Health Leaders Media Blog

Posted on the HealthLeadersMediaBlog by Bart Lee, February 5, 2009.

Why “disruptive physician” needs a better definition.

“Disruptive physician” all too often means: “You’re outta here!” Now the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has declared a “Sentinel Event Alert.” JCAHO sometimes seems like a wholly owned subsidiary of Tenet and HCA, but giving it the benefit of the doubt, it has nonetheless advanced a view counter to the interests of physicians. A sentinel event used to be an inappropriately dead patient. Now in the name of, and abuse of the idea of, “patient safety,” it seems to mean a physician that a hospital wants get rid of.

This implicit “Code of Silence,” as it is enforced by the threat of the label of “disruptive,” compromises patient safety. JCAHO mandates two new performance elements, EP-4 & 5. One looks to a code of conduct, which is fair enough. But the second looks to an in-house process for managing behaviors involving “disruption.”

The trouble is, nobody’s starting from Square One here.

Labeling a doctor disruptive is an established “management” technique fostered by health care industry lawyers. It is designed to pre-ordain the result of the then- inevitable peer review discipline proceedings that will expel the physician. It is the trigger for the initial, unilateral and summary suspension of a physician, which then gets reported nationwide in the National Practitioner Data Bank. It is the end of any career in medicine.

This technique as counseled and practiced is all too often a matter of hospital management by a kind of medical politics of destruction. Like the Wall Street Masters of the Universe, hospital administrators get credit for short-term performance, but are not held accountable for longer term failures, such as running good doctors out of practice. For an administrator the rule is simple, My Way or the Highway. Yet there is no policing of the administrators (unless the FBI steps in, as at Tenet Redding).

Only recently has Medicare declined to pay for at least some “never events” that any decent hospital administration would avoid – and most such events have little to do with physicians. Retaliation against a physician advocating for better patient care should be a never-event. JCAHO would be well advised to look at this side of the disruption issue.

Charly Kagay and I have represented both Dr. Nizar Yaqub and Dr. Gil Mileikowsky, whose unhappy predicaments are reported in California appellate cases. See: Yaqub v. Salinas Valley Memorial Healthcare System (2004) 122 Cal. App.4th 474, 18 Cal. Rptr.3d 780; Mileikowsky v. West Hills Hosp. Medical Center – 45 Cal. 4th 1259 (2009). Dr. Mileikowsky and I have written an article on ways to counter retaliation: How to Protect Physician Whistleblower – Patient Advocates – from Retaliation to Benefit Patients – a legal analysis regarding Summary Suspension, Retaliation, Peer Review and Remedies, by Dr. Gil Mileikowsky, MD and Bartholomew Lee, Attorney at Law.