What should (or can) you do if a locally recognized “Best Physician” throws a scalpel in the direction of a nurse during surgery? What are a CMO and CNO’s obligations to investigate when he/she learns there is a “situation” between a doctor and a nurse? How do you balance patient safety and compliance with anti-discrimination laws when the medical staff revokes an impaired physician’s privileges?

Jackson Lewis attorneys Tiffany Buckley-Norwood (Detroit), Margaret J. Strange (Hartford) and Mary M. McCudden (Baltimore) discussed these scenarios and more during a two-part webinar series on challenging physician employment situations. The series delved into the unique problems that healthcare organizations face when navigating their obligations under the labyrinth of state and federal employment laws. Here are some key takeaways:

1. Healthcare institutions are not immune to #MeToo. Claims of sexual harassment can arise out of comments about gender-based stereotypes that sometimes are made by members of the medical staff. When a medical staff addresses these comments and other misconduct, it is important that the medical staff shares this information with those who have a need to know, such as human resources and department chairs.
2. Additional considerations come into play when situations involve medical residents. The Accreditation Council for Graduate Medical Education Common Program Requirements state that all medical residents must receive an employment contract and that the contract must contain grievance and due process provisions. Residency programs may also have obligations under Title IX in connection with their residency programs in addition to federal and state anti-discrimination laws that apply to non-resident physicians.
3. Rates of substance abuse among physicians are slightly above the national average. Generally, state law requires physicians to report impaired colleagues to the physician licensing authority. These requirements vary by state. Some states also require healthcare institutions to report impaired physicians. When physicians with a history of substance abuse return to practice after a period of successful treatment and rehabilitation, healthcare institutions also must be aware of anti-discrimination laws protecting recovering addicts, such as the Americans with Disabilities Act. The webinar series includes a discussion of how to respond to suspected drug use.
4.  Nearly one-third of all physicians in the U.S. are over the age of 60. Employed physicians are protected against discrimination by the Americans with Disabilities Act, the Age Discrimination in Employment Act (ADEA), companion state laws, and other anti-discrimination laws. Some courts have also extended protections under federal and state anti-discrimination laws to non-employed physicians. Healthcare entities should, therefore, exercise caution in utilizing age-based rules for mandatory cognitive or competency testing related to employment and medical staff privilege determinations.
5. A healthcare organization must determine what kind of culture it wants to set. Human Resources and Medical Staff leadership need to work together to Model expected behavior; Message expectations; Manage situations; and Monitor the workplace.