The Joint Commission's Sentinel Event Alert on Disruptive Behavior: Further Thoughts

21 July 2008 Publication
Authors: Nathaniel M. Lacktman Shirley P. Morrigan

Legal News Alert: Health Care

On July 9, 2008, The Joint Commission (TJC) issued a Sentinel Event Alert (Alert) that addresses intimidating and disruptive behavior. (“Behaviors that undermine a culture of safety”) This Alert reiterated TJC’s previously announced requirements that as part of its updated Standards, effective January 1, 2009, TJC will require hospitals and other organizations to have a code of conduct (Code) that defines disruptive behavior and a process to address such behavior. (TJC Standard LD.03.01.01, EP 4, EP 5, effective January 1, 2009.) EP 4 states “The hospital/organization has a code of conduct that defines acceptable and disruptive and inappropriate behaviors.” EP 5 stipulates that “Leaders create and implement a process for managing disruptive and inappropriate behaviors.” These are the only TJC requirements actually effective January 1, 2009.

TJC has said that it also will incorporate interpersonal skills and professionalism as part of the core competencies in the credentialing process. (TJC Standard MS.4, introduction, Effective January 1, 2009.) In its Alert, TJC lists a number of actions as suggestions to deal with disruptive behavior. These actions are not requirements, but rather TJC’s guidance on how to cope with such behaviors. While TJC’s suggestions offer some good strategies on how to approach this difficult topic, they also contain some traps for the unwary.

Disruptive behaviors are one of the most difficult problems that health care organizations face today. Although the majority of employees and medical staff members act professionally and are dedicated to quality patient care, virtually every organization has a few difficult medical staff members or employees who have the potential to disrupt the dynamic of the organization. Disruptive behavior can be hard to define, as many cases involve subjective evidence. Fortunately, clear cases of violent behavior or threats of violence are rare, but murkier cases of behavior perceived by others as dismissive, intimidating, brusque, or belittling are more common. Even though this more subjective intimidating or belittling behavior can easily demoralize other team members and create a stressful environment that can threaten quality patient care, it can be hard to prove.

Disruptive behavior also is hard to control, especially when the behavior is engaged in by medical staff members, many of whom are not employees. In the medical staff context, discipline against disruptive behavior is more complicated than with employees. Discipline is handled through the medical staff bylaws and applicable law, both of which govern most corrective action taken against medical staff members. Some hospitals may consider taking administrative action against medical staff members. This can be problematic because of medical staff hearing rights in their bylaws. However, medical staff hearings require a large input of resources and may not be the right forum, depending on the facts. Administrative action may be the only way for organizations to meet their obligation to prevent a hostile work environment for its employees, as required by federal and state law.

Below are TJC suggestions that we believe are especially noteworthy, along with our comments. We have reorganized and grouped some of the suggestions for ease of understanding. We have not commented on every suggestion in the Alert.

“1. Educate all team members — both physicians and non-physician staff — on appropriate professional behavior defined by the organization’s code of conduct. The code and education should emphasize respect … .” In recent years, there has been some discussion in California about whether all medical staff members are required to participate in the sexual harassment training mandated for certain persons under state law, as they are not employees and may not act as supervisors. TJC is not creating a requirement; this is another authority that suggests that medical staff members should receive education on such issues. Organizations should check with counsel regarding their obligation to provide sexual harassment training for certain medical staff members, but it is certainly advisable to ensure that all medical staff members and employees are educated in the organization’s code of conduct.

“2. Hold all team members accountable for modeling desirable behaviors, and enforce the code consistently and equitably among all staff regardless of seniority or clinical discipline in a positive fashion through reinforcement as well as punishment,” and “3. Develop and implement policies and procedures/processes appropriate for the organization that address: Medical staff policies regarding intimidating and/or disruptive behaviors of physicians within a health care organization should be complementary and supportive of the policies that are present in the organization for non-physician staff.” These suggestions address concerns of some physicians that they are governed by codes of conduct while other staff members such as allied health professionals, nurses, and administration members may not be. It may be reasonable in many cases to have separate codes for medical staff members and employees based upon the differences in their responsibilities and in the ways that medical staff members and employees are regulated at both the state and federal level. However, all staff members should be expected to comply with a code. The codes, if separate for medical staff members and employees, should be similar. Where the codes will likely diverge is in the consequences of a violation. Whereas an organization may readily suspend an employee, the corrective action process may be considerably more complicated for medical staff members. A culture of professionalism and respect requires that all employees and medical staff members within an organization be held responsible for disruptive behavior.

