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Physician competency complaints a complex issue

While patient safety is the number one concern when dealing with complaints around physician competence, hospital administrators must carefully weigh complex interests to avoid a host of serious repercussions, says Toronto health lawyer Kate Dewhirst.

"Hospitals must be measured and acknowledge that these kinds of complaints can have serious negative impacts on someone's reputation and ability to practise, their income and relationships with other members of the team," she tells AdvocateDaily.com. "You also have the interests of the health organization because if you have issues around a physician's competency, that reflects on the hospital and you have to balance its duty to maintain its own reputation. It's a third consideration after patient safety and the physician."

Dewhirst, principal at Kate Dewhirst Health Law, says hospitals – particularly in small communities – must also look at whether there's another physician who can continue to provide the service if the doctor facing the complaint is removed from service.

"That could also have a negative impact on patient care in that surgeries may have to be delayed and procedures and appointments may need to be rebooked," she says. 

Dewhirst says allegations of physician incompetence is one of the most complicated issues hospital managers have to deal with because it can be challenging at first to determine whether a complaint has merit.

"Sorting out whether a complaint has merit can be complicated and technical. The hospital has to sort out whether the physician is operating within an acceptable range of a standard of care practice," she says.

Dewhirst says the issue around physician competence is made more complex by the fact that doctors are, for the most part, considered independent contractors and not employees of the hospital. Their relationship is one of privileges in Ontario, as set out in the Public Hospitals Act.

"And when there is a concern about a physician's practice and it reaches a level of seriousness that involves the hospital imposing a restriction, suspension or revocation of privileges, then the Public Hospitals Act kicks in and there's a series of rights that attach to a physician in that case," she says. "As well, the hospital bylaws will kick in and there are certain actions that have to happen if you're going to restrict, suspend or revoke somebody's privileges."

Sometimes that determination can be done internally, but often it means hiring an external reviewer and, either way, the process can take time, she says.

"There is the added pressure of any delay because of the impact on all of those stakeholders," she says.

While a hospital may place an employee on paid leave until the complaint is reviewed, it's not the case with a physician, says Dewhirst.

"The physician is responsible for her practice and if there's going to be a suspension, the physician may not have any income during that period of time," she says.

Dewhirst says that while these issues don't come up frequently, she gives advice to hospitals across Ontario on managing these kinds of situations. She provides hospital administrators some general tips on how to deal with such matters.

As a first step, it's important to get all of the facts to have a clear record of what has happened in the past and for the complaint at hand. She says it's important to have all of the facts because if it's more of a longstanding issue, more serious action may be necessary, she says.

"If it's a first instance, management may have to take action that is more instructional and educational in nature," she says.

The second step is to look at the gravity of the situation.

"In cases where the complaints, if proven to be true, would put patient safety at imminent risk, then urgent action and significant steps need to be taken," she says.

Thirdly, she says it's important that hospitals are fair, responsive and take complaints seriously.

Fourthly, administrators must know the legal framework, as well as follow their responsibilities and obligations under the Public Hospitals Act, the Regulated Health Professions Act and other legislation that pertains to the situation.

"They can't just act unilaterally on a gut instinct on what they think is the right thing to do – there is a formal process that has to be followed if you are going to engage in any of these three actions: restrict, suspend or revoke privileges," says Dewhirst. "Then there's also case law that directs the rights physicians have in these circumstances."

Part of that legal responsibility is mandatory reporting to a regulatory college if they suspend, restrict or revoke privileges, she says.

And fifthly, Dewhirst says it's important for the hospital to consult with a lawyer about the circumstances.

"Once a hospital gets to that level of taking action, it really must have legal advice because it is so complex and if it's done improperly, there can be significant financial consequences in terms of litigation by the physician," she says. "There can also be other consequences to reputation and relationships."

Dewhirst pointed to the Rosenhek case, in which a judge awarded a physician about $3 million in damages.

"Hospitals should also act proportionally to the situation so even though the circumstances in which these arise can evoke emotional responses, the key for chiefs of staff who are acting is that they have to bring to bear an objective perspective and a methodology in what can be chaotic and emotional circumstances," she says.

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