Never discount the importance of having a plan to combat allegations of unprofessional behavior

M NavarroMonica P. Navarro is a principal at Frank, Haron, Wein- er and Navarro, PLC. She represents a wide variety of en- tities and profes- sionals in the areas of regulatory com- pliance, medical staffing, and fraud and abuse, and the matters she’s handled have ranked among the top settlements in Michi- gan. Navarro serves on a number of health care boards, including the State of Michigan Board of Psychology, and is a frequent speaker on health care topics nationwide. Contact her at (248) 558-2700 or mnavarro@vezinalaw.com.

State licensing boards, health care en- tities, and professional societies regularly identify and discipline physicians who en- gage in “unprofessional behavior.” By def- inition and with minor exceptions, “un- professional behavior” is an extremely esoteric concept that is susceptible to abuse and difficult to defend against.

Unless a physician has the disposition of Mother Teresa or otherwise walks on water, it is not difficult for a competitor or hospital to tag a physician, who for what- ever reason has become persona non gra- ta, as “unprofessional” or “disruptive” and to ultimately justify adverse action or the ouster of that physician.

Few physicians understand that charges of unprofessional behavior have serious repercussions well beyond the im- mediate hospital environment. Contrary to common assumption, the National

Practitioner Data Bank (NPDB) requires not only the reporting of malpractice mat- ters, but also the reporting of adverse ac- tions against physicians sanctioned for “unprofessional behavior,” where those ac- tions affect licensure, clinical privileges, or professional society membership.

Such reports remain on file with the NPDB permanently, unless they are void- ed or corrected by the reporting entity or the Secretary of the U.S. Department of Health and Human Services pursuant to specific and often difficult to meet re- quirements.

Though information on the NPDB is not available to the general public, mal- practice insurers, state licensing boards, and healthcare entities of all types and across state lines systematically query the NPDB in connection with new licensing or insurance applications and credentialing or privilege requests. Thus, being flagged by the NPDB for ostensible “unprofes- sional behavior” is a permanent blemish on a physician’s profile and can have sig- nificant career-long consequences.

Notwithstanding, few physicians recog- nize the building blocks of a reportable ad-

verse action in the making. Though most recognize that a 30-day suspension is a significant disciplinary event that war- rants legal evaluation and action, many do not realize that such a disciplinary event is commonly the final step of a se- ries of smaller adverse events, which the physician has left unchallenged on the as- sumption that they were minor in nature.

These seemingly minor adverse events are often actions that do not have any semblance of formality and that do not trigger fair hearing rights; hence, they are go unaddressed by the physician. These seemingly minor adverse events range from written complaints about the physi- cian’s conduct, even if only authored by a peer, rather than a department chair, to formal letters of reprimand.

Further, they include any other state- ments that are critical of the physician’s demeanor and that are preserved in a writ- ten record (such as in departmental min- utes). Over time, these seemingly minor adverse events can easily paper up, with infractions, a physician’s record and cre- dentialing file, making it significantly more difficult to ultimately defeat a reportable disciplinary event that builds on them.

Accordingly, once any such “minor” ad- verse event is identified, it is imperative for physicians to develop and implement a meaningful plan of action that effectively addresses the situation, rather than wait for additional adverse events to take place.

Because it is safe to assume that the circumstances and environment in which the adverse event or events have taken place are complex and laden with con- flicting interests and agendas (personal, political and financial), physicians are well-advised to consult legal counsel com- petent in hospital/physician relations in connection with the development of an appropriate plan of action that will ulti- mately avert a reportable event.