American Medical News
By — Posted April 29, 2013
After two years, a heated dispute between Memorial Hermann Memorial City Medical Center and its medical staff finally came to a head in 2012. The conflict arose from a set of amended bylaws the center's administration wanted to enact. The medical staff refused to approve the bylaws and recommended a separate set of bylaws.
“At that point, we had reached an impasse, because the medical staff bylaws can't be amended without the medical staff and the governing body's approval,” said Bernard Duco Jr., chief legal officer for Memorial Hermann Health System, based in Houston.
Instead of moving toward litigation or allowing the dispute to fester, the hospital and medical staff engaged in a conflict intervention. Leaders from both sides agreed to a series of sit-down sessions to discuss their concerns. They reached a compromise on several major issues.
“I'd expected this might take awhile, because there were some pretty big issues separating the groups,” said Duco, who spoke about the experience at the American Bar Assn. Health Law Section's February conference in Florida. “But in a matter of three meetings, the group was able to come to a sufficient agreement. It was helpful that the medical staff leadership realized they had the full attention of the organization and they were talking to the decision-makers within the health system. I think that brings a certain realism to negotiations.”
Legal experts say the Memorial Hermann case is a prime example of how medical staffs and hospitals can quell ongoing disputes before they land in court. Recent legal challenges illustrate how disagreements on bylaws, peer review and other issues can spark turmoil between doctors and hospitals.
For example, a cardiologist in California is suing a hospital that terminated his privileges and allegedly took over the medical staff's control of a subsequent peer review process. In Minnesota, medical staff leaders are suing a hospital they claim unilaterally changed their bylaws without the medical staff's input. A former medical staff president in Illinois recently settled with a medical center he accused of putting profits ahead of patient care after an admissions dispute in which he was threatened with termination.
Going to court with such conflicts drains significant time and cost from both parties, said Minnesota attorney Elizabeth A. Snelson, president of Legal Counsel for the Medical Staff PLLC, which represents medical staffs.
“It shouldn't take that big case and hundreds of thousands of dollars down the rabbit hole” to resolve conflicts, said Snelson, who represented the Memorial Hermann medical staff in its conflict talks.
Taking steps to resolve disagreements early can prevent ongoing battles and enhance relationships between hospitals and medical staffs, said Julian L. Rivera, a health law attorney in Texas and co-chair of the ABA's Physician Issues Interest Group. Building a unified culture is especially important now, as greater emphasis is being placed on clinical integration and hospital-physician alignment, he said.
“Rather than looking at how to resolve conflict, I think it's looking at how to improve communication between the medical staff and the hospital,” Rivera said. “Even small improvements can create great opportunities for clinical integration and cost savings.”
Tension between doctors and hospitals often starts because of negative perceptions about the other side, said John K. Sparzo, MD, vice president of medical affairs at Hendricks Regional Health in Indiana. For instance, there may be misconceptions that doctors hate change or hospital administrators care only about profits. Such thinking creates unease between both sides and affects interactions, he said.
In other cases, a past conflict can remain a barrier between physicians and administrators, despite new leadership, said Brian C. Betner, educational programs vice chair of the American Health Lawyers Assn.'s Medical Staff, Credentialing and Peer Review Practice Group.
“Some medical staff leaders have worked through 20 years of hospital CEOs,” Betner said. “They may have had a sour relationship with a fair amount of distrust, and the current CEO is having to carry that burden still. It does take some time to overcome that level of distrust.”
Common catalysts for hospital-medical staff disputes vary, but legal experts say many problems stem from what are perceived as challenges to physician autonomy, medical staff processes and patient care decisions.
For instance, Rivera said the physician call schedule is frequently a source of discord. Traditionally, a call schedule is overseen by the medical staff, he said. But more hospitals are contracting exclusively with specialist groups to provide certain services. This can create disagreements over which doctor should be called and who controls the schedule.
“You can have tension between hospitals and medical staffs when physicians get upset with how call is being assigned and how patients are being directed,” he said.
In extreme cases, hospital administrators unfairly take over a medical staff's duties, said Minnesota attorney Snelson.
“I still run into hospitals that the medical staff bylaws demand that the board gets to vet [medical staff] nominations, gets to have the hospital administration on the nomination committee or says an election isn't allowed until the board approves the outcome of the election,” she added.
American Medical Association policy supports self-governing, autonomous medical staffs that have the power to elect medical staff and appoint committees. The policy says that credentialing for medical staff privileges should be done primarily by the medical staff, but with hospital input.
One of the best ways to close divides between hospitals and physicians is to bring both sides together for discussions when medical centers are undergoing change, said Dr. Sparzo, of Hendricks Regional Health in Indiana.
“We need to treat physicians as the very front-line people that they are and involve them from the beginning,” he said.
For example, Dr. Sparzo's hospital is implementing a comprehensive electronic health records system, and the process is causing frustration among some doctors, he said. To address these concerns, Dr. Sparzo organized open sessions for physicians, information systems specialists and administrators to share feedback on the new system.
“We learned in the first couple sessions four or five things that weren't working well, and they're all fixable,” he said. “What a great opportunity to say, 'We heard you,' and we're going to” address those issues.
Medical staffs also need to have strong leaders who can communicate effectively when concerns arise, said Texas attorney Rivera.
“It takes medical staff leadership willing to open the potential conflict up to a discussion at the medical staff level and not just with hospital administration,” he said. “Hospital medical staff [relations] are generally three parties: administration, medical staff leaders and medical staff members. When there's a conflict among any of those three, then good leadership gets the parties into a facilitated conflict resolution process as early as possible and makes that part of the culture of the medical staff and hospital operations.”
Hospitals should be straightforward with physicians when changing policies or adding new ones, Dr. Sparzo said.
“As administrators, we're often put in the position of pushing physicians into a [direction] that we know is really about payment or complying with regulatory issues and really doesn't have to do with patient care,” he said. Administrators “need to be transparent about that. If it's not a patient safety issue, you have got to be honest.”
Attorney Snelson said it's essential for medical staffs to have their own representation, rather than relying on hospital legal counsel to answer questions or aid in conflict resolution.
“The overwhelming majority of medical staffs do not have representation,” she said. “A medical staff needs an independent attorney who is knowledgeable about medical staff law.”
When conflicts do arise, Duco, of Memorial Hermann, suggests retaining an outside facilitator who can objectively mediate the disagreement.
“Get a facilitator that both parties trust and have confidence in,” he said. “We selected a lawyer, but it doesn't have to be a lawyer. It could be a health care consultant or a retired physician.”
The key is to confront conflicts sooner rather than later, said Michael Callahan, AHLA strategic activities vice chair of the Medical Staff Credentialing and Peer Review Practice Group.
“Whenever issues are identified, be proactive about the problem,” he said. “Oftentimes, they're looking the other way until it's too late. Get on top of a problem right away with an eye toward identifying the issue and address the issue rather than let the problem fester.”