Recognizing and Averting Unprofessional Behavior
By Monica P. Navarro
State licensing boards, health care entities, and professional societies regularly identify and discipline physicians who engage in “unprofessional behavior.” By definition and with minor exceptions, “unprofessional behavior” is an extremely esoteric concept that is susceptible to abuse and difficult to defend against. Unless a physician has the disposition of Mother Theresa or otherwise “walks on water,” it is not difficult for a competitor or hospital to tag a physician, who for whatever reason has become persona non grata, as “unprofessional” or “disruptive” and to ultimately justify adverse action or ouster of that physician.
Few physicians understand that charges of unprofessional behavior have serious repercussions well beyond the immediate hospital environment. Contrary to common assumption, the National Practitioner Data Bank (the “NPDB”) requires not only the reporting of malpractice matters, it also requires the reporting of adverse actions against physicians sanctioned for “unprofessional behavior,” where those actions affect licensure, clinical privileges, or professional society membership. Such reports remain on file with the NPDB permanently, unless they are voided or corrected by the reporting entity or the Secretary of the U.S. Department of Health and Human Services pursuant to specific and often difficult to meet requirements.
Though information on the NPDB is not available to the general public, malpractice insurers, state licensing boards, and healthcare entities of all types and across state lines systematically query the NPDB in connection with new licensing or insurance applications and credentialing or privilege requests. Thus, being flagged by the NPDB for ostensible “unprofessional behavior” is a permanent blemish on a physician’s profile and can have significant career-long consequences.
Notwithstanding, few physicians recognize the building blocks of a reportable adverse action in the making. Though most recognize that a 30-day suspension is a significant disciplinary event that warrants legal evaluation and action, many do not realize that such a disciplinary event is commonly the final step of a series of smaller adverse events, which the physician has left unchallenged on the assumption that they were minor in nature.
These seemingly minor adverse events are often actions that do not have any semblance of formality and that do not trigger fair hearing rights; hence they are go unaddressed by the physician. These seemingly minor adverse events range from written complaints about the physician’s conduct, even if only authored by a peer, rather than a department chair, to formal letters of reprimand. Further, they include any other statements that are critical of the physician’s demeanor and that are preserved in a written record (such as in departmental minutes). Over time, these seemingly minor adverse events can easily paper up, with infractions, a physician’s record and credentialing file, making it significantly more difficult to ultimately defeat a reportable disciplinary event which builds on them.
Accordingly, once any such “minor” adverse event is identified, it is imperative for physicians to develop and implement a meaningful plan of action that effectively addresses the situation, rather than wait for additional adverse events to take place. Because it is safe to assume that the circumstances and environment in which the adverse event/s have taken place are complex and laden with conflicting interests and agendas - personal, political and financial - physicians are well-advised to consult legal counsel competent in hospital/physician relations in connection with the development of an appropriate plan of action that will ultimately avert a reportable event.
Monica P. Navarro is a principal in Frank Haron Weiner, PLC. Her practice focuses on health care litigation and transactions, including regulatory compliance, privacy, billing and reimbursement, licensing, credentialing and medical staffing, and fraud and abuse matters. Ms. Navarro also has an active business litigation practice, which includes complex litigation, class action work, and federal and appellate matters.
State licensing boards, health care entities, and professional societies regularly identify and discipline physicians who engage in “unprofessional behavior.” By definition and with minor exceptions, “unprofessional behavior” is an extremely esoteric concept that is susceptible to abuse and difficult to defend against. Unless a physician has the disposition of Mother Theresa or otherwise “walks on water,” it is not difficult for a competitor or hospital to tag a physician, who for whatever reason has become persona non grata, as “unprofessional” or “disruptive” and to ultimately justify adverse action or ouster of that physician.
Few physicians understand that charges of unprofessional behavior have serious repercussions well beyond the immediate hospital environment. Contrary to common assumption, the National Practitioner Data Bank (the “NPDB”) requires not only the reporting of malpractice matters, it also requires the reporting of adverse actions against physicians sanctioned for “unprofessional behavior,” where those actions affect licensure, clinical privileges, or professional society membership. Such reports remain on file with the NPDB permanently, unless they are voided or corrected by the reporting entity or the Secretary of the U.S. Department of Health and Human Services pursuant to specific and often difficult to meet requirements.
Though information on the NPDB is not available to the general public, malpractice insurers, state licensing boards, and healthcare entities of all types and across state lines systematically query the NPDB in connection with new licensing or insurance applications and credentialing or privilege requests. Thus, being flagged by the NPDB for ostensible “unprofessional behavior” is a permanent blemish on a physician’s profile and can have significant career-long consequences.
Notwithstanding, few physicians recognize the building blocks of a reportable adverse action in the making. Though most recognize that a 30-day suspension is a significant disciplinary event that warrants legal evaluation and action, many do not realize that such a disciplinary event is commonly the final step of a series of smaller adverse events, which the physician has left unchallenged on the assumption that they were minor in nature.
These seemingly minor adverse events are often actions that do not have any semblance of formality and that do not trigger fair hearing rights; hence they are go unaddressed by the physician. These seemingly minor adverse events range from written complaints about the physician’s conduct, even if only authored by a peer, rather than a department chair, to formal letters of reprimand. Further, they include any other statements that are critical of the physician’s demeanor and that are preserved in a written record (such as in departmental minutes). Over time, these seemingly minor adverse events can easily paper up, with infractions, a physician’s record and credentialing file, making it significantly more difficult to ultimately defeat a reportable disciplinary event which builds on them.
Accordingly, once any such “minor” adverse event is identified, it is imperative for physicians to develop and implement a meaningful plan of action that effectively addresses the situation, rather than wait for additional adverse events to take place. Because it is safe to assume that the circumstances and environment in which the adverse event/s have taken place are complex and laden with conflicting interests and agendas - personal, political and financial - physicians are well-advised to consult legal counsel competent in hospital/physician relations in connection with the development of an appropriate plan of action that will ultimately avert a reportable event.
Monica P. Navarro is a principal in Frank Haron Weiner, PLC. Her practice focuses on health care litigation and transactions, including regulatory compliance, privacy, billing and reimbursement, licensing, credentialing and medical staffing, and fraud and abuse matters. Ms. Navarro also has an active business litigation practice, which includes complex litigation, class action work, and federal and appellate matters.