“4. Develop an organizational process for addressing intimidating and disruptive behaviors (LD.3.10 EP 5) that solicits and integrates substantial input from an inter-professional team including representation of medical and nursing staff, administrators and other employees.” It is a good idea, while developing codes, to seek input from all parties who will be subject to the code. Where there is more than one code, input should be sought from both the organization’s medical staff and the employees on their respective codes.

“3. Develop and implement policies and procedures/processes appropriate for the organization that address: ‘Zero tolerance’ for intimidating and/or disruptive behaviors, especially the most egregious instances of disruptive behavior such as assault and other criminal acts. Incorporate the zero tolerance policy into medical staff bylaws and employment agreements as well as administrative policies.” Zero tolerance is an important concept, but an organization should be careful how a zero-tolerance policy is worded and implemented. As TJC suggests, organizations should have zero tolerance for egregious acts. Even when such an act has been alleged, however, an organization must perform a thorough, unbiased, and well-documented evaluation of the situation before it decides to take drastic action such as summarily suspending a medical staff member.

“3. Develop and implement policies and procedures/processes appropriate for the organization that address: Reducing fear of intimidation or retribution and protecting those who report or cooperate in the evaluation of intimidating, disruptive and other unprofessional behavior. Non-retaliation clauses should be included in all policy statements that address disruptive behaviors.” Retaliation must be well defined in any code as prohibited. A policy that protects persons who report disruptive behavior that is enforced should help reduce the anxiety many people may feel about reporting. Organization staff members who are responsible for or more likely to receive reports (e.g., head nurses, administrative staff, and medical staff leadership) should be trained to take reports of disruptive behavior seriously and deal with the reports in a way that makes the person who reports the incident comfortable. They also should evaluate the reports and deal with them expeditiously or refer them rapidly for appropriate action. We recommend that organizations use the word “evaluate” in order to avoid confusion with the word “investigate,” which occurs with respect to the National Practitioner Data Bank (NPDB), which requires reports of resignations and other events that occur during investigations of professional competence or conduct. We recommend that organizations define the term “investigation” in their bylaws to be a process initiated by the medical executive committee that assesses a member’s quality of care. That way, disruptive conduct evaluations would not lead to NPDB reports.

“3. Develop and implement policies and procedures/processes appropriate for the organization that address: Responding to patients and/or their families who are involved in or witness intimidating and/or disruptive behaviors. The response should include hearing and empathizing with their concerns, thanking them for sharing those concerns, and apologizing.” Apologies can be a good way to diffuse upset or angry patient situations, but apologies must be worded carefully. They should include only expressions of sympathy and not admit wrongdoing or error. While some states have so-called “apology laws,” these laws generally do not protect admissions of guilt. Organizations should confer with counsel about the laws in their states on this subject. Additionally, whenever there is an encounter with a patient where an apology is given, it should be well documented. It is important that an organization be able to show that an evaluation was conducted and appropriate action was taken. As a general rule, this should be documented by the risk ,management department and not be placed in the patient’s medical record.

“6. Develop and implement a system for assessing staff perceptions of the seriousness and extent of instances of unprofessional behaviors and the risk of harm to patients,” and “7. […] Monitor system effectiveness through regular surveys, focus groups, peer and team member evaluations, or other methods. Have multiple and specific strategies to learn whether intimidating or disruptive behaviors exist or recur, such as through direct inquiries at routine intervals with staff, supervisors, and peers.” Organizations may choose to assess the effectiveness of their process for dealing with disruptive behavior. This creates transparency and allows the organization to understand whether its policies are working. However, organizations should be very careful to select a limited number of factors to consider and then define and measure them well. Attempting to do too many studies may result in studies that are not fully completed, and can become a distraction for staff members rather than helping an organization to understand its process. It is better for an organization to focus narrowly on a few aspects of their process that people in the organization believe are important to the organization.

