Nearly all private practices and hospital groups employ or know of a particular physician on staff who is the self-appointed “high-risk” surgeon. This surgeon is generally willing to take on the operations that everyone else shies away from, which can be an admirable character trait, particularly from the patient’s perspective—the surgeon is willing to help a patient when seemingly no one else will. This particular surgeon tends to be bold, super-confident, and someone held in high regard in the community. Based on years of working with these individuals, we have observed that high-risk surgeons tend to be high-volume, high-revenue producing, and can be perceived as indispensable to the group.
But by the very nature of their role, high-risk surgeons generally receive more complaints and legal actions than the other surgeons in the practice. Sometimes these complaints are the result of doing difficult and complex operations with the highest competence and attention, and sometimes the surgeon may not be as proficient as he or she perhaps should be. In many ways, the practice is better served if leadership would dramatically alter this physician’s practice and behavior. But confronting the high-risk surgeon often is complicated precisely because this surgeon likely is a high-volume, revenue-generating partner with a big reputation. When the leader of the group first considers this idea, it may seem unwise. But perhaps, while evaluating the surgeon’s practice, leadership finds that this surgeon is not as attentive or capable in the cases that he or she is performing. This is a red flag. When the group comprehends the potential liability associated with the surgeon’s behavior, the new perception of the surgeon’s practice and the need for change becomes apparent.
Leadership can hedge by going through the facts of each complaint on a case-by-case basis, but in our experience, the high-risk surgeon often will rationalize every misstep or state that the unfortunate result is a known complication of a challenging operation that everyone involved knew was fraught. Rather than dig deeper, leadership often will take this at face value—a path of far-less resistance—and in so doing, expose future patients to hazard, and also jeopardize the future of the private practice.
How should private-practice leaders manage the high-risk surgeon, and how should they handle the inevitable complaints and lawsuits that arise from this surgeon taking on complicated surgical procedures? We’ve synthesized a few suggestions based on our own experiences as past co-President (DWL) and General Counsel/Director of Risk Management (JTH) of one of the largest orthopaedic practices in the country.
Identify a High-risk Surgeon
Identifying someone as a high-risk surgeon generally is simple. By definition, this surgeon will be the one with patient complaint volumes several standard deviations above the mean of the practice. He or she also will have more lawsuits than everyone else. Ideally, we might educate the surgeon concerning his or her risky behaviors and move on to more-definitive measures. We’d all win if the surgeon would listen and change. But although some surgeons do have introspective moments and improve their practices, others do not. So, once this risky surgeon is identified, how should private practice leadership proceed? There are several stages that a practice needs to consider when confronting this issue.
Obtain Unity among Practice’s Leadership
First, the ironclad facts of the entire situation must be made clear. As stated previously, the risky surgeon will have an answer for everything, and a distinct listing of the relevant facts and cases will force the conversation to stay on point. After this, the practice’s board and executive leadership must be united in their agreement with the need for the physician to change. If there is lack of unity, the perception of the intervention can be turned into a conspiratorial witch-hunt against the risky surgeon, and future efforts to decrease risk and increase safety will be substantially hampered. At times, an outside review of the case may be necessary to validate the seriousness of the circumstances. We have asked very well-known surgeons from well outside of our geographic area to review the charts in a blinded manner. Be sure to explicitly state that this review is completely done in peer-review, and it may be wise to consult your attorney beforehand to ensure that this review cannot be used against your group.
Obtaining unity in purpose before proceeding is crucial. Unless the leadership is united in the effort to improve this physician’s practice, unprepared efforts may well lead to the risky surgeon actually being vindicated in his or her behavior. After identifying the surgeon and obtaining unity on the goals, which are to see if you can improve his/her behavior, the ultimate result is up to the surgeon. It is imperative to clearly state that if they are not willing to improve, the Board is highly likely to separate them from the company.
Provide Clear Feedback
After the practice’s board has agreed that the surgeon must change his or her behavior, the appropriate physician leaders should meet with the surgeon. The goal in this meeting is to give the risky surgeon specific insights into his or her behavior, and offer techniques to improve. We recommend involving two physicians from the practice in this conversation, so that they can support the effort, keep the conversation on track, and more importantly act as corroborating witnesses should disputes about the meeting arise. Keep the meeting small—too many physicians at this initial meeting may confuse the matter and appear as bullying the risky surgeon. This meeting should be friendly but formal, and appropriate documentation with follow-up should be performed. The surgeon should be collegially encouraged, but the consequences of failure to improve must be clear. Educational resources, mentoring, case review, and periodic follow-up are all appropriate interventions at this stage.
In our experience, surgeons usually improve at this point, and some even improve their risk profile permanently. In my (DWL) role as co-president of our large practice, some of the most gratifying memories I have are of helping a few risky surgeons improve their practice and save their reputation and career. Unfortunately, there are some who revert into their former behaviors, and the group’s leadership must handle this head-on. The regression of a surgeon’s performance cannot be quickly detected unless leadership is attentive and monitoring the process. If the leadership ignores the issue after the first intervention, they are partially to blame for the subsequent troubles that may occur should surgeon fall back to old habits.
