Physician-hospital relationship unique, complex

By Staff

Toronto health lawyer Kate Dewhirst says it's important for hospitals to provide regular training for medical leadership on the administrative issues around physician privileges because of the unique and somewhat complex professional relationship that exists between hospitals and doctors.

"Most physicians aren't employees and they aren't exactly like independent contractors either; they have a relationship with the hospital through privileges and in many jurisdictions that is regulated by a law," she says. "We have the Public Hospitals Act in Ontario and the regulations associated with it, which explains that physicians have to apply every year to hold privileges."

Among other things, physician privileges deal with their right to provide medical services in a hospital setting.

Dewhirst, principal at Kate Dewhirst Health Law, says hospital department heads and the rest of the medical leadership need to understand the legal environment in which they are working. One of the challenges is that often these professionals are busy with their own patients and it can be difficult to find the time to deal with this type of administrative oversight of physicians.

That underscores the importance of hospitals to provide the necessary skills and resources to do this administrative side of their role, she says.

"The issue of physician privileges and the relationship between hospitals and doctors is an ongoing, ever-present issue for hospitals to manage," she says.

When hospitals provide this training, they are able to save money to avoid potentially costly issues that may arise out of physician privileges, says Dewhirst.

With privileges, come a whole set of rights and rules, which includes the statutory right to a hearing before the hospital board for a physician who has had his/her privileges suspended, reduced or revoked.

And if medical leaders don't follow due process – even if they are correct on the facts – problems can arise, says Dewhirst.

Matters around physician privileges can also end up in court.

The relationship between hospitals and physicians is generally quite different from the one between hospitals and nurses, who are most often employees.

For example, terminating the employment of a nurse is generally managed by collective agreements and labour laws, but it's much more complicated to terminate a physician, says Dewhirst.

"If you're going to reduce or revoke a physician's hospital privileges, there's a bundle of rights attached to that physician that wouldn't apply to the nurse," she explains. "The physician has a right to a process that is set out under the Public Hospitals Act. That's the fundamental difference."

Even if the physician is an employee of the hospital, the Public Hospitals Act overlay still applies that allows them a hearing before the board of the hospital to have their issue aired, says the lawyer.

In addition to the Ontario Public Hospitals Act, there are hospital bylaws, including professional staff bylaws, that guide the relationship between physicians and hospitals.

Hospital privileges are also extended to other professionals such as dentists, midwives and nurse practitioners.

In 2013, Dewhirst wrote a tool kit for the Ontario Hospital Association to help its members manage the relationship around privileges.

To help manage those relationships effectively, she says it's important for hospitals to ensure physicians are made aware of clear expectations of their duties and that they have an effective and detailed orientation to the facility.

"When there are issues, it's important for hospitals to treat the issues and complaints seriously and to give due process to a physician who has been complained about," she says.

The idea, she adds, is for the hospital's medical leadership to set physicians up to succeed.

"That's one way of avoiding what can be costly privilege issues," she says.

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