Dealing with Disruptive or Impaired PractitionersDealing with Disruptive or Impaired Practitioners

Sponsored by Professional Renewal Center; co-sponsored by the Healthcare Liability and Litigation, Labor and

Employment, and Physician Organizations Practice Groups

Thursday, January 28, 2010 Thursday, January 28, 2010 1:00-2:30 pm Eastern 1:00-2:30 pm Eastern

Presenter: Christopher T. Terrell, Esquire

Associate General CounselHealthSouth Corporation

Birmingham, ALchris.terrell@healthsouth.com

The views expressed in this presentation are those of the author and are not purported to reflect those of HealthSouth Corporation.

Introduction: A Medical Staff Issue?

Disabilities at issue

Americans with Disabilities Act

Rehabilitation Act

Independent contractor vs. employee

2

3

Is the Independent Contractor Defense Dead on Arrival?

Menkowitz v. Pottstown Memorial Medical Ctr., 154 F.3d 113 (3d Cir. 1998)

Clackamas v. Gastroenterology Assocs., P.C., 538 U.S. 440 (2003)

Salamon v. Our Lady of Victory Hospital, 514 F3d 217 (2d Cir. 2008)

Fleming v. Yuma Regional Med. Ctr., 587 F.3d 938 (9th Cir. 2009)

Menkowitz: Facts

Orthopedic surgeon on staff at Pottstown Memorial Hospital

Diagnosed with attention deficit disorder

Physician accused of various rules infractions

Hospital suspended physician’s privileges

4

Menkowitz: Holding

Physician was disabled and could assert a claim under Title III of the ADA

Physician could assert a claim under the Rehabilitation Act

5

Clackamas: Facts

Medical clinic in Oregon Employed bookkeeper who sued clinic for

disability discrimination Number of employees?

6

Clackamas: Holding

Common-law element of control principal guidepost

Applied six-factor EEOC test “The employer can hire and fire employees, can

assign tasks to employees and supervise their performance, and can decide how the profits and loses of the business are to be distributed.”

7

Salamon: Facts Board-certified gastroenterologist

Nine years on staff at hospital

Performance was subject to review and oversight

8

Salamon: Holding

Second Circuit focused on the first Darden factor (i.e. manner and means)

What the hospital called “quality assurance standards” actually dictated the details of the plaintiff’s medical practice

9

Fleming: Facts

Anesthesiologist suffered from sickle cell anemia

Applied for position at Yuma Reg. Med. Ctr.

Upon learning of Fleming’s sickle cell anemia, hospital informed him that it could not accommodate him

10

Fleming: Holding

Section 504 of the Rehabilitation Act is not limited to employers and employees, as defined in Title I of the ADA, but rather applies to independent contractors and the entities that hire them

11

12

The Rehabilitation Act

What is the Rehabilitation Act?

How it differs from ADA

Impact on Hospitals and Physicians?

When Does it Apply?

13

The Americans with Disabilities Act

What is the ADA?

Title I and Title III

ADAAA

14

The ADA: Basic Definitions

“Disability”

“Qualified Individual”

“Regard As”

“Episodic” Impairments

15

The ADA: Mental Impairments

Definition

When is a mental impairment a disability under the ADA?

16

Bad Behavior

Traits or behaviors are not, in themselves, impairments

Not all impairments substantially limit a MLA

Not all substantial limitations on a MLA are disabilities

17

Living & Working with Psychiatric Disabilities

Requests for accommodations (No “magic words”)

Accommodations to consider

Addressing performance issues fairly

Step 1: Determining Whether an Employee Requires Accommodation

Employee Disclosure

Disability-Related Information Accessible to Employers

Documentation from a Qualified Professional

What if the Disability is Readily Apparent?

Step 2: What Accommodation is Reasonable, Effective, & Appropriate?

Know the Essential Job Functions and Requirements

The Interactive Process

20

When Corrective Action Is Necessary

Be fair

Don’t let a problem fester

Evaluation based on facts

Written documentation

Progressive discipline

21

Medical Evaluations

Ask why—actual job performance is best evidence

Fitness for duty

Be prepared for doc’s doc’s opinion

Confidentiality

22

Common Mistakes Stereotypes Inconsistency Not engaging in interactive process Lowering standards Lost-referral-itis “Doctors-will-be-doctors Syndrome” Rush to judgment

23

In Sum….

Avoid preconceived notions

Focus on the facts and behavior

Understand the disability—don’t play “doctor”

24

Illegal Use of Drugs & Alcohol

Past use & treatment is protected

Current use is not protected

Violation to act based on perception of drug use or alcohol dependency

Drug testing is still permitted

25

Family Medical Leave Act

Mental illness can be a serious health condition under FMLA

Continuing treatment

Intermittent/reduced leave

26

What Is a Serious Health Condition?

Illness, injury, or impairment, or Physician or mental condition That involves inpatient care or Continuing treatment by a healthcare provider

27

Continuing Treatment

Incapacity and treatment Regimen of continuing treatment under

supervision of a healthcare provider Pregnancy or prenatal care Chronic conditions Permanent or long-term conditions Conditions requiring multiple treatments

28

Intermittent/Reduced Leave

Medical need for leave and

Must be best accommodated through intermittent leave schedule

Reasonable effort to schedule treatment so as not to disrupt unduly employer’s operations

Conclusion: Putting It All Together

Does the ADA or Rehab Act apply? Is the cause of the disruptive behavior or

impairment a disability? Can the disability be accommodated?

FactsCommunication

FMLA?

29

Dealing with Disruptive or Impaired Practitioners © 2010 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United States of America.

Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association.

“This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought”—from a declaration of the American Bar Association