The Fine Print

Physicians universally worry about medical malpractice lawsuits, but they should be aware of many more legal issues. This blog will cover some of those, including sexual harassment (if you're harassed or accused), wrongful termination, retaliatory termination of employment, enforcement of noncompetition agreements, whistleblower protections under EMTALA and other statutes, National Practitioner Data Bank Reports and their impact on a physician's career, and the pitfalls of treating and prescribing for family and friends.

Monday, April 30, 2018

The #MeToo movement has done much to expose and start to remedy sexual harassment in the workplace, but details of the actual conduct that crossed the line can sometimes be sketchy. It's easy to see where the line has been crossed when a sexual assault has occurred or a job was awarded for a sexual favor, but many incidents of sexual harassment are more subtle.

Workplace flirtations and romance are a reality, but it may be difficult for some to recognize when the line between welcome flirtations and unwelcome harassment has been crossed.

The Civil Rights Act of 1964 prohibits discrimination in the workplace. Most states also have statutes patterned after that federal statute, and several cases decided by the U.S. Supreme Court have expanded the act's prohibition against sex discrimination to sexual harassment. (Meritor Savings Bank v. Vinson, 477 U.S. 57 [1986].) The Equal Employment Opportunity Commission (EEOC) is charged with investigating sexual harassment claims, and it issues regulations intended to ensure that employers comply with the law and to assist employees who feel their rights have been violated. (EEOC Notice No. N-915.050 [March 19, 1990] EEOC Compliance Manual No. 4031.)

The EEOC recognizes two types of workplace sexual harassment. Quid pro quo sexual harassment occurs when a tangible condition of employment (salary, promotion, keeping a job, etc.) is tied to a request for a sexual favor. Even without a quid pro quo, however, sexual jokes, groping, and language can rise to the level of a hostile work environment. This is the other category of workplace sexual harassment recognized by the EEOC and the federal courts. Hostile work environment cases can occur when supervisors, co-workers, or even customers humiliate or intimidate an employee with unwelcome sexual remarks or requests. Determining when the line has been crossed from mild occasional flirtations or joking to sexual harassment is a fact-dense analysis. Each case is different.

The EEOC recognizes that the act does not proscribe all conduct of a sexual nature in the workplace and that factors such as the frequency of the incidents, the severity of the conduct, and whether the conduct was physical determine whether a hostile work environment exists. (Meritor Savings Bank v. Vinson, 477 U.S. 57 [1986].)

Actual cases are the best guide to what constitutes sexual harassment. The Fifth Circuit Appellate Court held in Cuellar v. Sw Gen. Emergency Physicians that it was proper for the lower court to dismiss a sexual harassment lawsuit when the only allegation of the nurse practitioner plaintiff was that her supervising physician had harassed her by "promising to spank her if she misbehaved." (Cuellar v. Sw. Gen. Emergency Physicians, P.L.L.C. No. 15-51078 [5th Circuit 2016].)

Nurse "BE" v. Columbia Palms West Hospital is an example of a "she said, he said" case in which the jury determined the nurse plaintiff proved a hostile work environment claim. (Nurse "BE" v. Columbia Palms West Hospital, 490 F.3d 1302 [11th Cir. 2007].) A hospital-employed nurse in this case accused a pediatric neurosurgeon of harassing her with frequent calls at home after hours. The behavior allegedly culminated in an incident in which the nurse said the physician followed her into a supply room and made sexual advances that she rebuffed. She subsequently filed a sexual harassment complaint with the hospital human resources department. The HR investigator heard conflicting stories from the nurse and physician. The physician told the investigator that the supply room incident occurred in response to a long history of mutual flirting. The physician admitted to the phone calls but stated the nurse had given him her number and she frequently called him.

The hospital's HR investigator concluded that the physician and nurse were credible witnesses, but the physician was reprimanded by his employer and told that further inappropriate conduct would be cause for termination. The nurse sued the hospital for a hostile work environment and retaliation. The jury agreed that she had experienced a hostile work environment, but the appellate court held that the hospital was not liable for damages because the physician was not her supervisor and the hospital had taken reasonable steps to remedy the hostile work environment created by the physician.


Accusations of Harassment

Any credible accusation of sexual harassment must be investigated. Usually an individual from human resources will interview both sides and potential witnesses. Some physicians mistakenly believe that if the only evidence is a conflicting "he said, she said," then no adverse action can be taken against the physician. That is not the case. The investigator and subsequent reviewing leaders are free to make a determination that one party is simply more credible than the other. Such credibility determinations are subjective and usually based on demeanor, inconsistent answers, prior history, and common sense (does the person's story make sense?).

