Call Today 201-656-4324
191 Doctors, 191 Palisade Ave. Jersey City, NJ 07306-1112

The Dilemma of Physician Disability


"Are you able to exercise the privileges which you have requested in a manner consistent with patient safety and quality care?" We have all signed that statement in the affirmative, as we apply for hospital privileges, initially or on renewal. To indicate the negative would court refusal, Americans with Disability Act (ADA) notwithstanding. The statement is included in the application process to satisfy the standards of the Joint Commission on Accreditation of Health Care Organizations, but as a practical matter, what does it mean? Its total subjectivity begs the question of the absence of quantifiable measures of physician performance as a guide to the granting of hospital privileges.

Are there specific measures which can be applied in advance in assessing the privilege request? Set aside the provisions of the ADA which precludes exploration of this matter before an offer of membership is made. Once

evidence of their professional decline as a consequence of changes in physical or mental capacity.

So much for theory. We all agree that the blind radiologist can no longer read films. There is less agreement regarding the deaf psychiatrist working in a Freudian setting. Humor aside, at present there is no mandated level of vision or hearing for physicians, such as might be required for an airline pilot. We recognize that the hemiplegic surgeon, whose cutting hand is paralyzed can no longer operate. We are less able to utilize psychometric and other tests to judge whether the surgeon's capacity to integrate sensory data into an appropriate motor response has been impaired, where there may be no gross motor loss. Even if those measurements are made, there are no standards that define the safe level of performance. We are even less accurate

Once made, and accepted, the offering facility is obligated to make a judgement regarding clinical privileges based upon skill, training, experience and current practice. Included in that is current capacity.

made, and accepted, the offering facility is obligated to make a judgement regarding clinical privileges based upon skill, training, experience and current practice. Included in that is current capacity. Many medical staff bylaws appropriately provide that the medical staff is free to seek information regarding applicant health relevant to requested privileges. Proctoring of performance and limitation of privileges, if justified, are also required.

Current interpretation holds that the ADA applies only to new applicants to the medical staff. Renewals of privileges can be evaluated based upon documented performance and predicted capacity, including the evaluation by appropriate medical examination. Theoretically, as we observe the performance of medical staff members, we should be able to detect with some accuracy when considering compounding factors of the repetitive stress of clinical problems in a busy day, fatigue, medication and comorbidity.

Managed care makes these matters even more complex. In our opening quotation from a medical staff application, there was no mention of efficiency. Yet physicians working in highly structured systems report that the inability to maintain a schedule is a potential cause for "deselection." Current delivery systems which allow only limited amounts of time with patients (six to ten minutes) place a high value on speed in the clinical transaction. Independent physicians, especially those whose patients are capitated, are also under pressure to increase productivity. Traditionally, the small business man tends to work even when ill; this tendency is probably exaggerated in physicians.

Administrators of managed care programs are reluctant to risk loss of productivity by signing up physicians with a history of disability. For examples, the physician in recovery from substance abuse, despite a long uninterrupted history of sobriety, may be rejected or simply not offered a chance to apply. HIV positivity and malignancy may be other reasons for "deselection," especially when contracting physicians may be denied renewal without cause or appeal.

Workers with the disabled have long known that capacity to perform is a function of both organic loss and will to overcome. The Social Security Administration differentiates between medical impairment, the alteration of health status as a consequence of illness or injury and disability and the capacity to perform essential functions. Medical impairment is evaluated by clinical examination; disability, by measurement of the ability to perform specific tasks related to occupation or other activities of daily living. Report cards, physician performance profiles, variance from benchmarks or norms - part of the coming world of quality assessment and improvement - will bring to medical staffs and managed care organizations some rough quantification of individual physician capacity. These, if perfected, will be fairer and more reliable measures of the capacity of physicians to exercise clinical privileges. To date, they are only marginally useful in predicting knowledge-based deficiencies. Their value in identifying potentially disabled physicians will depend on the implementation of a program of health and function evaluation whenever a physician falls below a specific performance level. Only recently have medical staffs employed well being committees to assist in the evaluation of the health status of physicians who have demonstrated some clinical performance decline.

Advocates of evaluation prior to disability or performance failure emphasize gross tests such as random mandatory drug screening for physicians; mandatory HIV testing for surgeons; obligatory culturing of the nasopharynx for operating room workers; hepatitis antigen testing in nephrologists. These are based on the presumption that the presence of positivity poses a risk to patients and other professionals. That risk warrants the testing, in the minds of some, even if there is no physician disability. Examination of physicians is more clearly warranted if the physician has a prior history of disability or illness. For example, medical staff bylaws may contain the provision that any physician who has had a leave of absence for more than thirty or sixty days for reasons of health, must undergo examination before clinical privileges are restored.

Obligating examination is one thing; what's evaluated? The typical medical examination does not dwell on function or performance. Rather, it looks for diagnoses and evidence of altered physiology. It would be useful to come up with a battery of measures, not unlike those used by physicians who specialize in disability rating, as a predictor to guide privilege allocation. Simple industrial measures are not likely to suffice except in specific instances. In the illustrations provided above, a sight-deprived psychiatrist and a deaf radiologist may not be disabled at all, from the standpoint of specialty privileges. Ergonometric measures may be relevant to orthopedists; dermatologists lift very little. Mobility may be limiting on first consideration, but appliances and worksite modification have been shown to extend useful capacity substantially.

The ability to learn is key to all medical practice; likely one will see a proliferation of specialty recertification requirements for the renewal of specialty privileges. Physicians who fail to achieve recertification will likely first lose managed care contracts. With litigation, some may lose departmental hospital consultant privileges. Failure to pass a specialty recertification examination, at this point, is not reportable to the National Practitioner Data Bank and/or to licensure boards. Physicians may then be pushed by failure to pass the recertification examination into independent, outpatient specialty or primary care practice, for as long as there is a market for their services. One could make the argument that a specialist who was certified, who then lost certification by virtue of failure to pass the examination had presumptive evidence of a learning or memory disorder, if not more severe necrologic impairment. Should failure to achieve recertification be grounds for evaluation of fitness to practice any specialty?

The decline in functional capacity with age provides another conundrum for disability evaluators. With the decline is usually a reduction in clinical risk taking and work load. If disability is task and function related, rather than health dependent, one can slow down substantially and still not be disabled. A dermatologist in an office practice, with good vision, may continue a productive practice. An emergency physician or trauma surgeon with same degree of medical impairment may be totally disabled for the specialty. The elderly physician who fails to recognize the need to reduce work load and risk may be exhibiting yet a different kind of impairment, namely judgement, one more likely associated with disability.

The purpose of this brief piece was to highlight the problems of the relationship between disability evaluation and clinical privileges. Perhaps every medical staff should have access to the equivalent of an Agreed Medical Examiner to help in the adjudication of individual privileges disputes. On the positive side, the American Medical Association has recognized the importance of that recognition will come protocols and, perhaps, even clinical tools to assist medical staffs in appropriately recognizing the distinction between medical impairment and functional clinical disability.

Back | Home