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What Are My Options If I’ve Been Wrongfully Terminated from my Hospital Residency Program?

Introduction

The long and arduous road to becoming a doctor is one that only a few people get to experience in their lives. Those few, dream of becoming a doctor at an early age which makes the journey seem that much longer. Your parent or neighbor might have been a doctor and that relationship might have created a desire to pursue the same career path. Maybe you were motivated by a desire to serve your community by providing health services to the poor or disabled. Unfortunately for you, your career as a doctor may come to a screeching halt before you complete your medical residency program. If you are at risk of being unceremoniously discharged from your residency program or have already been discharged there are certain legal considerations that you should examine.

Disciplinary Board

If you are discharged from a medical residency program it is important to examine the language contained in the hospital policies and procedure manual. In the manual it will explain the procedure for internal disciplinary action taken against hospital staff, which may require a mandatory board hearing depending on the alleged infraction. Prior to the board hearing, a neutral intermediary may be utilized so that direct communication between the hospital and the resident is limited. The disciplinary board may be comprised of a three-person panel where you can choose to present your defense. I would advise against signing any documents presented to you by the hospital after you have received written notice of the disciplinary hearing until you have spoken to an attorney with experience in health and employment law. The manual will state how many days the panel has to render its final decision regarding your status in the hospital residency program, and the method by which the panel used to render the final decision. There will also be a procedure for filing a timely appeal should you choose to do so after an unsuccessful initial board hearing.

Suspension, Termination, or Resignation

The panel may recommend suspension or termination from the hospital residency program. The length of suspension will vary depending on the circumstances. A board’s decision to suspend or terminate a resident should be determined objectively but it’s difficult to refute the fact that there is a subjective component. This is why one resident who committed similar bad acts may only be suspended while another resident may be terminated. Hospitals have the authority here to make that determination and unless there is clear employment discrimination a court is unlikely to undermine and overthrow the hospital’s decision.

In some instances, I have witnessed the hospital allow the resident to voluntarily withdraw or resign from the residency program so that it doesn’t diminish their chances of gaining acceptance to another residency program. The thought of starting anew in a different residency program is chilling, but given the circumstances this could be your best option. You must decide whether you want to explain why you resign from the program or you can let your records speak for themselves. If you elect to be terminated from the program and subsequently apply for admission into a different program you will be required to submit your records from your previous residency program. Additionally, the hospital residency program may ask for references where the details of your departure may come to light. Further, the hospital manual should be examined alongside your hospital residency employment contract.

Arbitration, Lawsuit, or Administrative Complaint

Your residency employment contract will contain the terms and conditions of your employment during the residency program. The contract will most likely bind you to a mandatory arbitration in the event that a legal matter arises between you and the hospital. Hospitals prefer arbitration because:

  • They are usually less expensive;
  • Parties can choose the arbitrator:
  • Parties can choose the time and place of the arbitration;
  • The proceedings are held privately behind closed doors; and
  • Its outcome does not become part of the public record.

 

Arbitration is not held in court but in a court-like setting complete with discovery proceedings and an arbitrator acting as a judge. Additionally, the arbitration is resolved much faster since the parties don’t have to wait for availability on the court’s docket, which can take months before you are actually heard by a judge.  Final judgment by an arbitrator is binding and very difficult to successfully appeal.

Depending on the reason why you were fired you may be able to file a complaint with the Accreditation Council for Graduate Medical Education (“ACGME”) which is an organization that in part, helps physicians in graduate medical education receive fair solutions to residency/fellowship education-related concerns and formal complaints. Most residency programs are accredited by the ACGME. The ACGME requires that residents have a right to present their defense before a board or panel. The ACGME’s Resident Services division does not adjudicate disputes between individual persons and residency/fellowship programs or sponsoring institutions. Resident Services does not address issues regarding matters of admission, appointment, contract, credit, discrimination, promotion, or dismissal of faculty members, residents or fellows.

As such, depending on the facts and circumstances I advise residents against filing a lawsuit against the hospital unless you are terminated for an illegal reason. Illegal reasons can include, but are not limited to, discrimination based on race, gender, sexual orientation, country of origin, nationality, or religion. You may make a claim alleging discrimination under Title VII of the Civil Rights Act of 1964 and breach of contract if the facts could support such a claim. In cases where residents have successfully won lawsuits against the hospital for discrimination they introduced ample evidence from which it could be concluded that they were unlawfully discriminated against. Residents may try to obtain evidence of the following:

(a) testimony or affidavit from doctors in a direct supervisory position to attest to the satisfactory nature of your work;

(b) evidence to rebut other supervisor’s negative evaluations of you – the resident;

(c) evidence of other residents with low test scores and unfavorable evaluations who have been allowed to continue in the program; and

(d) evidence that you were able to successfully complete the residency requirements since leaving the hospital.

In some jurisdictions, direct evidence of discrimination is not required. A plaintiff may entitled to rely on circumstantial evidence to convince the trier of fact that an employer’s explanation for his discharge is pretextual and that his discharge was more likely than not motivated by discriminatory intent. However, more of today’s courts are less likely to rule in a resident’s favor unless the resident can show direct evidence of discrimination. In Zaklama, M.D. v. Mt. Sinai Medical Center, 842 F.2d 291, 296 (11th Cir.1988), Dr. Zaklama was able to obtain evidence of a-d above, but it took approximately six years for the case to be fully adjudicated and a lot of money in legal fees.

