Organizational Responsibilities When A Physician Is Troubled

MMHA 6025-1 Week 4 Application Walden University 2015

Danielle Tate

Liability and Negligence

Liability relates to one’s legal obligation that is incurred due to damages incurred

via negligence. Negligence is defined as, “omission or commission of an act that a

reasonably prudent person would or would not perform under given circumstances. It is a

form of heedlessness or carelessness that constitutes a departure from the standard of care

generally imposed on members of society” (Pozgar, 2013). Joint and several liability

could play a part in this situation where Dr. Smith has been drinking excessively,

operating the morning after heavy drinking, and making mistakes in the OR that could or

could not be related to drinking. The hospital and physicians could be jointly liable and

this could be a case of several liability, for Dr. Smith’s actions, and other healthcare

professionals; i.e. nurses, peers and other hospital employees, if a negative outcome were

to result from his drinking. Joint liability refers to concurrent tort-feasors where each

party is independently responsible for their own part in the wrongful acts. A nurse

reported her concerns about Dr. Smith to administrators, so if the hospital administrators

fail to act, they can be held liable. Dr. Smith can be held liable for any issues that may

arise due to his drinking if it is determined that alcohol was the cause of any negative

outcomes. Nurses and other medical staff could also be liable if they have knowledge of

Dr. Smith’s unethical and potentially dangerous actions, and they do not report this

(Pozgar, 2014). Hospitals are required to protect patients from unreasonable risks. Failing

to do so can be seen as corporate negligence and the hospital can be liable for this

(Pozgar, 2013). As seen in Mduba v. Benedictine Hospital, even though Dr. Smith is not

an employee of the hospital per se, the hospital could still be liable for damages incurred

via the community-based physician with privileges at the hospital (Mduba v. Benedictine

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Hospital, 1976). . In 1965, Darling v. Charleston Community Memorial Hospital, became

a benchmark case that determined that “A hospital is responsible, in conjunction with its

medical staff, for establishing policies and procedures for monitoring the quality of

medicine practiced within the hospital” (Pozgar, 2014). The hospital would be held with

direct responsibility for Dr. Smith’s action if he was an employee of the hospital, because

then he would be under contract with the hospital. Hospitals and their staff are

responsible for building and maintain trust and integrity; “Trust must begin within the

organization between management and employees” (Pozgar, 2013).

As an administrator of the hospital proof of a negative outcome that was proven to

be caused by Dr. Smith’s drinking would be needed. The specific technical errors that

occurred in surgery would need to be researched, and staff that was present during the

surgery should be questioned. The medical staff and governing body are responsible for

the credentialing process, medical staff bylaws, and also monitoring physicians via peer

review to ensure quality of care. If unethical or suspicious behavior was reported, the

governing body could investigate and potentially limit or suspend a physician’s privileges

(Pozgar, 2014). “It is the responsibility of each organization’s governing body, and not

the legal system, to provide appropriate staffing and provide adequate supplies and

equipment for patients” (Pozgar, 2013). The governing body of a healthcare organization

is also responsible for complying with all federal, state, and local rules and regulations,

along with any Join Commission standards. They must provide a safe environment for

patients, visitors, and their staff that fosters respect, trust, integrity, and honesty (Pozgar,

2013).

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Ethics

The American College of Healthcare Executives (ACHE), created a Code of

Ethics to act as a standard of conduct for ethical behavior of healthcare workers,

healthcare organizations, and relationships. If the physician would become partner in the

cardiovascular institute, his responsibilities and ethical responsibilities would be even

greater, and his actions would need to be evaluated accordingly. “The fundamental

objectives of the healthcare management profession are to maintain or enhance the

overall quality of life, dignity and well-being of every individual needing healthcare

service and to create a more equitable, accessible, effective and efficient healthcare

system. Healthcare executives have an obligation to act in ways that will merit the trust,

confidence, and respect of healthcare professionals and the general public. Therefore,

healthcare executives should lead lives that embody an exemplary system of values and

ethics” (American College of Healthcare Executives [ACHE], 2011). These codes

include; I. The Healthcare Executive’s Responsibilities to the Profession of Healthcare

Management, II. The Healthcare Executive’s Responsibilities to Patients or Others

Served, III. The Healthcare Executive’s Responsibilities to the Organization, IV. The

Healthcare Executive’s Responsibilities to Employees, V. The Healthcare Executive’s

Responsibilities to Community and Society, and VI. The Healthcare Executive’s

Responsibility to Report Violations of the Code (ACHE, 2011). Hospitals and healthcare

staff have the ethical responsibility to maintain a high standard of care and integrity when

assisting patients and also to report any unethical behavior and address it as soon as

possible. Before firing Dr. Smith, the administrators must evaluate his actions, offer

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assistance in getting help for his mental distress and potential drinking problem, and may

even offer a leave of absence. “There are two primary sets of laws which are immediately

brought into play when discussing possible workplace protections for an alcoholic

worker: (1) Americans with Disabilities Act, (2) Family Medical Leave Act. These

federal laws, which might protect an alcoholic worker from being fired, can conflict with

the so-called at-will doctrine that allows an employer to terminate an employee for

virtually any reason. Because alcoholism can be considered a disease, an employer must

consider the circumstances of the employee and any of the above mentioned laws that can

preclude an at will termination depending on the situation… Neither federal nor state law

mentioned above protects employees who abuse alcohol while at work, or whose alcohol

abuse prevents them from performing any part of their job. If an employee abuses alcohol

while on duty, or has some necessary license or authorization (such as a driver's license)

revoked due to their drinking then an employer may terminate them without the

accommodations required by law” (Employment-Law, 2015). Having an ethics

committee and legal advice can help healthcare administrators decide if laws or ethical

principles have been violated and what to do if this occurs. “Justice can be advanced and

enacted through the development of morale agency on the part of both practitioners and

patients” (Edwards, Delaney, Townsend, & Swisher, 2011). Human Resources can also

be consulted to see what options are available.

