Legal 123s with ByrdAdatto Tile

Legal 123s with ByrdAdatto (How to Blow Your Medical Practice)

Michael S. Byrd | 3.17.21

What happens to the doctor when what is said in the OR does not stay in the OR? In this episode, Michael and Brad share a dumpster fire story where locker room talk in the OR lead to a full blown medical board investigation.

 

Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.

 

 

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Transcript

Intro: [00:00:00] Welcome to Legal 123’s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences. Creating simplicity in three, two, one.

 

Brad: Welcome back to another episode of Legal 123’s with ByrdAdatto I’m your host Brad Adatto with my cohost Michael Byrd.

 

Michael: Thanks Brad. As a business in healthcare law firm, we have some amazing dumpster fire stories. I’ve been having a blast recording season three. Today, we’re going to examine what happens when the locker room talk in the operating room can ignite a dumpster fire on a doctor’s career.

 

Brad: So is this different than last week’s episode? We talked about private parts becoming public.

 

Michael: Well, there’s some similarities. This one is less visual and more raunchy.

 

Brad: Ah all right. Well, I swear the worst side effect of all these crazy stories we keep telling is I feel like my inner dad joke alarms keep going off and I feel like I should share some of those with the audience. [00:01:00]

 

Michael: Well, Brad, I want to paint the visual to the audience with you and your jeans and your white new balance with grass stains all over them. As you gear up, kind of using a star Wars analogy, it’s almost like the force is with you, except the force for you is really bad dad jokes. I think you’ve even been trying to rebrand them as Brad jokes, which is kind of a dad joke in of itself.

 

Brad: It is.

 

Michael: So at the risk of causing an earthquake from the cumulative cringing by our listeners, the floor is yours for a few. And Brad, just a couple Brad jokes.

 

Brad: Yes! You will not regret this, Michael. Michael, why can’t a T-Rex clap?

 

Michael: Why?

 

Brad: Cause he’s extinct. Michael, did you hear about the new book I’m reading? It’s on anti-gravity it’s impossible to put down. Nothing on that one? Come on, Michael. Three guys walk into a bar. You think the third one would see it coming. [00:02:00] Nothing? Oh man. Okay. No more. Hopefully our audience is still with us. All right. What do dad jokes, if anything, have to do with today’s story?

 

Michael: Well, I have successfully stayed quiet during all of that because I didn’t want to give the reaction I was thinking, but I do feel really known right now because now the audience has a little bit of a glimpse of what life at ByrdAdatto is like. And so the question does this have to do with today’s story? No, unless it’s a sailor telling dad jokes. We will be shifting from your G rated really bad jokes to X-rated conversations quickly as we moved to the story today.

 

Brad: All right. I’m curious. Let’s jump in today’s story.

 

Michael: Well, this is one of the few stories that started before you and I worked together.

 

Brad: So like billion years ago?

 

Michael: A really long time ago, Brad. The dumpster fire burned so long that we were still dealing with it four years [00:03:00] after it started. When you and I did start working, we got it.

 

Brad: I definitely remember jumping in on this one early on. We had just started working together and this dumpster fire was pretty going pretty well when I got in there. So tell us how did it start?

 

Michael: The entire story stemmed from a 15 minute conversation in the operating room between our client who is a surgeon and his OR team helping with the case. For purposes of this story, we will be calling our client. Dr. Sailor.

 

Brad: I think that’s a very appropriate name for him and I think for context, we should talk about the culture of operating rooms are also known in the medical community as OR’s and whether it’s shared stress or performing an operation, the sheer amount of time, they get to spend together, or the combination of the two, there’s this unique bond or culture that is formed in these OR rooms.

 

Michael: We have countless stories over the years of incidents that happened in the OR and they’re ranging. The [00:04:00] full range of surgeons who are stressed and start screaming at people and causes that kind of environment to you know, what happened here, with Dr. Sailor we’ll get into in a minute. But you know, generally the surgeons kind of tend to form a wolf pack and operate with the same anesthesiologist, the same nurses and other team members whenever possible.

 

Brad: Yeah. There’s a lot of energy in the particular OR teams. And that obviously can vary from OR room to OR room.

 

Michael: Like I mentioned, this is no different. Dr. Sailor and most of his OR team happened to be single back when this happened. Someone innocently posed a question for the room about a dream date.

 

Brad: Yeah okay this is the part where I think we can cue the forbearing music and it gets scary. And then the question that can to someone pouring, in this case, gasoline into the dumpster, and then we’re [00:05:00] waiting around for someone to throw the first match in.

 

Michael: Well, we know it was Dr. Sailor who hurled a pack of matches into the dumpster. The conversation went from flirty and fun about the dream date to raunchy real fast. This was a tight knit group and not their first naughty conversation.

