Should doctors and nurses be subject to different penalties for
precisely the same infraction? Of course not. Are they? Sure. Just ask
Britney Spears.Britney was hospitalized at UCLA at least
twice in the past few years –
once when she gave birth to her first son in 2005, and again in early
2008 for psychiatric care. Both times, dozens of UCLA staff members
peeked at her medical records, despite having no clinical reason to do
This voyeurism, of course, is hard wired into our DNA, and
we aren’t about to purge our inner paparazzis any time soon. But even
celebs have a right to keep their medical records private. Although the
Health Insurance Portability and Accountability Act
(HIPAA) has caused some real mischief, one of its beneficial effects is
that it put the issue of medical record snooping on our radar screen.
Whether the victim is a Hollywood starlet or your next-door neighbor,
it is just plain wrong.
Most organizations have hired HIPAA
police and done extensive HIPAA training with their staff.
Nevertheless, all the UCLA snoops were documented to have passed an
on-line HIPAA tutorial. When Britney hit the door, Inquiring People
just wanted to know.
Lest you think this is a UCLA thing, we had
a similar situation (with another famous actress) a few years ago, as
have dozens of other hospitals. In fact, human nature being what it is,
I can’t imagine this not happening – unless the rules are clear, widely disseminated, and strictly enforced.
That means for everybody. As Charlie Ornstein reported last week in the LA Times,
of the 53 people caught snooping, 18 of the non-doctors resigned,
retired, or were dismissed, while no physicians left the staff. David
Feinberg, UCLA’s chief exec, correctly noted that, “historically,
doctors have been treated in a way that may be more lenient than
Well, yes. But why?
always hired nurses, respiratory therapists, pharmacists, and other
staff, paid them a salary, and established an employer-employee
relationship. Such relationships are governed by strict rules, overseen
by a Human Resources department.
On the other hand, relatively
few hospitals have hired physicians, at least in the past. Instead,
docs were usually in private practice, using the hospital as their
hobby-shop – in doing so, “bringing in the business” that kept the
enterprise afloat. This meant that hospitals needed to play nice-nice
with physicians, since the latter could always threaten to take their
business (sometimes known as "patients") elsewhere if they weren’t
treated with kid gloves. In fact, many old-time CEOs have told me that
a decent chunk of their schooling was in “how to keep the doctors
happy.” This is not a mantra that leads to the development and
enforcement of standards of behavior.
On top of this
organizational framework is medicine’s posture as a self-governing
profession – which led to the system of peer review. Whatever its
merits (and there are some – medicine is sufficiently complex that, for
many clinical decisions only another expert can reasonably judge the
conduct of a colleague), the peer review structure also meant that
discipline could only be meted out by a colleague – who, naturally, was
reluctant to be too harsh.
These forces quite logically led
hospitals to develop two parallel systems of governance, rules, and
enforcement: one for physicians, and another for everybody else. For
the staff, rules fell under an employee-employer framework,
transgressions were handled by HR (often in the context of negotiated
ground rules, sometimes involving unions), and punishment was
frequently swift and merciless. For docs, the rules (such as they were)
were fluid, enforcement was negotiated through the peer review process,
and decisions were made in the context of the organization’s strong
desire to remain “doctor-friendly.” The result is UCLA’s present
pickle, and many other similar situations.
If this seems wrong
to you, you’ll be pleased to learn that it is changing, for several
reasons. First, the nursing shortage has made it clear that nurses
really are very valuable – perhaps not as valuable as the rock-star
neurosurgeon, but valuable nonetheless. Second, more and more doctors
are being hired by their hospitals, or receive significant support
payments – creating a new environment of accountability that is less
benign than a system in which one is judged by golfing buddies through
the process of peer review. Third, and perhaps most importantly, the
patient safety and privacy movements have created the need for a
uniform set of standards that are not particularly clinically nuanced.
It doesn’t take a jury of one’s peers to understand that peeking into a
celebrity chart is wrong, nor to determine that the caregiver who
refuses to wash his or her hands before seeing patients needs to be
disciplined. It is just common sense.
This issue is particularly
important in patient safety, since all of us are trying to establish a
“safe culture.” One key element of such a culture is that there be “no
blame” for honest mistakes made by competent providers. Yet in
organization after organization, the CEO’s cheerleading for a no blame
culture is undermined (in a nanosecond) when front line staff members
realize that there are different rules for doctors and nurses. (Yes, I
know that we physicians have our own cross to bear in the form of the
medical malpractice system, but it generally addresses – poorly – a
different set of problems.)
Moving forward, we continue to need
peer review for clinical decisions, since it really does take an expert
to figure out whether a decision to anticoagulate or to operate was
clinically appropriate. But for violations of unambiguous rules and
policies (remembering that some rules and policies are dumb and need to
be broken in the name of efficiency or safety, a process known as a workaround),
there is no reason that the standards for physicians and other staff
should be different. If, as organizations consider the implications of
uniform enforcement, it looks like the physician staff will be rapidly
depleted, then perhaps the enforcement policies for the other staff
were too harsh and should be softened a bit. Both the goose and the
gander need to be treated appropriately and fairly.
In the end,
providing high quality, safe, and patient-centered care must be a team
sport. We’ll never get there if team members are playing under
different sets of rules.