and exclusions from federal health care programs (i.e. Medicare, Medicaid). The totality of the guidelines can be viewed online at: https://www.npdb.hrsa.gov/resources/aboutGuidebooks.jsp. Issues related to unprofessional conduct that may prompt an NPDB report from a medical facility or the TMB include:
On March 5, 2021, Dr. Anshik Kakria, M.D., voluntary surrendered his Texas medical license after he was terminated from his residency program after failing a drug screen. Not only did his termination from his residency program constitute a reportable event, but the voluntary surrender of his Texas medical license also established the grounds for an NPDB report. Similarly, a TMB and NPDB report were generated on March 5, 2021, when Dr. Michael Taylor, M.D., resigned his hospital privileges while under peer review investigation for failure to meet the standard of care in a patient interaction. The action taken against Dr. Gurmendi (7 day suspension noted above) by his hospital, would not in itself be reportable since the suspension did not exceed 30 days in duration, but the remedial action taken by the TMB would be grounds for an entry into the NPDB. Not every unpleasant interaction or disagreement with a colleague are grounds for a report to governing authorities. On the contrary, healthy constructive debates and sometimes heated discussions regarding clinical care tends to foster improved clinical outcomes for our patients. If reasonable efforts to curb unwanted conduct fails and it ever does come time to report a colleague, your report to governing authorities must be done in good faith. In other words, the details of your report must be premised on legitimately documented encounters and preferably, witnesses to corroborate the claim(s) made. A report made in bad faith, that contains false, misleading, and unsubstantiated accusations, can subject the reporter to very harsh scrutiny by the receiving authority(s) (medical facility, TMB, Federal authorities) as well as potential criminal and civil (economic) liability for defamatory accusations. Kenneth Alan Totz, DO, JD, FACEP No information within this publication should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances. |
