Erik Lukens
The Bulletin

I f your doctor believed St. Charles Bend was providing inadequate patient care, should he or she be able to say so publicly? If you answered in the affirmative, you’re in for a disappointment.

The reason, ironically, is a code of conduct, which is the sort of thing that ought to reassure patients.

Members of the hospital’s medical staff must sign such a code annually in order to retain their hospital privileges. The medical staff consists of advanced-practice providers like physicians, physicians’ assistants and nurse practitioners, according to medical staff president Tim Carney. Some of them work for the hospital, and some do not.

Agreeing to abide by a code of conduct doesn’t sound like a bad thing, and for the most part it isn’t. The nine-part code requires medical staff members to refrain from sexual harassment, to complete medical records in a timely manner, to regard “responsibility to the patient as paramount” and so on.

And then there’s part five, the standing gag order.

By signing the code of conduct, a practitioner pledges “Not (to) express public derogatory comments about the quality of care being provided by other physicians, nursing personnel or the Hospital.”

This vow of silence exists uneasily, to say the least, in a document that holds up responsibility to the patient as paramount. It’s worth nothing that the St. Charles’ nursing staff is not prohibited from criticizing the quality of care at the hospital publicly. In fact, nurses did just that last year during a contract dispute.

Members of the medical staff who spot patient-care problems do have other ways to express their concerns. The hospital, Carney says, has “a very robust system for discussing quality of care issues” that operates outside of public view. This system is a partnership between the medical staff and the hospital administration, according to Jeff Absalon, St. Charles’ chief physician executive.

Absalon and Carney believe that this internal system is the best venue for airing safety concerns. And most of the time, it surely is. But if the hospital has such confidence in its internal process, why are medical staff members prohibited from criticizing the quality of care publicly?

The restriction is “meant to address people who may be speaking in frustration,” says Carney. It is “definitely not meant to be a gag order.”

But it is a gag order, and a very broadly worded one at that.

What, exactly, does it mean to “express public derogatory comments?” This term could apply to frank conversation with a patient about quality of care, and this worries Knute Buehler, a physician and former member of the hospital system board. “As a doctor,” he says, “I find it ethically and morally wrong that a corporation should insert itself between me and a patient in an honest conversation I need to have with them.”

And as a potential patient, I can’t help but wonder whether I should believe anything a member of the medical staff says about quality of care at the hospital.

This is not Buehler’s first encounter with what he calls a gag clause. He says St. Charles management and some fellow members of the hospital system board targeted him briefly in 2014 for removal from the board for completing, but refusing to sign, a conflict of interest questionnaire. He says he supported the questionnaire in principle, but objected to a clause that would have prohibited him from speaking publicly against the positions or the best interest of the hospital.

“When practicing medicine,” he wrote in an April 2014 letter to the board, “my first loyalty must be to my patient, not a health system or the policies of a CEO or board of directors.”

Besides, speaking in frustration isn’t always a bad thing, especially if the speaker has good reason to be frustrated. Say, if a physician believes that the hospital’s internal process is doing too little to ensure patient safety.

St. Charles Bend’s code of conduct places medical staff members in a strange position, which is why one of them (not Buehler, whose input I sought) brought it to my attention. Are the interests of patients paramount, as the code claims, or are those of the hospital, whose quality of care may not be criticized publicly?

The American Medical Association, which represents physicians, has given this some thought and provided guidance that casts the St. Charles Bend code of conduct in a less than flattering light. The AMA’s guidance is included in “Principles for Physician Employment,” which addresses “some of the unique challenges to professionalism and the practice of medicine arising in the face of physician employment.”

Though a “physician’s paramount responsibility is to his or her patients,” the AMA notes, a physician “also owes a duty of loyalty to his or her employer.” In the face of potentially divided loyalties, “Employed physicians who are members of the organized medical staff should be free to exercise their personal and professional judgment in voting, speaking and advocating on any matter regarding patient care interests, the profession, health care in the community, and the independent exercise of medical judgment.”

Though the AMA’s principles address employed physicians specifically, it stands to reason that medical staff members who are not employed by the hospital should be equally free to speak their minds on the subject of patient care. They have no employee-loyalty to the hospital.

I have no reason to believe that patient care at St. Charles Bend is anything short of excellent. But it bothers me as both a newspaper editor and a potential patient that the medical staff code of conduct would bar a physician concerned about hospital care from picking up a phone and speaking to a reporter. Nothing about such a gag order says responsibility to the patient is paramount.

What, you might ask, is the position of the St. Charles Health System Board on the gag order? That it’s exactly what members of the medical staff want.

So argued board Chair Dan Schuette on Wednesday. The board “fully supports the St Charles Bend Medical Staff’s discretion in creating its Code of Conduct, which is periodically reviewed and changed,” he said via email. As for the AMA’s insistence that physicians be free to exercise their independent, professional judgment in voting, speaking and so on, he reasons, “In drafting, voting on and approving its current Code of Conduct, we believe the medical staff — which includes both employed and independent providers — did just that.”

In other words, it’s them, not us.

If medical staff members abhor the very notion of criticizing quality of care at the hospital publicly, one wonders why a gag order is necessary at all. Fortunately, there is one way to test Schuette’s claim that advanced-practice providers want to be muzzled. Put the following question to the medical staff in a secret vote: “Should the St. Charles Bend code of conduct prohibit medical staff members from expressing public derogatory comments about the quality of care being provided by the hospital?”

— Erik Lukens is editor of The Bulletin.