 

Brad: Right? So this begs the question, if they’re still tight knit and there’s this well Wolf pack, like almost a little fraternity itself, how would this conversation ever leave the room?

 

Michael: Great question. And thankfully, this is not one of those creepy stories where the patient’s lying there conscious and hearing the whole thing. Another common dynamic is that there are routinely visitors in the OR. They can be medical device reps or hospital staff. And the visitors tend to be truly like the proverbial fly on the wall that the OR team is not often not even aware that their visitors in the room.

 

Brad: And so what happened in here?

 

Michael: Yeah, that’s what happened. I mean, [00:06:00] there was a hospital employee in the room. She heard the entire conversation, including some pretty descriptive language about what Dr. Sailor viewed as a perfect first date.

 

Brad: Ah, of course Dr. Sailor, um, that’s when I was still wasn’t there, but I do know who Dr. Sailor is and subtleness is not his specialty.

 

Michael: No. I mean, he says what he means and means what he says and when you’re having a raunchy conversation, there’s no room for interpretation. So the hospital employee was uncomfortable and decided to call the hospital harassment hotline.

 

Brad: All right. So typically an incident like this, there may be some questions or perhaps some training the hospital now will require this in this case, this physician Dr. Sailor to undertake.

 

Michael: Yeah. I mean, usually just to add onto that, I mean, there might be an inquiry or an investigation, and like you said, that the outcomes are usually [00:07:00] in the grand scheme of things, a hand slap to try to correct things. And that would have been a happy ending if that’s what had actually happened here. Dr. Sailor, in this case, a few days later received notice that his privileges at the hospital were temporarily suspended. And then before he could even kind of get his arms around that a few hours later, he received a letter terminating his role as medical director for the surgical department that he oversaw.

 

Brad: That’s crazy aggressive. Why was it so extreme in this case?

 

Michael: What we know now, or not long after that is that the hospital wanted to clean up the culture in the OR’s and was looking to make an example out of Dr. Sailor. We had a few week period right when this went down where the outcome could potentially have derailed his career and even with a good result was going to be damaging.

 

Brad: Now, this is a massive dumpster fire. Dr. Sailor, you know, maybe [00:08:00] normally his mom tried to wash his mouth out with some soap, but that didn’t happen this time. The hospital obviously sounds like they opened up some type of investigation and it seems like there may be some other ripple effects and probably we should dive in some of those legal risks, but let’s do that after the break.

 

Michael: Perfect.

 

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Brad: And welcome back to Legal 123s with ByrdAdatto. I’m your host Brad Adatto and
I’m still here with my cohost Michael Byrd. And Michael, we just heard the [00:09:00] story about Dr. Sailor using his salty language, which landed him in the middle of a massive dumpster fire here. And, what happened with the hospital?

 

Michael: One thing as we were kind of talking about this story, you and I offline started just reliving the stuff that we know about and talking just more in depth about the degree of conversation that happens in these operating rooms. One thing that I remembered at the time is that you know, Wolfpack that Dr. Sailor was in was so tight knit that Dr. Sailor was immediately just like, why this conversation? He was like, I have had a half a dozen conversations in the last month that were 10 times worse than that.

 

Brad: Yeah. And you know, both of us, we grew up in the world where our dads are both surgeons and we would hear some of the stories that would happen in [00:10:00] these rooms. And then as we grew, we heard more of the stories. We went from the jokes they heard that can be told in front of the kids to the jokes that were heard that can be told in front of adults and there’s some raunchy stuff that happens in these rooms. So it’s not just Dr. Sailor. It’s pretty strong throughout the communities.

 

Michael: Yeah. And one of the things that if you listened to all the episodes and certainly comes up every week when we’re having calls with clients, is they’re routinely like how’s everybody else getting away with this? And this is yet another example of, well, you did get away with it until you didn’t. And you don’t usually when someone turns you in.

 

Brad: Well, let’s go back to our story right now with Dr. Sailor. So what did happen?

 

Michael: So Dr. Sailor had a crazy two week period, and we can talk a little bit about that, where he learns this news, his world is turned upside down instantly. I’m on the phone with him trying to figure out what to happen. And this two week period is that he [00:11:00] has to have a hearing for his temporary suspension within two weeks. And during that time, his practice was effectively closed. Cause he was not allowed to work at the time, at the hospital.

 

Brad: Yeah. And just for context, for those who are hearing stories like this for the first time, there’s a ton of different things that happen if there’s a temporary suspension. And that we’ll talk about throughout this episode, but one of the things is that typically when a hospital or someone else, when they do decide to put someone on temporary suspension, it’s because a patient’s care is in jeopardy. So typically it’s because the person’s impaired or something else. This kind of suspension is very unusual because there’s such a big ramification for doing it. In fact, one of the issues that they’re faced with is if there is a suspension for a certain period that it’s reportable to the national practitioner data bank.