The human resources investigator will generally report to a higher-level administrator or physician leader who will ultimately make the decision about initiating an adverse action against the accused physician. (Cuellar v. Sw. Gen. Emergency Physicians; Nurse "BE" v. Columbia Palms West Hospital.)

Whether the physician is employed in a group practice or by a hospital, the employment contract will be key to determining the accused physician's rights. Some employing groups may give a physician an informal hearing with peers; other contracts may leave the employment and termination decision to the group leaders.

A physician's hospital privileges are generally protected by the right to a due process hearing before an adverse action is taken, but many physicians waive their due process rights in their employment contracts. An interventional cardiologist asked the courts to overturn a civil fine and probation imposed by the state medical board in Butt v. Iowa Board of Medicine. (Butt v. Iowa Board of Medicine, 836 N.W. 2nd. 152 [Iowa App., 2013].) After Dr. Butt's employer, Medical Associates of Clinton, reported his termination, the Iowa Board of Medicine launched a full investigation and then conducted a hearing resulting in Dr. Butt being fined $5,000 and being put on five years' probation for unprofessional conduct.

Like most sexual harassment cases, Dr. Butt's case was filled with conflicting testimonies between the accused and accusers. The allegations were that Dr. Butt had sought a romantic relationship with at least one subordinate female employee and had made threatening and unprofessional statements to another subordinate employee. One of the accusing nurses did not testify at the medical board hearing, but her allegations were brought in through the testimony of the employer's human resources supervisor who investigated the claims prior to Dr. Butt's termination. Dr. Butt submitted the results of a polygraph test that seemed to support his testimony, but the medical board ultimately found that the accusers' testimony was more credible than Dr. Butt's on at least some of the charges, and a fine and probation were imposed.

The Iowa board reported its disciplinary action to the National Practitioner Data Bank (NPDB), so every hospital staff membership for which Dr. Butt applies will receive a report of his fine and probation. Dr. Butt appealed the medical board's action to the district court and then the Court of Appeals, but the courts give great deference to the factual findings of a medical board. The Court of Appeals upheld most of the medical board's findings, but did remand for further consideration after it ruled in Dr. Butt's favor on a few legal issues.

Tshibaka v. Sernulka was brought by a cardiothoracic surgeon accused of sexual harassment by a patient care technician working in the hospital wound care clinic in 2016. (Tshibaka v. Sernulka, No. 15-1839 [4th Cir. 2016].) The physician denied the allegations, but the human resources supervisor who investigated found the allegations credible. The hospital administrator suspended Dr. Tshibaka, who was given a due process hearing by a panel of the medical staff who ruled he should not have his privileges terminated but rather should be suspended until he received a psychiatric evaluation to determine if there was a risk of ongoing sexual harassment. The hospital administrator appealed the findings of the medical staff panel to the hospital board of directors. After hearing oral arguments from both sides, the board overturned the medical staff panel, and terminated Dr. Tshibaka's privileges.

Dr. Tshibaka filed a lawsuit alleging multiple claims, including breach of contract, defamation, and racial discrimination. His lawsuit was dismissed by the federal district court, which was upheld on appeal. An important part of this ruling is the broad immunity from lawsuits hospitals enjoy under the Healthcare Quality Improvement Act of 1986. This federal statute was enacted to encourage peer review, and gives hospitals and physicians broad immunities against lawsuits brought by disciplined physicians as long as the physician was given reasonable due process. The hospital has a strong incentive to report disciplinary actions to the NPDB because failing to report will result in a three-year loss of the immunity under the act.

Physicians have to be sensitive to the growing public sentiment that sexual harassment by people in powerful positions has been ignored for too long. The pendulum is now swinging the other way. Victims of sexual harassment are finding support that didn't exist just a few years ago, and hospitals have a legal obligation to make reasonable efforts to maintain a workplace free of sexual harassment. An accused physician may be entitled to due process, but nothing precludes a hospital or medical employer from making factual determinations that the accuser is more credible than the accused. Physicians found guilty of sexual harassment may lose their jobs, hospital privileges, and even future employability. Subsequent appeals to the courts are an uphill battle because deference will be given to the finder of fact, whether that is a hospital panel or state medical board.