May 11, 2009

One half or more of all anesthesia groups have service contracts with hospitals and/or ambulatory surgical centers. The majority of anesthesiologists who have hospital privileges have another very important contract with their facilities: the medical staff bylaws.

Courts in more than twenty states have held that the bylaws are a contract between the hospital and its physicians. As of 2008, the states that recognized bylaws as a legal contract or as otherwise enforceable included Alaska, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Maine, Maryland, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Washington D.C. and Wisconsin.

The medical staff bylaws are, according to the Medicare Conditions of Participation, by state statutes and by Joint Commission standards, the source of the hospital’s policies and decisions on medical staff membership. Joint Commission standards prohibit either party from unilaterally amending them or passing conflicting bylaws or hospital policies.

Membership issues are at the heart of many clashes, as are credentialing, peer review and quality assurance. Only members of the medical staff are considered competent to make decisions about the quality of work of other physicians. Hospital administrators have been trying to limit physician self-governance for years, though, with the result that the Joint Commission standard for medical staff bylaws (MS 1.20) was revised in 2007, suspended in 2008 and is due for further action this year, although any changes will only become effective in 2011. The 2007 version of MS 1.20, which will be renumbered MS 01.01.01, is thus still in effect. It maintains the power of the medical staff to govern itself and the right of physicians as opposed to administrators to make patient care decisions by describing in detail the requirements that must be in the medical staff bylaws. Many hospital executives would prefer that separate policies and procedures – that are more readily amended than the bylaws – contain the details of such matters as “the continuous assessment and improvement of the quality of care, treatment, and services.”

One manifestation of this contest for control was the Joint Commission’s adoption of a new leadership standard (LD.03.01.01), effective January 1, 2009, requiring the following:

• The hospital/organization has a code of conduct that defines acceptable and disruptive and inappropriate behaviors.
• Leaders create and implement a process for managing disruptive and inappropriate behaviors.

The new Joint Commission standard does not spell out what constitutes “disruptive and inappropriate behaviors.” Instead, hospitals are expected to develop their own conflict management policies and procedures in order to reflect their own culture, needs, and values.

More hospitals are adopting codes of conduct that confer the power to discipline physicians for “inappropriate behaviors” that have little to do with patient care, according to Elizabeth A. Snelson, Esq., who gave a presentation at the American Society of Anesthesiologists’ Legislative Conference on May 5, 2009. Clauses in some of these codes of conduct are designed to help the hospital perform economic credentialing or to rid itself of physicians who fall out of favor with other clinical personnel or with administrative staff. Ms. Snelson cited the following examples of code-of-conduct definitions of inappropriate behaviors:

• “actions disruptive to hospital operations;”
• “adding to the workload of the staff;”
• “exhibiting demeanor within or outside the hospital that is reasonably likely to be disruptive to hospital operations;”
• making “derogatory” statements about the hospital or its employees;
• demonstrating “unwillingness to relate” to hospital employees; and
• “inappropriate response to staff requests,” including response times and management of call responsibilities.

It is easy to see that an anesthesiologist could violate such prohibitions without realizing that he or she was doing so. Refusing to leave an anesthetized patient in order to place an injection could constitute “adding to the workload of the staff” or “inappropriate response to staff requests.” Opposing the hospital’s plans for a new building at a city planning meeting could be considered an action “disruptive to hospital operations.” An ownership interest in, or even an arrangement to provide anesthesia services at, an independent surgery center, might result in a code-of-conduct letter warning the anesthesiologist to cease interfering with the hospital’s operations.

The Joint Commission recommends that codes of conduct contain, among other things, “Specifics regarding how and when to begin disciplinary actions (such as suspension, termination, loss of clinical privileges, reports to professional licensure bodies).” In this respect the codes can become just as important to a physician’s standing as the medical staff bylaws. Partly because of the vulnerability of physicians to retaliation or to a loss of privileges for anti-competitive reasons under a disciplinary system where decisions can be made by hospital executives for economic and not patient-care reasons, the American Medical Association has asked for a one-year delay in implementation of the new leadership standard. The delay would allow the AMA, in conjunction with The Joint Commission and other organizations, to develop a model appeals process and a definition of disruptive behavior by a physician that “would rise to the level of true abusive behavior.”

Meanwhile, Ms. Snelson advises physicians to seek a single, exclusive code of conduct that applies exclusively to the medical staff and that is included in the medical staff bylaws. This physicians’ code of conduct should be integrated with the medical staff peer review process. It should provide for diversion to a specific medical staff wellness program for disruptive conduct that may have a health-related cause.

The Joint Commission is looking for definitions of “appropriate care” in the medical staff bylaws. All forms of “advocating for patients” should be covered, including filing complaints about the conduct of clinical staff and administrative personnel as well as other criticism intended to stop poor patient care.

Hospital contracts for anesthesiology services should specify that the group members’ performance and privileges will be governed exclusively by the medical staff bylaws and its integrated code of conduct. The most effective way for anesthesiologists and other physicians to ensure appropriate bylaws and codes of conduct is to be active members of the medical staff. 

We hope that you have found this brief summary of a very important subject useful. As always, we welcome comments and inquiries. We look forward to seeing you at the MGMA Anesthesia Administration Assembly conference in Miami next week.