Synergy - March/April 2014 - 12

industry feature

begin to shorten the appointment period
from two years to one year and require a
"fitness for work" evaluation, performed
by a qualified vocational professional who
is hired by the organization and reports
directly to medical staff leadership and
management. Such an evaluation is not
a physical examination by a primary
care practitioner, but rather a vocational
evaluation that compares a practitioner's
cognitive and physical evaluation to the
specific functions required of the clinical
privileges requested. Individuals qualified
to perform such evaluations may be found
through specific organizations (e.g., Physical
Assessment and Clinical Education at
the University of California, San Diego;
Colorado Physician Education Program
in Denver) or through each state's board
of registration in medicine, which has a

voluntarily and physician leaders can frame
the process in a positive and supportive
light, these types of options can significantly
extend the physician's professional career,
which is supportive of the medical staff's
values of autonomy and advocacy.
In the absence of a more proactive
approach, or where concerns have arisen
despite them, the medical staff must
consider the available options. Here, the
first step is to identify the nature of the
physician's relationship and the applicable
policies, regulations, and statutes. A
hospital's relationship with non-employed
physicians is governed by the medical
staff bylaws, rules, regulations, and
policies (collectively, bylaws). Hospitalemployed physicians are not only subject
to the bylaws, but also the parties' written

As long as the physician can see the wisdom
of working with the staff voluntarily and
physician leaders can frame the process in a
positive and supportive light, these types of
options can significantly extend the physician's
professional career.
list of qualified individuals under contract
or agreement with the licensing board to
provide such evaluations in the event of a
formal investigation. Based upon this report,
the medical staff can either recommend
the practitioner continue exercising his/her
current clinical privileges or work with the
practitioner to voluntarily modify the scope
of privileges to be consistent with his/her
practice capabilities and safe patient care.
Another strategy medical staffs employ is
to relieve physicians from night call at a
certain age (often 60-65) and recommend
the physician transition from inpatient to
outpatient privileges, where the patients are
more stable and can be cared for during
daytime hours. These two approaches are
proactive, addressing issues before they
become problems. As long as the physician
can see the wisdom of working with the staff
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SYNERGY MARCH/APRIL 2014

contract and related hospital policies.
Physicians employed by a group practice
are subject to their written employment
agreements, in addition to other potentially
relevant documents, such as the articles
of organization, operating agreement,
partnership agreement, etc.
The bylaws identify specific procedural
steps to address a physician's competence
or professional conduct. The bylaws may
require an issue with an aging physician to
be forwarded to the medical staff physician
assistance committee (PAC). The PAC
approaches the concern from the perspective
of potential impairment, i.e., a physical or
psychological condition impacting physician
performance. Once initiated, the PAC may
refer the practitioner for an independent
evaluation to assess whether there is a
medical-based cause of the performance

issue. Based on the recommendations
received, the practitioner may be referred for
treatment, additional professional education,
and/or be subject to proctoring or similar
oversight. In cases where significant issues
are identified, the physician could be asked
to voluntarily decrease his/her scope of
privileges; otherwise, the practitioner could
be subject to restriction or revocation of
his/her privileges. This process is conducted
under the peer review privilege. It may be
similar to the fitness for work evaluation
discussed previously, or go beyond it,
depending on the present circumstances.
If the physician refuses to cooperate with the
evaluation process, or if the process results in
a recommendation of limitation of privileges,
the physician is entitled to a fair hearing
under the bylaws, if appropriate policies
do not mandate a voluntary withdrawal of
membership and privileges in the case of
non-compliance. If the medical staff prevails
in that process, a report is filed with the
National Practitioner Data Bank (Data Bank).
The medical staff and the participants in the
fair hearing process are entitled to immunity
from damages under HCQIA and applicable
state law, with the exception of actions
alleging civil rights or antitrust violations.
Therefore, aging physicians whose privileges
are subject to adverse action frequently
pursue claims under several different civil
rights statutes, including the Americans
with Disabilities Act (ADA) or the Age
Discrimination in Employment Act (ADEA).
In examining these claims, the initial
threshold question is typically whether or not
the physician is an "employee" for purposes
of the ADA or the ADEA. The existence of
a written agreement between the parties, or
even their understanding of their relationship,
will not be determinative. Instead, courts
utilize a common-law agency test when
analyzing the nature of the relationship, and
while the existence/absence of a written
agreement is a consideration, the facts and
circumstances of each situation are assessed
considering the following factors:
* Hiring party's right to control the
manner and means by which the
product is accomplished
* Skill required
* Source of the instrumentalities and tools
* Location of the work
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