BY ROBERT FIELDER & DR. GARY CLAYTON
Over ten years ago, The Joint Commission (TJC) called for a “Culture of Safety” with the release of their Sentinel Event Alert, Issue 401 and the 2009 Leadership Standards.2 A key element of TJC’s directive was the elimination of undesirable disruptive behavior (UDB). The result has been the proliferation of professional Codes of Conduct (COC) that define UDB as well as processes for management of UDB, usually delegated to a committee of the medical staff (Committee). With ten years of experience, now is a good time to assess the effectiveness of these COCs in fostering a culture of safety by reducing the incidence of UDB.
Making an assessment is challenged by a paucity of empirical data. Confidentiality has prevented the disclosure of the Committees’ deliberations;3 not even de-identified statistics on the number of complaints or interventions are available. This assessment of COC effectiveness is made based on media reports and anecdotes from conversations with chief medical officers, chief nursing officers (CNO), Committee leadership and membership, as well as front line doctors and nurses. Findings reveal that the adoption and enforcement of COCs has done little to reduce the incidence of UDB.
Individuals filing complaints, most often nurses,4 are excluded from the UDB management process. They are not privy to the Committees’ deliberations or evaluation of their complaints. Complainants are not told about actions, if any, taken by the Committee, and not asked about the suitability of any remedy proposed by the Committee. Many nurses reported that the only real feedback they received following the filing of a complaint came when the doctor they complained about confronted them. This lack of transparency can destroy trust and can lead to the degradation of confidence in the organization.5 In many locations, nurses have ceased filing COC violation complaints. In other places, reports of COC violations continue unabated but the complaints cite repeated behaviors by the same physicians. CNOs interviewed believe this latent and simmering frustration will not stay hidden much longer. They insist that health care is just a tweet away from finding itself exposed to the #MeToo movement. An outcome many insist will severely impact the reputations of the country’s health care executives and hospitals.6 These findings suggest that TJC’s call for a culture of safety is not being realized.
Nurse advocates want medical staffs and Committees to intervene with aggressive disciplinary action (e.g. quicker resort to suspen- sions and terminations of staff privileges).7 In contrast, physician supporters argue that the stresses associated with the COC complaint process are adding to the unsustainable demands placed on already overburdened practitioners. They point to burnout among physi- cians,8 growing shortages in critical specialties,9 and question how patient care and safety can possibly be improved by forcing more doctors into early retirement. Given these competing pressures, it is urgent that management of UDB become more effective.
Why Are COCs Not Working?
The limitations of COCs, specifically the ineffectiveness of bans on unwanted behavior or actions, were suspected before TJC mandated them in 2009. In a 2002 survey of 142 hospitals, 90% reported having COCs, “but less than 50 percent felt they were effective.”10 Prior to 2009, medical errors, like UDB, were thought to be the fault of the health care professional.11 A change in attitude came when TJC acknowledged that “to err is human,”12 referring to the November 1999 Institute of Medicine report, To Err is Human: Building a Safer Healthcare System.13 This realiza- tion noted that approaches and methods for making processes in health care safe are highly dependent on fallible humans. These approaches require “systems thinking” to compensate for the errors that are likely to be made.14 “Rather than punishing the ‘who’, [for medical errors] the question has become what processes, or lack thereof, in the hospital, caused or enabled the human error.”15 Committee intervention predicated solely on COCs means we are still just asking who rather than also looking for what caused or contributed to the UDB.
What Can Be Done?
The COC complaint process can be characterized as “peace keeping without peace making.”16 Peace making requires an organizational dispute resolution system17 (DRS) that would prevent, recognize, and quickly recover18 from disruptive events. A DRS would include more elements than just a COC. To be more effective, the COC complaint process needs a wider array of interventions for dealing with UDB. Currently, Committees have only a few interventions to wit: referrals to Professional/Problem-Based Ethics (PROBE) courses,19 psychological or psychiatric evaluations, and anger therapy. Some Committees designate member(s) of the Committee to counsel or coach the offending physician.
Lack of training has limited the effectiveness of this approach; consequently, professional coaches are now being deployed more readily and can be an effective intervention.
