The Law: Dealing With Dr. Dangerous

What should your practice do when it learns that one of its own physicians or staff may be a danger to patients? The answer probably seems obvious. After all, patient care is the first priority of any physician practice and it is fundamental to “do no harm.” So, of course, the answer must be to remove the unsafe professional.

Unfortunately, it is not always that simple. Workplace laws restrict the circumstances under which disabled employees may be terminated. Removing a physician (or other employee) who holds a partnership stake in the practice is also problematic, and most employed physicians have contracts, as do some other healthcare providers. It is therefore rarely as simple to terminate a potentially dangerous employee as it should be, notwithstanding that employment is “at will” in most states.

How should you handle an employee who appears to be suffering from an impairment that potentially compromises patient safety - especially when the signs are subtle or appear only rarely? There are many such impairments, including addictions, mental-health problems, or even some physical conditions. A diabetic, for instance, may not get a needed lunch break during a busy day. Impaired providers may present a grievous danger to patients. Yet most critical care employers are not well equipped to recognize or appropriately handle such crucial issues when they arise.

Nightmare scenario

Suppose your practice suspects that one of its partner-physicians is a substance abuser? Then, what if, when confronted, the suspected doctor discloses that he is a recovering addict who has fallen off the wagon and needs to take a week off to attend counseling as part of a rehabilitation program?

Finally, what if, while you and the rest of your colleagues are digesting all of this, you are contacted by the head of a rehabilitation program and the substance-abusing doctor’s lawyer who both want to talk about “accommodations” and who threaten a lawsuit if the physician group does not comply?

What would you do?

This very common scenario is only one of the ways that physician practices find themselves confronted with the need to deal with potentially dangerous employees. Dealing with these issues within the law requires care and sophistication. They implicate the Americans with Disabilities Act (ADA), privacy and defamation issues, and the corporate or partnership structure of the practice itself. Making the wrong moves in this context often leads to six- or seven-figure employment litigation. So how does one steer through such dangerous and turbulent waters?

The ADA

The ADA applies to and protects employees who suffer from, have a history of suffering from, or who are “regarded as” suffering from a condition or impairment that fits the legal definition of a “disability.” It prohibits employers from discriminating against or harassing such employees. It also requires employers to make “reasonable accommodations” for those individuals.

These “reasonable accommodations” may include, among other things, granting leave requests, shuffling schedules, or reassigning nonessential duties. And as important as the “reasonable accommodation” requirement itself is, just as important is the related ADA requirement that employers “engage in an interactive process” with the employee to determine the reasonableness and efficacy of the requested accommodation.

Employers who terminate rather than engage in this “interactive process” do so at their peril. The ADA is set up to punish employers who make hasty negative employment decisions in the face of requests for accommodation.

Although the ADA does not apply to current drug users, things change the moment a suspected substance abuser self-identifies as “recovering.” It is often very difficult to know for sure that a person showing signs of a drug problem actually has one. By the time such an issue is clearly identified, the accused substance abuser often becomes a “recovering” substance abuser covered by the ADA and is requesting accommodations.

So faced with this scenario, would your practice be automatically precluded from terminating the physician because the physician is “recovering”?

No. The ADA does not prohibit any employer from removing a dangerous employee from the workplace, only from making a snap decision to fire that employee when it appears that a disability may be the cause for the danger.

Even a “disabled” employee may be terminated when, despite any reasonable accommodation, the employee remains unable to perform all essential job functions. A “disabled” employee may also be terminated when, despite any reasonable accommodation, the employee would pose a “direct threat” to himself or others in the workplace.

In healthcare, this translates into determining whether and to what extent the impaired physician or other employee would present a realistic danger to patients. You can make these determinations to prevent an impaired healthcare professional from continuing employment, but the ADA significantly slows the process by imposing a specific course of action.

