Resident Physicians and Fellows:  No, it Is Not Alright to Hug or Touch Others!  Important Lessons Regarding Boundaries in the Workplace

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
I am writing to break the news to many of you:  No, it is not appropriate to touch any of your co-workers in the workplace, nor to hug them, nor to give them back-rubs or massages, nor to pat them on the butt!  I know, breaking news, huh?
The reason that I am writing this blog is that most recently, and I am speaking about within the last two months here in September 2023, we have had calls from three different resident physicians and fellows, getting booted out of their graduate medical education (GME) programs for the unwanted touching of other residents or fellows or hospital employees.  And they were not all males.

Nothing Learned from the #MeToo Movement?

Despite all the publicity given to the #MeToo Movement, and with the television and social media full of individuals being prosecuted criminally and sued civilly, there still seem to be a large number of residents and fellows who do not understand.  No touching means no touching.  Weren’t you taught that in elementary school, I mean kindergarten, I mean pre-school, like I was?
Just because someone does not immediately jump up and slap you or punch you when you come up behind him and start giving him a “shoulder rub” or “neck massage” does not mean he has consented to it, wants it or is okay with it.  Keep your hands to yourself.

Add to the Things You Learned in Grade School That Are Still Rules to Live by.

Everyone learned many, many rules in grade school that are life’s lessons that should be remembered and observed no matter where you are, when you are or how old you are.  These include lessons such as: “Don’t lie” (granted, many politicians seem to have forgotten this lesson, but maybe prison will help them remember); and “If you take something out, put it back where you got it.”
These rules are the ones I am writing about here. Common sense?  Apparently not for all!  These apply regardless of the sex of the parties.
1.It is not okay to give someone a neck or shoulder massage because they “look tense.”
2.It is not okay to give someone a hug because they look sad or “look like they need a hug.”
3.It is not okay to touch someone’s hips or back to show them you want them to move out of your way or just because you are near them.
4.It is not okay to give someone a welcome kiss because you are glad to see them (after all, we are not living in France).
5.It is not okay to slap someone on the butt, despite how big of a jock he is (I would probably grant an exception if this occurs on the football field or rugby pitch while everyone is in uniform, while the game is still in progress, but no place else;  and definitely a kiss would be inappropriate!).
6.It is not okay to take the other person’s hand, rub the other person’s back, lay your hand on the other person’s thigh, or rub the other person’s ______ (fill in the blank, anything can go here).
A Battery is a Battery!
Any unwanted touching of any kind is considered a battery.  You can be sued for it. You can be prosecuted criminally for it. You can be fired for it. So don’t be surprised when that happens.

How You Can Tell the Other Person Wants the Touching?

How do you know whether the other person wants the touching?  That’s easy.  They will tell you in no uncertain terms, using very specific language:  “I want you to massage my neck” or “I want you to slap my butt” or “I want you to give me a hug.”  For example, if you will recall the totally fictional character Hotlips O’Houlihan in the film “Mash,” who stated: “Oh, Frank, my lips are hot!  Kiss my hot lips!”  But remember, that scene did not take place in the workplace.
Also, this won’t be a request which the other person makes nonverbally or by “a look” or by an indirect comment or insinuation or by “flirting.”  Just because you believe you are God’s gift to the other sex or other person does not mean you really are.  Just because you believe that you can tell when the other person really wants to have some romance with you without them even having to say it, does not mean that you are correct.  “No” means “no,” especially when it is not a specific “Yes.”
Direct and specific.  Otherwise, JUST ASSUME THAT THEY DO NOT WANT IT and you will be okay.  Also, just because that might happen one time (miracles being miracles) does not grant you an unlimited license to hug, kiss, rub or slap a butt all the time, anytime, anywhere, and especially not at work.
You won’t get sued because you failed to give someone a hug that needed it (Heimlich maneuvers excepted).  You won’t get prosecuted criminally because you failed to give someone a hug who needed it. You won’t have a Title IX complaint or sexual harassment complaint filed against you because you failed to give someone a hug who needed it.  You won’t get fired because you failed to give someone a hug who needed it.
Especially Keep Up Boundaries with Subordinates.
If the other person is a subordinate, then you must still make sure you create, maintain and keep your professional boundaries.  Just because your junior resident says he needs you to kiss his lips, does not mean you should do this;  in fact, you shouldn’t.  Just because your ultrasound technician tells you she needs you to give her a hug, does not mean you should do this;  in fact, you shouldn’t.  Just because your favorite nurse tells you that he is your favorite nurse and to “kiss me you fool,” does not mean you should do this;  in fact, you should not.  And again, the foregoing goes triple in the workplace.