Bring Them to the Board
What should leadership do if the high-risk surgeon does not stay on the improved path and reverts back to his or her high-risk practices? We have found that in this instance, it;s best for the practice’s board to intervene directly, and aggressively, perhaps by bringing the individual in question in front of the entire group for a frank conversation. I (DWL) personally was extremely proud to see our board perform this function, and almost every physician who underwent this process achieved permanent improvement and risk-reduction in their practice. The practice board is prepped with the relevant facts and the desired outcome of the intervention. The risky surgeon is brought into the board meeting to explain why he or she has been unable to make meaningful improvements in terms of managing surgical risk. After the individual is given the opportunity to speak, the Board members explain, one by one, their disappointment in the physician and the impact of the provider’s risky behavior on the practice. This is a very direct and uncomfortable interdiction that communicates the gravity of the situation, one that conveys the end of a period of tolerance of the provider’s noncompliance, while still communicating the practice’s desire to see the physician succeed. This intervention is very uncomfortable for the risky surgeon, but it has saved many careers.
Occasionally, we have moved a risky surgeon into his or her own risk pool and off of our corporate medical liability program. This product is always more expensive than the product that insures the entire practice, and it appropriately allocates this expense to the risky surgeon.
Terminating the High-risk Surgeon
In our experience, most high-risk surgeons improve their performance, and many go on to flourish after enduring one of the aforementioned interventions. Unfortunately, there are those cases where the practice has done everything it can to help the surgeon, but to no avail. It is at this point that the practice’s leadership must engage in the anguished task of determining whether it is necessary to cut ties with the surgeon. The decision to terminate an employee is never an easy one. However, terminating a highly specialized physician can involve unique challenges and issues that the practice must address to ensure the separation goes as smoothly as possible.
Once the decision has been made to terminate the surgeon, we recommend compiling all records and documentation to support the decision, including patient complaints, statements by coworkers, peer-review findings, and steps the practice has taken in attempting to rehabilitate the risky surgeon. The objective is to show the surgeon’s pattern of risky behavior, the practice’s desire to see him or her change and succeed, their failure to change and succeed, and the practice’s compliance with its own policies and the surgeon’s employment contract.
The Provider Agreement
Before terminating the surgeon, review his or her employment contract or partnership agreement. Without a sound, thoughtfully-crafted contract, the practice is likely to find itself on the receiving end of a wrongful termination lawsuit. A lawsuit brought by a high-level employee can be catastrophic to the practice, both financially and to team morale.
Generally, the provider agreement controls the terms and conditions of the surgeon’s employment, including circumstances justifying termination. A provider agreement should clearly set the practice’s expectations in writing and make them legally binding. If the surgeon’s actions violate terms of the agreement, it should come as no surprise that his or her employment/partnership may be in jeopardy.
Most provider contracts have two termination clauses: “for cause” and “without cause.” A “for cause” termination is when the practice terminates the surgeon for violation of a policy or some other misconduct. Often, the contract will list various actions that may result in a “for cause” termination. To minimize the chances of a termination dispute, the practice should draft this list broadly, and consider using a catch-all clause to encompass unforeseeable risky behavior: “Practice may terminate this agreement for cause if Physician engages in any other act that is materially harmful to Practice or Practice’s patients, as determined by Practice’s Board of Directors.”
Alternatively, a “without cause” termination is a termination for any legal, nondiscriminatory reason. Most provider contracts require a 30 to 120-day notice for a “without cause” termination. Some contracts also provide for payment of severance and/or benefits during the notice period. Lastly, if the surgeon’s compensation is based on productivity, the contract should delineate how this will be covered during the notice period.
Transitioning Patient Care
Perhaps the most important aspect with a physician/practice separation, is ensuring the surgeon’s patients are provided with adequate notice of the departure, and appropriate continuity of care. Whether the terminated surgeon’s patients (and his or her records) belong to the practice or to the surgeon, depends largely on the language of the provider contract. However, without adequate notification to patients, both the practice and the surgeon are at risk in the event of a patient abandonment claim. Although it can vary by state, patient abandonment is generally defined as the termination of a provider/patient relationship without reasonable notice and without an opportunity for the patient to acquire adequate medical care elsewhere . Thus, it behooves all parties to collaborate in the patient transition process.
To minimize risk of a patient abandonment claim, the practice should call patients with scheduled appointments, or those who need to schedule an appointment, and offer them continued treatment with another qualified surgeon at the same location. If a patient wishes to transfer their care elsewhere, offer to forward their medical records to the new provider.
Managing a high-risk surgeon is not an easy task, and terminating the individual is even more difficult. Yet, it can be necessary to protect the interests of the practice and its patients. To reduce further risk to the practice in the termination process, it is prudent to be transparent with the surgeon and practice leadership, to document everything, to follow the terms of the provider agreement, and to ensure patients receive proper continuity of care.