By 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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