Other intervention ideas can be gleaned from the list of adverse consequences from UDB in Sentinel Event Alert 40.20 Damage to communication is on that list but it is much more than a consequence of UDB, it is the means by which all other adverse outcomes are realized. Restoring communication needs to become a priority; it is essential to get the offended and offender talking about the disruptive event and how their relationship can be restored.21 Properly facilitated, these sessions can have a powerful impact on restoring team relationships and performance.
One example of intervention that successfully incorporates many of these concepts comes from a director of an intensive care unit (ICU). After hearing of a UDB event, the director conducts an investigation of the incident. Her investigation includes an effort to identify what triggered the physician’s purported offensive behavior.22 The search for a trigger should be included in any DRS but too often triggers are not thoroughly examined out of concern that doing so is finding excuses for bad behavior, or worse yet, blaming the victim. By considering the trigger, the ICU director can look for performance or process deficiencies with personnel or procedures. The director then engages the offending physician, making it clear that the physician’s behavior is unacceptable regardless of the circumstance or situation that might have preceded the outburst. The director offers the physician an opportunity to make amends by conducting in-service training for the ICU staff to address the specific situation that triggered the behavior.23 Ideally, formalizing the ICU director’s intervention strategy could become a type of community service intervention available to the Committee.
The doctors and nurse also can talk one-on-one. This should be done in a controlled setting best accomplished with the aid of a trained and neutral third party—yes, mediation.24 Not the hard-nosed, distributive bargaining evaluative mediation many health care professionals have experienced in medical malpractice related cases. Rather, these situations call for facilitative or transformative mediation25 designed to aid the parties in coming to an agreement while improving communication and preserving their working relationship.
What Is Preventing Improvement to COC Complaint Processes?
There is no sense of urgency; TJC’s acceptance of the mere presence of a COC Policy as compliance with the Leadership Standard is one explanation for lack of improvement in COC complaint processes. “A second more disturbing barrier is that of tolerance and acceptance [of purported disruptive behavior].”26 Hospital leadership has relied on the volunteer and part-time efforts of Committee members working behind closed doors to address complex workplace issues that could undermine factors critical to the hospital’s success and survival (e.g., employee morale, nurse/physician recruitment/retention, physician engagement, and patient experience).27
Conclusion
The costs and consequences of UDB are rising. Nurses have lost faith in the process and medical staffs are losing patience. To reverse these trends, leadership must lend tangible support to the Committees. Counsels must lead in making the management of UDB proceedings more transparent to restore trust in the COC complaint process. Committees must deploy additional interventions to reduce UDB and promote communication. If not, it seems certain that growing unmet frustrations with the COC complaint process will result in a host of legal challenges and workplace issues (e.g., wrongful termination, hostile workplace, etc.) and TJC’s “Culture of Safety” may never be fully realized.
FOOT NOTES
1. TJC, Behaviors That Undermine a Culture of Safety, Sentinel Event Alert, no. 40, at 1 (July 2008).
2. Comprehensive Accreditation Manual for Hospitals: The Official Handbook; camh. Joint Commission on Accreditation of Healthcare Organizations (2009).
3. Alan H. Rosenstein, Physician Disruptive Behavior; Five-year Progress Report, World J. Clinical Studies 2 (Nov. 16, 2015).
4. Rick Gessler, RN, Alan Rosenstein, MD, MBA, and Liz Ferron, MSW, LICSW, How to Handle Disruptive Physician Behaviors, 7 Am. Nurse Today (Nov. 2012), http://www.physiciandisruptivebehavior.com/admin/articles/32.pdf
5. Frank La Fasto and Carl Larson, When Teams Work Best: 6,000 Team Mem- bers and Leaders Tell What It Takes to Succeed (Thousand Oaks: Sage Publications, Inc. 2001).
6. Tara Bannow, #MeToo Era Highlights Importance of Emergency CEO Succession Plans, 48 Modern Healthcare 6 (Sept. 17, 2008); Rosenstein, supra note 3, at 4.