“7. Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior. Include ombuds services and patient advocates, both of which provide important feedback from patients and families who may experience intimidating or disruptive behavior from health professionals ... .” An anonymous reporting system may help encourage reporting, but it can create problems in proving that allegations are true. When the reporting party cannot or will not be interviewed as part of the evaluation process, or will not testify should a hearing result, it can be nearly impossible to determine the facts of the situation. If an organization has established and consistently enforced a firm non-retaliation policy for good-faith reporting, the reporting parties should feel comfortable reporting without need for anonymity. While it may not be realistic to have all reports made by name, organizations should understand the disadvantages of anonymous reporting.

“8. Support surveillance with tiered, non-confrontational interventional strategies, starting with informal ‘cup of coffee’ conversations directly addressing the problem and moving toward detailed action plans and progressive discipline, if patterns persist. These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety.” There are egregious situations where protecting patient safety may actually prevent the use of this kind of tiered-discipline strategy and immediate action must be taken. In that case, a thorough evaluation of the situation should be done very rapidly. Unless the behavior is extremely severe such as a situation that could result in imminent danger, discipline should generally be a progressive process that offers multiple opportunities for a staff member to change his or her behavior. Whenever an unusual occurrence report or other complaint of disruptive behavior is received, a thorough evaluation should begin. The subject of the complaint should quickly be notified in writing about the specific unacceptable behavior of which he or she is accused. Appropriate personnel should interview the complainant, see if there are more details, and assess the complainant’s credibility. This is very important to a fair process.

“9. Conduct all interventions within the context of an organizational commitment to the health and well-being of all staff, with adequate resources to support individuals whose behavior is caused or influenced by physical or mental health pathologies.” It is very important to consider, early and often, issues such as physical illness, substance abuse, mental illness issues, social issues, divorce, financial distress, or other personal issues as causes of inappropriate behavior. Risk management should work with an organization’s Well Being Committee to establish a process to help personnel work on changing behavior. This may include helping the person obtain anger management classes, or assistance with substance abuse, or mental or physical health issues, as needed.

“11. Document all attempts to address intimidating and disruptive behaviors.” This is excellent advice. As we have discussed, organizations should document every incident thoroughly. It is critical that every event, including early non-confrontational interventions, be well documented with detailed follow-up letters. The specific behavior that violated the code should be clearly described, along with a rationale for why the behavior is disruptive, intimidating, or otherwise unprofessional. Good documentation helps an organization establish attempts made at non-punitive intervention before discipline is required. It also helps the organization track incidents and ensures that its process for reporting and handling incidents is working. Additionally, it allows the person complained about to understand what he or she is doing wrong.

The underlying goal of any code and disruptive behavior policy should be to foster a culture of respect and professionalism within the organization. Such a culture contributes to an environment of positive teamwork and quality patient care. If medical staff members and employees in an organization understand how threatening, intimidating, and belittling behavior can disrupt their environment and threaten patient safety, this may help motivate them to work to be professional in the workplace. A good policy on intimidating and disruptive behavior should provide medical staff members and employees who are willing to correct their own behavior an opportunity to so, except in cases in which behavior is so egregious that it creates an immediate threat to the safety of patients, medical staff members, employees, or others. Many of TJC’s suggestions, if properly implemented, may help in the formulation and enforcement of such a policy, but organizations must carefully consider how to word all policies, and enforce all policies fairly and consistently.


Legal News Alert is part of our ongoing commitment to providing up-to-the minute information about pressing concerns or industry issues affecting our health care clients and colleagues. If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals: 

Stephanie L. (Lynn) McClelland
Los Angeles, California
213.972.4560
smcclelland@foley.com

Shirley P. Morrigan
Los Angeles, California
213.972.4668
smorrigan@foley.com

Rachelle R. Hart
Milwaukee, Wisconsin
414.297.5656
rhart@foley.com

Nathaniel M. Lacktman
Tampa, Florida
813.225.4127
nlacktman@foley.com

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