Date: February 14, 2024Attorney: Alex J. Keoskey

Standards of acceptable workplace behavior have changed drastically over the last several years, and the key to staying out of trouble is to remain current regarding the legal standards of civility and communication. In the hospital medical staff setting, disruptive behavior that was tolerated just ten years ago is no longer indulged by hospital leadership. For hospital-based health care professionals today, it is essential to be vigilantly self-aware concerning how co-workers perceive you. In today’s clinical health care environment, the way one speaks, discusses, leads or collaborates in a hospital setting can potentially make or break a professional career.

Health care professionals who are perceived by their colleagues to have a disagreeable demeanor may now find themselves not only subject to investigation and/or discipline by the hospital medical staff, but the subject of a referral to the state licensing board, or a civil lawsuit in which they are named as a defendant. Hospitals no longer consider risk management and compliance to be confined to the old standards of quality of care, misconduct or impairment. An angry disposition, harsh words and shouting in the clinical workplace are now considered by hospital leadership to relate to all three of those categories. Poor communication skills may be considered “disruptive” behavior and, therefore, detrimental to patient safety or to the delivery of quality patient care.

Accordingly, hospital by laws now contain language which prohibits behavior that is “harassing or intimidating to staff, colleagues, patients or their families”. Health care providers who are considered a “problem” with regard to civility and communication in the clinical sphere can be disciplined by the medical staff and, if warranted, reported to their state licensing board. This referral can potentially be accompanied by a permanent report on the National Practitioner Data Bank. 

As an example, a generation ago, medical residents involved in a two-to-six-year residency program came to expect long hours, demanding physician supervisors and occasional scolding as part of the program. The sight of supervising physicians shouting, cursing at, or belittling residents was not uncommon. Today, such behavior  can prompt hospital medical staff to exclude such physicians from the teaching of residents, a sanction unheard of a generation ago.  While young residents were often the subject of sanction or even dismissal due to their failing to live up to the standards of supervising or proctoring physicians, the reverse was a rare occurrence. Now however, complaints of medical residents relating to physician harassment or hostile demeanor are common, as is discipline against those physicians for that reason.   

Getting Along

It is almost certain that workplaces employing more than 20 people will have some civility or communication issues among the staff, however minor. Human nature dictates that not everyone will get along perfectly in any environment, as friction can inevitably occur due to the dynamic of various personality types working together in a stressful workspace.  Being uncivil does not necessarily mean that someone is aggressive, although in today’s climate, the distinction between “aggressive” or “violent” behavior and merely disruptive or uncivil behavior has been blurred considerably, as reflected in our culture.  In times of turbulence and rapid social change, professionals must constantly be reevaluating themselves relative to this new reality.

The core of civil behavior in the workplace is respect. All health care workers are at every level considered to be “professionals” no matter what their role or assignment. In that same spirit, it is also important for administrative staff and others to obey the instructions and direction of their clinical leadership. The failure of anyone within the hierarchy to fulfill their respective roles with a collaborative enterprise creates a significant source of friction within the health care community. While physicians and other high-level providers may occasionally “talk down” to staff and subordinates, lower-level staff members may also behave in an insubordinate manner, exhibiting “pushback”, second-guessing or having curt, unprofessional attitudes. This may lead to a vicious cycle of acrimony, recriminations and often, investigation and discipline. At the end of the day however, leadership by example is crucial. As John F. Kennedy once said: “Civility is not a sign of weakness”. Angry or disrespectful comments, shouting, finger-pointing and slamming objects are unacceptable behavior from any professional in the health field and are no longer tolerated for any reason.  

Workplace behavior in New Jersey is governed in part by the New Jersey Law Against Discrimination (“NJLAD”) [N.J.S.A. 10:5-1 et seq.]. The pivotal case concerning a hostile work environment under the NJLAD is Lehmann v. Toys’R’Us, Inc., 132 N.J. 587 (1993) where the New Jersey Supreme Court addressed alleged supervisor misconduct in the workplace.  The Court in Lehmann found that while not all alleged harassment is actionable under NJLAD, harassment is actionable when an employer, supervisor or co-employee harasses another employee because the victim is in a legally protected category and the work environment becomes “hostile” or “abusive”. This is mostly based upon legally protected classes such as age, gender, race, religion, ethnicity, national  origin, sexual orientation, perceived sexual orientation and disability (physical and mental). However, providers should be aware that hospital medical staff, or a state licensing board, does not have to meet this legal standard to discipline disruptive behavior in the clinical workplace.  Any health care professional considered by their co-workers and leadership to be sufficiently disruptive may be the subject of an investigation or adverse action by the hospital medical staff. The subject of the professional’s disruptive or hostile communication need not be within a particular protected legal class and the health care professional need not be a supervisor, or even a physician.   

The chances are that someone in your workplace will have a trait, peculiarity or idiosyncrasy that rubs you the wrong way. But most of the time they will also possess the training and background to perform their job. While it is important to ensure that every member of the health care team is competently and efficiently performing their duties up to expectations, it is equally important for health care providers to display a team-oriented attitude that compels staff to enjoy working with them due to their collaborative mentorship, rather than dread being around them due to their reputation as a consistently intolerable scold. Providers must understand that the behavior which was tolerated when they came on board is no longer acceptable. Please do not hesitate to contact us with any questions, or to obtain more clarification, relating to potential adverse actions based on civility or communication. Our health care regulatory, litigation and compliance teams are ready to help.

Mohamed Nabulsi

Chair, Healthcare Practice Group

Alex Keoskey

Partner, Healthcare Litigation