7. Karen Appold, Tips for Working with Difficult Doctors, The Hospitalist 5 (Dec. 2016).
8. Mike Drummond, Physician Burnout: Its Origin, Symptoms, and Five Main Causes. Family Practice Management 42 (Sept. 2015).
9. Elaine K. Howley, What Can be Done about the Coming Shortage of Specialist Doctors? US News & World Rep., May 2, 2018, https://health.usnews.com/health-care/patient-advice/articles/2018-05-02/what-can-be-done-about-the-coming-shortage-of-specialist-doctors
10. Alan H. Rosenstein et al., Disruptive Physician Behavior Contributes to Nursing Shortage Study Links Bad Behavior by Doctors to Nurses Leaving the Profession, 28 The Physician Exec. 8-11 (Nov. 2002).
11. Molia Sloanne Donaldson, PhD, MS, Introduction to Chapter 3, An Overview of To Err is Human: Re-emphasizing the Message of Patient Safety, Patient Safety and Quality: An Evidence-Based Handbook for Nurses, Agency for Health- care Res. and Quality (Apr. 2008).
12. Paul M. Schyve, M.D., Leadership in Healthcare Organizations, A Guide to Joint Commission Leadership Standards, A Governance White Paper, The Governance Inst. 4 (Winter 2009).
13. LT Kohn, JM Corrigan, MS Donaldson, To Err is Human: Building a Safer Health System, Committee on Quality of Health Care in America, Inst. of Med., Washington, DC (Nat’l Academies Press 2000), https://www.nap.edu/read/9728/chapter/1
14. Schyve, supra note 12, at 4.
15. Id. at 32.
16. Thomas Weber, The Problems of Peace Making, 1 Journal-Interdisciplinary Peace Res. no. 2 (1989).
17. Frank E.A. Sander and Robert C. Bordone, Early Intervention: How to Minimize the Cost of Conflict, Negotiation—Decision-Making and Communication Strategies That Delivery Results, A Newsletter from Harvard Business School Publishing and the Program on Negotiation at Harvard Law School (2005); Etty Liberman, Yael Foux Levy and Peretz Segal, Designing an Internal Organizational System for Conflict Management Based on Needs Assessment, Dispute Resolution J. (May/June 2009).
18. Molia Sloanne Donaldson, PhD, MS, An Overview of To Err is Human: Re-emphasizing the Message of Patient Safety, Patient Safety and Quality: An Evidence-Based Handbook for Nurses, Chapter 3, Agency for Healthcare Res. and Quality (Apr. 2008).
19. Catherine V. Caldicott and Joseph d’Oronzio, Ethics, Remediation, Rehabilitation, and Recommitment to Medical Professionalism: A Programmatic Approach, Ethics & Behavior (Oct. 2014), https://www.tandfonline.com/doi/full/10.1080/10508422.2014.930687
20. See supra note 1, at 1.
21. Michael Redler, MD, 8 Tips on How to Deal with a Difficult Physician, #5, Beckers Hosp. Rev., Mar. 28, 2011, https://www.beckershospitalreview.com/asc-turnarounds/8-tips-on-how-to-deal-with-a-difficult-physician.html
22. Gerry Vassar and Diane Wagenhals. Do You Know Your Anger Triggers?, Lake- side, Lakeside Therapeutic School, Mar. 1, 2011, https://lakesidelink.com/blog/%20lakeside/do-you-know-your-anger-triggers/
23. See Redler, supra note 21, at #7.
24. Conflict Resolution: Mediation—How do We Mediate a ‘Cease Fire Between Two
Employees? Soc’y for Human Resource Management (Aug. 20, 2013).
25. Jessica Katz Jameson, Andrea M. Bodtker, and Tim Linker, Facilitating Conflict Transformation: Mediator Strategies for Eliciting Emotional Communication in a Workplace Conflict, Negotiation J. 26 (Jan. 2010); Jim Hanley, Transformative Mediation—Allow disputing parties to air grievances and come to their own solution, Soc’y for Human Resource Management (Apr. 1, 2010).
26. Rosenstein, supra note 3, at 3.
27. J. Fortune, and D. White, 24 Framing of Project Critical Success Factors by a Systems Model, 24 Int’l J. Project Management 53-65 (2006).
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