 

Michael: Yeah. And so first, for those of you who are not familiar with the national practitioner data [00:12:00] bank, it is a data bank operated by the US department of health and human services that contains medical malpractice payment and adverse action reports on all sorts of healthcare professionals. And as we’ve mentioned in other episodes, it’s like, when you were little and you’re in school and your parents would say, this would go on your permanent record. This is truly the doctor’s version of the permanent record. And I’ll just add Brad and you you’ve been through this before. I mean, the process when this started begins with, okay, you’ve got two issues to deal with. One is this temporary suspension. And so we’re looking at the bylaws and figuring out what his administrative wall rights are under the hospital bylaws for him to defend himself.

 

Brad: Right. This is every [00:13:00] single hospital have a different bylaws.

 

Michael: Yes. And there’s a lot of protection to the hospitals on what they can and can’t do in these circumstances because they’re considered a little technical quasi-governmental entities. So they have this concept called immunity. When you’re the doctor in this situation, you have to be really careful about how you fight these fights because it pretty much ends with whatever they decide. And then we have that going on, which threatens not just his career at this hospital, but the rest of his career, because you lose privileges at a hospital and good luck. When you go to your next gate, you’re never going to get the primo opportunities. And at the same time, we kind of mentioned this medical director contract. And this was a lucrative contract for Dr. [00:14:00] Sailor to be the medical director over this department in the hospital and that was terminated. And so we’re looking at is there anything that can be done there? What does life look like after that?

 

Brad: And again, this is all happening in a two week period. So you’re talking about life in the fast lane that all these things are happening. So let’s kind of help our audience move a little bit further in this one. Because a dumpster fire will continue. What did happen with the hospital?

 

Michael: So our approach, or Dr. Sailor’s approach was to come in very much hat in hand and basically to kind of explain that he learned his lesson, he’d be more respectful, all of those things. His privileges were restored and Dr. Sailor had to meet a bunch of conditions that essentially would be the training type stuff that we mentioned and going to see a [00:15:00] counselor. And they basically wanted some assurance that he was making changes to behave better in the future. Because the temporary suspension was lifted so quickly, the event was not reportable to the data bank as we just talked about. So unfortunately this was the only good news and it really was in some respects, managing the dumpster fire from spinning out of control because of the impact it could have had to his career, but make no mistake we had a dumpster fire and as we’ll talk, it burned for quite some time. He did not get his medical directorship back. This was a big blow, both professionally and economically. Dr. Sailor ended up staying with this hospital and to this day is part of the same hospital system.

 

Brad: Yeah and that’s scary, but not as bad as an outcome as we built it up to be. Except remember I joined you four years later and [00:16:00] Dr. Sailor was still dealing with the ripple effects. Let’s talk about what happens four years later.

 

Michael: Or remember we spoke about reporting issues. Every time doctors say that a renewed is malpractice has hospital privileges or applied for new privileges. He was put through the ringer over this incident.

 

Brad: Right. Even though it’s not part of the permanent record that everyone else in the world can see, is not listed with the national practitioner data bank. He still had these contractual obligations when filling out these applications saying, have you ever been suspended? So each time he had to say yes, and the concept here is to understand is you can’t unring that bell, once they suspend you. As a medical provider, it’s a big issue that a lot of hospitals don’t realize the impact that’s going to have on those docs for long-term.

 

Michael: Yeah and to that point, 4 years after the incident Dr. Sailor received a letter from the Texas medical board, they were [00:17:00] investigating him for unprofessional conduct relating to the same incident. The good news, Brad was that this was an informal investigator.

 

Brad: Michael you’re triggering me. I can hear it in your voice. We both know there’s nothing informal about these letters or these investigations. So for the audits, typically a medical board will send a letter, noting a complaint has been filed against you, the provider. This is the first step in determining if the medical board should open an investigation, but many providers see the word informal and they attempt to answer it themselves. Not realizing there’s nothing I repeat nothing informal about your response. This is your first opportunity to clearly to explain to the investigator why there’s no reason to continue and that the complaint should just go away and be dismissed on his face.

 

Michael: So here, thanks for the clarification, Brad. Continuing with our dumpster fire [00:18:00] story, the medical board decided to turn this into an investigation. The next step in the process was the informal settlement conference. They invited our client to attend this informal settlement conference in Austin. Brad, go ahead get back on your soap box.