So, Just Keep Your Hands to Yourself!

So, just keep your hands (as well as other body parts for you pervs out there who may interpret this warning too literally) to yourself, especially in the workplace!
If you are unable to keep your hands to yourself, then you have some serious impulse control issues and you need some heavy duty psychiatric or psychological treatment to cure this.
If you are unable to distinguish the boundaries between workplace and social settings, then you have some serious professional boundary issues, and you need some deep education, counseling and behavior modification therapy.
If you believe you can read the other person’s mind and can receive those secret brain signals that tell you that he or she really, really wants you badly, man (or woman) you need some help.
If you are unable to control yourself to the extent that you violate the warnings I am providing in this article (though they be written with a certain degree of humor and sarcasm), then you are in for a very rude awakening.  It is just a matter of time.
Don’t allow your professional career to be ruined by a lack of self-control.  Control yourself.  No one else can.

We are here if you need us.

However, if you get into trouble with your graduate medical education program, medical school, hospital or employer because of being a little too “handsy” or because of unprofessional conduct or boundary issues, contact us right away.  We are familiar with such problems and may be able to help, if it’s not already too late.
To read one of my prior blogs, including 16 helpful tips to avoid sexual harassment complaints and allegations, click here.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents, and Fellows.

The Health Law Firm routinely represents students, including medical students, dental students, nursing students, pharmacy students, resident physicians, and fellows, who have legal problems with their schools or programs. We also represent students, residents, and fellows in investigations, academic probation and suspensions, disciplinary hearings, clinical competence committee (CCC) hearings, and appeals of adverse actions taken against them. The Health Law Firm’s attorneys include those who are board-certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: [email protected] or fax them to (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.
By |2023-09-28T11:58:25-04:00September 28, 2023|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Don’t Get Labeled as a “Problem Resident” for Disputes With Your Medical Education Program: Prepare to Identify and Address Problems

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A resident physician has a tough life while working to become specialized in a medical specialty, especially in the more complex ones. Try to make it less complicated instead of more complicated.

Residents are In Two Different Positions: An Academic Position and an Employee Position.

Residents actually serve in two different positions. One position is as a learner in an academic situation, similar to a student, pursuing post-graduate training and education in an accredited graduate medical education (GME) program. The second position is as a full-time employee, paid to take care of patients in hospitals and other institutions, with a workweek often approaching or exceeding 80 hours a week. Residency training programs may range from three years to six years in length, depending on the medical specialty.

Because of the difficulty of balancing full-time work and full-time academic learning, often while dealing with family, health, and other outside problems, residents often run into difficulties with their GME programs. This may be due to personality conflicts with a program director or attending physician, cultural or religious differences, learning disabilities or other health or physical problems, outside family obligations, a bad fit with the particular program, differences in medical school training, or many other reasons.

The potential resident should attempt to identify what these might be before starting a program and seek to avoid these at any cost. This may be easier said than done, but you must identify the problem before you can fix it.

It Is Important to Know Your Rights and Take Appropriate Actions.

Understanding your due process rights and other legal rights, as well as your program’s grievance and complaint procedures, is crucial in handling serious problems after you are in a program. However, you should always seek to work out your problems informally, seeking advice from and using the resources made available for residents. These resources may include Employee Assistance Programs (EAPs), psychological and mental health counseling, the availability of mentors and tutors, the institution’s office for equity, inclusion, and diversity (which may go under different names at different institutions). Request extra tutoring and specialty courses that may be available to help you cope. Seek to eliminate areas of contention or disagreement and to increase areas of commonality and agreement. Seek at all costs to get along with others and work up to expectations.

However, if all efforts fail, then you do have abundant legal rights to protect yourself no matter what program you are in. The Accreditation Commission for Graduate Medical Education (ACGME) requires that all accredited GME programs have written policies and procedures in place that provide various rights to residents. These include, for example, the right to file grievances (complaints) when the resident is wronged and these must be formally investigated by the institutions. You will have what the ACGME calls “Due Process” rights (e.g., the right to legal representation, the right to adequate notice, the right to have a fair hearing, etc.) in connection with any type of adverse action taken against you. You will also have the right to appeal adverse decisions, the right to be free of discrimination and harassment, and other valuable rights all ACGME accredited programs must-have.

Obtain and Review All Program Manuals and Handbooks.

The resident should always obtain and review the documents that govern their programs. These are often only mentioned or reviewed in passing during orientation. You should obtain copies of these, review them and save them on your computer. You may not be able to freely access these at the time you actually need them.