And the legal requirement for such an approach is not limited to dealing with a recovering substance abuser. In fact, many conditions that may threaten an employee’s ability to safely perform important procedures or administer critical care - epilepsy, narcolepsy, and sleep apnea, to name just a few - may be even more difficult to handle under the ADA than drug addiction. To make matters worse, the ADA actually prohibits employers from inquiring about these conditions unless and until either the employee requests an accommodation or it becomes very apparent that the employee poses a “direct threat” to himself or others.

Privacy and defamation

A very delicate balance must also be struck with regard to the employee’s privacy. Whether the issue causing the danger is drug addiction or some other condition, public dissemination of such information can ruin a career. Yet recent court decisions indicate that total silence can lead to financially ruinous liability if the dangerous employee goes on to cause harm elsewhere. What to do?

Not surprisingly, the ADA requires a certain level of confidentiality in the “interactive process.” Documentation that is collected about the employee’s condition and which records the employer’s deliberations on issues relating to “reasonable accommodations” and “direct threat” must be kept in separate, confidential files and not intermingled with other personnel documents.

In the case of a physician practice, HIPAA may also apply, which usually requires consent before any such information can be released. Beyond this, the natural tendency of people, even of highly trained professionals, to gossip about these issues can present a significant danger of defamation.

To minimize these dangers, it is critically important to immediately take steps to ensure internal confidentiality when dealing with a potentially dangerous employee:

1. Decide who will handle the issue. In physician practices where many shareholders or partners have an ownership interest, there is a group mentality in which many people tend to be involved in significant matters. Dealing with a “dangerous employee” by committee can have devastating consequences for the practice.

2. Establish a structured and controllable approach for getting and assessing the information for the ADA’s “interactive process,” deciding who will review it, and how decisions will be made.

3. Document the steps taken to ensure and enforce confidentiality, and to advise everyone involved of the organization’s expectation that privacy and confidentiality will be respected. Disseminate strict written reminders that confidentiality is expected and then specifically define what confidentiality means.

Yet even as you must respect an employee’s confidentiality, it is equally critical that you do not agree to anything that effectively places a “gag” on communicating truthful information about the potentially dangerous employee under appropriate circumstances. Particularly when the employee is represented by an attorney, there can be tremendous pressure to agree not to divulge to anyone the nature of the employee’s problems.

You must not to this even in the face of litigation because it can spell future disaster. Although defamation and other tort claims based on disclosure of damaging information may be difficult and expensive to defend, truth is generally a defense. Lawyers know this, so as long as both parties are willing to act reasonably and responsibly, it is usually possible to come up with a resolution of privacy and confidentiality issues which fairly and effectively balances the interests of both sides.

Partnership issues

In dealing with dangerous employees, you should evaluate information and make decisions in as clean and uncomplicated a manner as possible. Your employment decisions in such situations will always be placed under a microscope in the context of the ADA or other legal challenge.

Physician practices are often set up to allow for various forms of democratic participation in decision making. While this may work well for many purposes, multiple decision makers within the context of the ADA’s “interactive process” can lead to a messy disaster. When the decision involves terminating a partner, the practice may be compelled by its own corporate and partnership structures to utilize a complicated decision-making process. You should examine and address these structures now - before you need to confront a dangerous employee.

It is truly frightening when a close colleague or employee reveals, through words or actions, that she is impaired and may present a danger to patients. When, as is usually the case, the impairment and source of the danger may also be a disability, the overall danger to the business increases exponentially if the employer is not equipped to handle the situation consistent with the various laws that govern the workplace. Yet as painstaking as it is to correctly handle such situations, taking the time to do it right, and being properly set up to do so, can avoid both medical tragedy and financial ruin from employment liability.

Jon Zimring is a partner at Duane Morris LLP in Chicago, specializing in management-side labor and employment law. He represents employers in labor litigation and advises managers, supervisors, and human resources personnel on how to minimize litigation risks. He can be reached at jzimring@duanemorris.com or via editor@physicianspractice.com.

This article originally appeared in the October 2008 issue of Physicians Practice.