Specific ethics regarding the consumption of alcohol, “The American Medical

Association (AMA) Code of Medical Ethics section E-8.15 entitled ‘Substance Abuse’

states that ‘It is unethical for a physician to practice medicine while under the influence

of a controlled substance, alcohol, or other chemical agents which impair the ability to

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practice medicine.’ The AMA House of Delegates has also offered a policy (H-30.960)

that ‘(1) urges that physicians engaging in patient care have no significant body content

of alcohol and (2) urges that all physicians, prior to being available for patient care,

refrain from ingesting an amount of alcohol that has the potential to cause impairment of

performance or create a ‘hangover’ effect’” (Peterman & Desbiens, 2005).

The physician took the Hippocratic Oath, which requires healthcare providers to

avoid doing harm and do what is best for the patient in the healthcare provider’s medical

opinion. Performing medicine when not of sound mind is putting the patient at undue risk

and can cause harm (Pozgar, 2013). This also violates the ethical principle of

nonmaleficence “Nonmaleficence refers to the maxim of primum non nocere, which

translates to ‘above all, do no harm’…This principle of nonmaleficence prohibits causing

of harm” (Friend, 2011).

Synthesis

Staff should be trained on alcohol and substance abuse evaluation to use clinically

for patients and also so they are aware of signs to look for in colleagues (Cohagan, 2013).

To avoid this type of negligence, administrators can ensure that all staff receive

continuous training regarding ethics, hospital protocols, Federal rules and regulations,

and all policy and procedures. “The identification of all risks and associated hazards, and

an element of reasonable control needs to be implemented, particularly in the medical

field, so as to avoid the incident of high cost clinical medical negligence.” (O’Donovan,

1997). Emphasizing the importance of ethical behavior, possible consequences for

violations, and the dangers patients can face because of it may help prevent malpractice.

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OHSA (Occupational Safety & Health Administration) recommends periodic testing to

maintain a drug and alcohol free work environment. “OSHA strongly supports measures

that contribute to a drug-free environment and reasonable programs of drug testing within

a comprehensive workplace program for certain workplace environments, such as those

involving safety-sensitive duties like operating machinery. Such programs, however,

need to also take into consideration employee rights to privacy.” (United States

Department of Labor, 1998).

References:

American College of Healthcare Executives [ACHE]. (2011, November 14). American

College of Healthcare Executives Code of Ethics. Retrieved from the ACHE website:

http://www.ache.org/abt_ache/ACHECodeofEthics-2011.pdf

Cohagan, A. (2013). Alcohol and substance abuse evaluation. Retrieved from Medscape

website: http://emedicine.medscape.com/article/805084-overview

Edwards, I., Delaney, C., Townsend, A., & Swisher, L. (2011). Moral agency as enacted

justice: A clinical and ethical decision-making framework for responding to health

inequities and social injustice. Physical Therapy, 91 (11), 1653-1663. Retrieved from:

http://search.proquest.com.ezp.waldenulibrary.org/pqcentral/docview/

904409830/3E7A49DD093441C7PQ/1?accountid=14872

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Employment-Law. (2015). Employment/Labor: Firing employees with a drinking

problem. Retrieved from the Free Advice website: http://employment-

law.freeadvice.com/employment-law/firing/firing-employee-alcoholism.htm

Friend, M. (2011). Physician-assisted suicide: death with dignity? Journal of Nursing

Law, 14 (3), 110-116. Retrieved from:

http://search.proquest.com.ezp.waldenulibrary.org/pqcentral/docview/913146489/

DEC9C4738E33459CPQ/16?accountid=14872

Mduba v. Benedictine Hospital, 52 A.D.2d 450. Appellate Division of the Supreme Court

of the State of New York, 3rd Department (1976). Retrieved from:

http://www.leagle.com/decision/197650252AD2d450_1417/MDUBA%20v.

%20BENEDICTINE%20HOSP.#

O’Donovan, M. (1997). Risk engagement and the medical profession. The Journal of

Management Development, 16 (2), 125-133. Retrieved from:

http://search.proquest.com.ezp.waldenulibrary.org/pqcentral/docview/

216356136/56864FB5344D4848PQ/11?accountid=14872

Peterman, J., & Desbiens, N. (2005). Should physicians be allowed to use alcohol while

on call? Journal of Medical Ethics, 31 (1), 21-26. Retrieved from:

http://jme.bmj.com/content/31/1/21.full

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Pozgar, G. (2013). Legal and Ethical Issues for Health Professionals (3rd Ed.).

Burlington, MA: Jones & Bartlett Learning.

Pozgar, G. (2014). Legal and Ethical Essentials of Health Care Administration (2nd Ed.).

Burlington, MA: Jones & Bartlett Learning.

United States Department of Labor. (1998). Occupational Safety & Health

Administration. Retrieved from the OSHA website:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?

p_table=INTERPRETATIONS&p_id=22577

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