Such documents may “GME Handbook,” “Residency Program Manual,” “House Staff Manual,” “Resident Policies and Procedures,” or variations on these names. Your actual resident contract or house staff contract may also have certain rights spelled out in it.

But, as an employee of the hospital or institution, you also have all of the same rights as an employee of any large organization. These may be spelled out in an Employee Handbook. But they will definitely be spelled out in your state’s employment laws. The right to work free of discrimination based on race, national origin, religion, gender, and disability, will be among these.

Take Action to Protect Your Rights and Your Career.

Seek the advice of experienced health care legal counsel at the earliest possible time, even if only to review your options and help decide on a course of action. If you receive a written counseling, remediation, performance improvement plan (PIP) corrective action plan (CAP), suspension, or probation, seek legal advice from an attorney experience with graduate medical education programs. At the very least, consult on how to respond and what to do next to be prepared.

These problems and issues are ones for a board-certified healthcare lawyer familiar with such programs, not an employment lawyer, contract lawyer, trial lawyer, or criminal defense lawyer. Know the difference.

Click here to read about the qualifications of a board-certified healthcare lawyer.

For more information, visit our YouTube page and watch our latest video on residency program disputes.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections, and audits involving the DEA, Department of Health (DOH), and other law enforcement agencies. Its attorneys include those who are board-certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Our attorneys can represent you anywhere in the U.S. and anywhere in Florida.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, Florida 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

By |2023-05-10T20:02:02-04:00May 12, 2023|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Medical Residency and Fellowship Program Problems: Do’s and Don’t’s of Dealing with Graduate Medical Education (GME) Programs

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Medical residents and fellows, often when experiencing problems with their graduate medical education (GME) programs, wait until it is too late to think of consulting with an experienced healthcare attorney regarding possible solutions. Even when it may appear to be too late, it may not actually be too late to recover.

Try to take appropriate actions and make informed decisions at the earliest possible stages; try not to wait until you have received a notice terminating you to consult with an experienced health lawyer.

Medical Residents and Fellows Play Two Different Roles and Have two Different Sets of Rights.

Always remember that, as a resident or fellow, you actually have two different positions and two different sets of rights apply to you.

First, you are a learner (similar to a student) in an education program. In a teaching hospital or other GME program, you have certain academic rights afforded to you by virtue of this academics arrangement. These may arise from the requirements imposed by certifying bodies such as the Accreditation Council for Graduate Medical Education (ACGME) or the American College of Obstetrics and Gynecology (ACOG). Such standards are usually embodied in both the program’s GME Manual/Handbook and in the separate Residency or Fellowship Program Manual/Hanbook for that medical specialty program. These will include the right to file grievances regarding adverse decisions and the right to hearings and appeals (and other “due process rights”) on adverse actions and decisions.

Whether the adverse action is a failing grade in a rotation, placement on probation, placement on a personal improvement plan (PIP), a requirement to remediate a course, exam or rotation, or a termination from the program, it is important to know what your rights are and to exercise them, at the earliest possible time.

Second, you are an employer of a hospital or institution, as well. You have a written employment contract. You have rights such as to be free from discrimination of various forms. You have the other rights all employees have as set forth in numerous state and federal laws, as well as in the employer’s employee handbooks, manuals and policies and procedures.

If you are being sexually harassed, then you should file a complaint with your employer’s Human Resources Department followed by one with the federal Equal Employment Opportunity Commission (EEOC) or equivalent state agency (such as the Florida Commission on Human Relations Commission or FCHR). If you are being forced to work in a hostile work environment because of discrimination based on your race or nationality, then you should also file a complaint as above. If you have any type of mental or physical handicap or disability or any type of mecial condition which may affect your ability to perform (ADHD being the most common one we have seen) then you should give your employer notice of this and request reasonable accommodations to help you (most employers have online forms or forms available from the Human Resources Office for this. But do this at the earliest possible opportunity, preferably, at the very start of your residency or fellowship.

Be sure you obtain, review and save copies of all of the handbooks, manuals, and policies and procedures discussed above.

Know What the ACGME Says Your Program’s Obligations Are to You as a Resident or Fellow.

Also, review what the ACGME says your program must be doing to properly perform its role as a teaching institution. Go onto the ACGME website and review these requirements. These include, for example, providing regular and meaningful feedback on your performance and being sure you are given the proper opportunities to know what your perceived deficiencies are and to correct them.

If these are not embodied in the institution’s GME Program Manuals/Handbooks, then the program is deficient and may be subject to losing its accreditation.

Advise Your Program Director and the Head of the GME Program If the Program’s Obligations to You Are Not Being Met.

