Medical staff bylaws and employment agreements
Consider whether a performance deficiency should be handled as a medical staff issue or an employment issue. The employed physician might argue that clinical and behavioral issues should be handled through the medical staff bylaws, which guarantee extensive due process. Handling a physician performance concern as an employment issue may deprive the physician of the checks and balances available through the medical staff bylaws. On the other hand, the hospital employer may argue that they bear the financial, reputational, and vicarious liability risks of employees, and therefore should have greater ability to intervene, investigate, and address issues of poor performance. They would argue that employment agreements offer a better opportunity to achieve this goal.
Having said all this, a continuing concern might be that the health system has easy access to what the medical staff bylaws require. On the other hand, the medical staff may have no idea what the employment agreement requires. The medical staff bylaws are public documents recommended by the medical staff for approval by the governing board, but the employment agreement is a confidential document between the employer (health system) and the employee (physician). This inherent imbalance in governing documents can lead to distrust and suspicion between organized medical staff and the health system. Is the hospital just hanging someone out to dry because he or she is a nuisance? Or is the hospital just letting someone slide by when the medical staff would have taken that person to task for the performance issue?
One way to establish trust is to include complementary language in both documents that clearly identifies how things will work. For example, it is important to clearly state that every physician, employed or not, will be held to the same standards and expectations of the medical staff. The health system may set higher standards, but it cannot set lower standards. This addresses the Physician Performance Building Block model for both the medical staff and health system at the base layer of setting clear expectations. On the other hand, there also needs to be a clear understanding that, having met these minimal standards, the health system employer will have the authority and responsibility to manage the poor performance and corrective action levels of the Physician Performance Building Block model through the employment agreement and not through the bylaws. To make this understanding clear, both agreements would include statements such as the following:
In the Employment Agreement: “The employed physician shall comply with all bylaws, rules and regulations,
policies, and directives of the hospital and the medical staff.”
In the Medical Staff Bylaws: “When an employment agreement exists with the physician, the terms of
that agreement shall supersede these bylaws.”
A common example of this latter point is the language in an employment agreement concerning termination of privileges coincident with termination of the employment agreement. Does an employed physician automatically lose his or her clinical privileges if terminated through the employment agreement? This question is so common that the sidebar entitled “Employed Physicians and Medical Staff Privileges” is included as an aid to medical staff leaders.
These statements clarify that there is one set of minimum rules followed by all, but that there will be a
divergence with the employment agreement governing the employed physician.