 

Brad: I never left my soap box and I know you use the word informal twice purposely. There’s nothing again, informal about this. Licenses are on the line at this informal settlement conference. It’s really a mini trial. Again, those for not familiar with it, the medical board will have an attorney there, they will be the prosecuting attorney who’s going to try to prosecute you on these potential violations that they outlined in their investigation. And depending on your state, there’s going to either be three to five people in that room. Sometimes they’re medical doctors and other States are medical doctors and lay people and they are both the judge and jury. Once his hearing is over the panel will meet with you guys [00:19:00] outside of the room. So that could be an hour or 30 minutes and they will develop a recommendation. That recommendation can be, we’re going to dismiss all charges, We’re going to publicly admonish you, We’re going to temporarily or fully suspend you, or we’re just taking your license altogether. And you know, you’re done. Now, this panel is not actually the final word. They still have to then submit it to the full board for their approval. But those of us who’ve been in the industry long enough know 99.999% of the time, whatever this panel comes up and recommends in this Informal conference is what the medical board adopts. So there is Michael nothing informal about the settlement conference.

 

Michael: You really do like that soap box, Brad. And just to add on to that, your rights administratively, don’t end at this trial. If you have a bad outcome, the doctor can then really appeal it in the litigation and it’s, [00:20:00] I mean, you’re talking typically the worst of the worst scenarios where there’s been really bad patient care or substance abuse that the doctor’s not dealing with. So it really does in effect, make this informal settlement conference, the final outcome, almost in every case that we deal with, that’s the end of the road. And the doctor gets what they get and, and they know it’s just not worth pursuing it beyond that. Dr. Sailor ended up spending thousands of dollars preparing for this TMB hearing. Both of us flew to Austin to meet with the medical board.

 

Brad: So how did it turn out?

 

Michael: Well, thankfully Dr. Sailor was in a different place. And with the right preparation, came to the medical board with the right strategy.

 

Brad: Is that strategy guns a blazing and tell them all to stick it up their wazoos?

 

Michael: So we both have seen the litigators come to the [00:21:00] rescue on these medical board hearings and ended up getting their doctors the worst possible outcome. It was quite the opposite. The panel before the medical board wants to understand all the information and they want to see contrition by the doctor if they made a mistake. So here, our approach was to come in again, hat in hand, so to speak and talk about the fact that this happened four years ago and talk about the consequences that Dr. Sailor had already experienced. They got to live in the dumpster fire of what he had already been through. And then of course, talk about what lessons he’s learned.

 

Brad: Did this work?

 

Michael: Yes. They dismissed the case completely. It was actually a dismissal on the spot, which was a great relief. It was a minor victory in what was a nightmare of a dumpster fire story. Dr. Sailor lost a ton of time and money to have [00:22:00] this case dismissed.

 

Brad: Yeah. And that’s the crazy thing about the time and effort that they had to put into these things and all stem from this 15 minute conversation in the OR that happened years ago. So, Michael, what are some of your final takeaways for the day?

 

Michael: Well, the world’s different now too, Brad. I mean, we’re living in a compliance culture and we all know about the me too movement. If we’re going to talk in terms of business risk and compliance risk, the risk is higher now. If you find yourself in a situation where you think it’s just you and your Wolf pack, understand that this is a professional setting and there’s real consequences that can go with not being aware of your surroundings. Brad, what are your thoughts?

 

Brad: Yeah, I completely agree with that. I mean, what people think happens in the OR stays in the OR, that’s not the [00:23:00] case in situations like that. So when you’re having fun with your team, remember try to keep it, you must professional because you don’t want to open yourself up to investigations from hospitals or boards, and so, it may be in your mind, perceived as innocent, bantering back and forth, but in reality, you do have to keep your brain in check. And then as I get off my soap box here, we have been in this industry long enough and I’m just hopefully reiterating this enough because I say it every single time I talk on this subject matter. Do not believe that anything is informal about these informal letters or informal investigations. You have to take them serious. Get with your health care attorney immediately. Do not sit on these things. As medical providers, you’ve worked really, really hard to obtain your license so spend the time and money to find that right team to defend it. You know we talked about wolf packs a lot, but one of the things we did in season one was talked about, don’t try to be a lone wolf because it’s already difficult as enough as it [00:24:00] is. So don’t be embarrassed. Don’t think that this is not right reason to reach out for help.

 

Michael: I saw what you did there. You tried to squeeze in another Brad joke. Trying to tie the, Don’t be a Lone Wolf to the Wolf pack. Well done.

 

Brad: Yes. Well, Michael, that’s all the time we have for the day, but please join us for our final episode of season three, next Wednesday when we learn about when it’s too good to be true.

 

Outro: Thanks again for joining us today. And remember, if you liked this episode, please subscribe, make sure to give us a five-star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney, client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does [00:25:00] not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.

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