Court Says Behavior Contract Did Not Void Physician’s Right to Hearing

An appellate court has ruled that a hospital’s attempt to manage a staff physician’s behavior through a written agreement went too far because the physician’s summary loss of privileges could be traced back to patient care issues.

In 2008, PIH Hospital-Whittier warned a staff physician, Abdulmouti Alaama, MD, that he had to work cooperatively with doctors, nurses, and hospital staff and that he would be subject to discipline if he yelled at, verbally abused, or displayed any “physically inappropriate and unprofessional behavior” toward hospital patients or employees. Two years later, the hospital placed the family medicine physician on probation for what it called “unprofessional behavior” directed toward an anesthesiologist and nursing staff during a medical procedure.

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In the published Court of Appeal opinion, Alaama v. Presbyterian Intercommunity Hospital, Inc., things did not improve and in April 2012, Dr. Alaama signed a contract with the hospital titled “Behavioral Agreement” in which he agreed to comply with medical staff and hospital bylaws, rules, regulations, and policies. The contract contained a list of specific behavioral requirements including that he would “be readily available and exercise professional courtesy when called upon to discuss a patient’s course of treatment or medical care” and that he would not “exhibit any other inappropriate, unprofessional, abusive or harassing behavior” on the hospital premises, such as failing “to address the safety concerns or patient care needs expressed by another caregiver” or failing “to work collaboratively with other caregivers” at the hospital.

In the signed agreement, Dr. Alaama acknowledged his understanding that a failure to comply with the standards of the hospital medical staff would result in “automatic termination” of his staff privileges. The parties further agreed that any such “automatic termination shall not give rise to any substantive or procedural rights under California law” or the hospital bylaws.

An incident in 2015, however, gave rise to Dr. Alaama’s termination of staff privileges and subsequent litigation.

According to the alleged facts relied on by the Court of Appeal, a hospital patient was lying on his stomach, “profusely vomiting” with his “face changing to shades of purple” after an endoscopic procedure. Two nurses and a technician asked Dr. Alaama to move a cart where he was “documenting” on a computer so that they could move a bed into the room and turn over the patient. Dr. Alaama allegedly “responded to each request with words to the effect of, ‘No, they can wait.’” One of the nurses complained that Dr. Alaama “showed no concern” for the patient’s needs and put “himself first instead of the patient’s needs.”

The hospital medical executive committee met twice to consider the incident and at the second meeting approved a motion finding that Dr. Alaama violated the behavioral agreement and terminated his hospital privileges. Dr. Alaama filed a lawsuit alleging that the was wrongfully denied a hearing under California law and hospital bylaws.

The trial court focused on whether Dr. Alaama’s termination was for a non-medical disciplinary reason or whether the action was for a medically disciplinary cause, which would have invoked the right to a hearing under Business and Professions Code Section 809. In finding for the hospital, the lower court judge characterized the termination as arising out of “harassment” of hospital staff.

“They are accusing him of harassment,” the lower court judge explained, which was “defined under the agreement as failing to respond to a nurse’s concern about patient needs and safety. That is [it] doesn’t matter if they are right or wrong. If . . . they raise an issue and he doesn’t respond to them, that is considered harassment under the agreement. It doesn’t matter whether he actually was causing a safety issue or patient care issue.” Under this analysis, the lower court judge said Dr. Alaama was not entitled to a hearing under Section 809.

Disagreeing, the Court of Appeal began its analysis by citing California case law holding that once a hospital appoints a physician to its medical staff, the hospital may not terminate that membership “absent a hearing and other procedural prerequisites consistent with minimal due process protections.”

In weighing whether the hospital’s action was based on a “medical discipline cause of action,” the appellate court looked to Section 805 of the Business and Professions Code, which states that “'medical discipline cause or reason’ means that aspect of a [physician’s] competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care.”

The hospital argued at the appellate court that its termination did not trigger a Section 809 hearing “because of [Dr. Alaama’s] inappropriate, unprofessional, abusive, and harassing behavior toward physicians, nurses, and hospital employees in the workplace when he ‘failed to address patient care concerns expressed to him by staff’ . . . .” The hospital cited its investigator’s interview with the anesthesiologist involved in the 2015 incident, who said that Dr. Alaama’s conduct “was not detrimental to the patient’s safety because the patient was oxygenating well despite the fact that the patient was vomiting.”

In ruling that Dr. Alaama was indeed entitled to a hearing, the Court of Appeal said that “even if Dr. Alaama’s conduct in connection with the November 2015 incident was not detrimental to patient safety, it was detrimental “to the delivery of patient care” under Section 805.

“And that, under the statute, is enough.”    

 

Gordon Ownby is CAP’s General Counsel. Questions or comments related to “Case of the Month” should be directed to gownby@CAPphysicians.com.