If you are not receiving timely and appropriate feedback on your performance, both formal and informal, give written notice to the Program Director, with a copy to the GME Office requesting that it be placed in your GME file.

If you receive an adverse evaluation because of bias or prejudice, immediately give written notice to the Program Director, with a copy to the GME Office requesting that it be placed in your GME file.

If you are given warnings, counseling, adverse evaluations, remediation or performance plans that are based on incorrect facts, immediately rebut these, in writing, using neutral and objective statements. Provide a copy of this to the Program Director, with a copy to the GME Office requesting that it be placed in your GME file, attached to the document it rebuts.

If you have personal problems, family problems, medical problems or other problems that are affecting your ability to perform, then ask for as much time off as you may conceivably need to take care of these, even if it means taking unpaid time off or an extended leave of absence. It is much better to address this type of issue up front and make up missed rotations and exams than to ignore them and fail. To learn more, click here to read one of my prior blogs on this issue.

You Need to Recognize Problems and Take the Appropriate Actions, Too.

If you have medical problems which affect your performance, seek the correct type of treatment from the appropriate medical specialist, and stay in follow-up treatment. If you have ADHD with which you are coping, you need a good psychiatrist to help you manage it, not a family practice physician. If you are dealing with post-traumatic stress disorder (PTSD), you need a good psychiatrist to help you manage it, not an OB/GYN or mental health counselor. But you also need to apply for reasonable accommodations.

If you are not the brightest person to ever graduate from medical school and you are in the best, hardest, most sought after residency program, maybe you are in over your head. Maybe you should consider changing to a different program before you are terminated form this one.

I represented a resident once who had been diagnosed with cancer twice while in residency. Twice he went through chemotherapy and radiation treatments and defeated the cancer. He also attempted to return to the program, to resume a very demanding schedule and not take time off to properly recuperate. He could have and should have taken a year’s leave of absence for each cancer he had.

He wound up being terminated. He did not recognize his limitations or ask for appropriate accommodations. On the other hand, he was lucky to be alive and to be a doctor, regardless of failure to complete his residency.

Take Action to Protect Your Rights and Request the Appropriate Remedies.

Know your rights under your GME program. Seek the advice of experienced legal counsel at the earliest possible time, even if only to review your options and help decide on a course or action.

Know and exercise your rights as an employee, but remember, you are a special type of employee. Seek the advice of experienced health care legal counsel at the earliest possible time, even if only to review your options and help decide on a course or action.

These problems and issues are ones for a board certified healthcare lawyer, not an employment lawyer, contract lawyer, trial lawyer or criminal defense lawyer. Know the difference. Click here to read about the qualifications of a board certified healthcare lawyer.

You must Exhaust Your Remedies Within Your Program First, If You Decide You must Sue in Court Later.

Don’t believe that you can just go out and sue in court and achieve what you want. First, courts are very reluctant to second guess academic decisions made by teaching institutions. They just don’t like to be in the business of second-guessing clinical professors and academicians. They don’t have the training and knowledge to do so, in many cases. Second, courts expect that you have gone through any internal administrative remedies that you may have within the program (called “exhaustion of administrative remedies”). This includes grievances, appeals, academic hearings and due process provisions. A court will not entertain a case until you have done so, so you may as well go ahead and get this done. To read what our firm does in the area of complex litigation, click here.

However, if you are in a program in a state or federal hospital or university program, you will have greater due process of law rights available to you to enforce in court under the U.S. Constitution and state laws than what you would have in a private institution.

Also remember that in court litigation, your GME handbook or manual, your Program handbook or manual and your program’s or hospitals policies and procedures will be your “GME contract” which you can enforce, in addition to your written employment contract.

Remember That External Complaint Mechanisms Are Also Available That May Help Remedy Your Situation.

We discussed filing discrimination and harassment complaints with ouside agencies such as the EEOC and the state human relations commission (such as teh Florida Commission on Human Relations). However, you can also file a complaint with the ACGME or other accrediting body, if the program is not meeting its standards. For information on how to do this, click here.

The U.S. Department of Health and Human Services (HHS), Office of Civil Rights (OCR), may also be an appropriate place to file a complaint, under many circumstances. For examples, click here.

For more information on what we, as healthcare lawyers, can do to help you, please visit this article on our website.

Contact Experienced Health Law Attorneys Representing Medical Students, Residents and Fellows.

The Health Law Firm routinely represents medical students, residents and fellows who run into difficulties and have disputes with their medical schools or programs. We also represent other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the DEA, Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys. Our attorneys can represent you anywhere in the U.S. and anywhere in Florida.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

By |2020-02-13T13:36:44-05:00May 15, 2018|Categories: Medical Education Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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