Regardless of whether you go before a hospital board, arbitration, or file a complaint with the ACGME you will have the opportunity to review your evaluations, personnel file, and credentialing so that you can build your defense.

Conclusion

If you feel that you are at risk of being removed from your Hospital Residency Program and would like to speak to an attorney about your options please contact us immediately. You should explore all of the options available to you because this is your career at stake.  There is typically a very short window to file an appeal so it is imperative that you contact an attorney immediately if you are facing a disciplinary board hearing at your hospital.

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This post was authored by Jamaal R. Jones, Esquire and Matt Lester of Jones Health Law, P.A. for more information contact us at (305) 877-5054; email us at JRJ@JonesHealthLaw.com, or visit our website at www.JonesHealthLaw.com.

It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the information listed above.

All of the information and references made to laws, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

I’m HIV Positive and Worried About Employment Discrimination

Discrimination isn’t as overt as it once was during preceding generations, but discrimination is still a rampant problem affecting those residing within the United States. Millions of Americans are discriminated against for various reasons, such as race, country of origin, religion, sexual orientation, gender, etc. Unlike other identifiers, it is difficult to shield your race or gender from the public, and we are not afforded special protections under the law simply because we are African-American or female. However, other identifiers such as an HIV-positive status does not present itself to the public the way that race and gender does.

More than 1.2 million people residing in the United States are living with HIV, and almost 1 in 8 are unaware of their infection. Gay, bisexual, and other men who have sex with men, particularly African-American men, are most seriously affected by HIV. The CDC conducted a study that determined that African-Americans face the most severe burden of HIV. African-Americans account for roughly 12% of the U.S. population, but accounted for an estimated 44% of new HIV infections in 2010.

Many fear that their HIV-positive status, which is very personal in nature, may eventually become public knowledge. However, there are laws that have been enacted that grants certain rights regarding privacy and limitations of access to one’s medical records, and places limits on the amount of information that one has to disclose about their HIV status to their employer and others.

Workplace discrimination based on an HIV-positive status is illegal. Individuals living with disabilities, such as HIV find protection under the Americans with Disabilities Act (ADA). Individuals afflicted with HIV live with physical impairments that significantly limit their day-to-day activities, which is why the ADA protects them.

The ADA guarantees equal opportunity for employment for those living with HIV. Employers may not base their decision to hire or fire an employee out of fear that the individual may become ill in the future as a result of the virus. The decision to hire an individual must be based on the individual’s qualifications as they exist during the interview process. Additionally, employers may not avoid hiring a qualified individual because they are afraid of the potential for higher medical insurance costs or sick leave for that employee. Under the ADA, an employee may not be denied access to health insurance enrollment generally available to other employees in the company due to their HIV positive status.

An employer is prohibited from singling out a prospective employee by requiring them to submit to a medical examination for the purpose of determining one’s HIV status prior to making a job offer. Even so, employers are prohibited from accessing those results without prior written consent from the employee. During the interview process an employer may not inquire about an individual’s disability or the seriousness of the disability. However, an employer may inquire about an individual’s ability to perform job related duties and responsibilities. An employer’s decision to hire someone after conducting a post-offer medical examination must not be based on one’s HIV-positive status alone, without some other complication. This does not mean that an employer cannot make a conditional job offer while awaiting an adequate outcome of a post-offer medical examination so long as this is required of all new employees with the same job title.

Although, an employer may not use an employee’s status against them the ADA does require that an employee’s status be securely kept on file once it has been discovered. AN individual’s status must be kept confidential and separate from general personnel files. Appropriate safeguards must be put in place to protect the employee’s status. Further, this file must only be accessed in limited circumstances.

Under the ADA, employers are required to make “reasonable accommodations” for their disabled employees. A “reasonable accommodation” is any modification or adjustment to a job, application process, or work environment that will enable the qualified applicant or employee with a disability to perform the essential functions of a job, or enjoy the benefits and privileges of employment. The ADA does not impose a requirement that an employer make accommodations that would result in undue hardship for the business.

Reasonable accommodations are only required to be made by an employer for known disabilities. Therefore, if an employee elects not to disclose their status then it is unlikely that the accommodation will be made. In some instances, an employee may only choose to disclose that they have a disability that is protected by the ADA requiring reasonable accommodations without specifying what the disability is. Under this approach, an employer would be well within his right to require medical documentation of the disability prior to making the accommodation.

Employees do have some responsibilities regarding their status. If an HIV-positive employee is a health care worker they must inform their occupational health department of their status.

Many states have enacted laws that address employment discrimination based on an individual’s HIV. Florida Statute §760.50 states that employers are prohibited from requiring a prospective employee from submitted to an HIV test as a condition of hiring, promotion, or continued employment unless an HIV-negative status is a bona fide requirement for the desired position. An employer has the burden of proving that there is a bona fide requirement that the employee be HIV-negative. To show this the employer must prove that: (1) the HIV test is necessary to determine whether the employee can perform the tasks and duties of a particular job in a reasonable manner or whether the employee will pose a significant threat of infecting others during the course of normal work activities; and (2) there is no alternative or reasonable accommodation available.

Under Florida law, an employer may not deprive or tend to deprive a healthcare professional or healthcare worker of employment opportunities due to their status with respect to compensation, conditions, or privileges of employment because they provide treatment to individuals infected with HIV. Additionally, if an employer fails to maintain the confidentiality of an employee’s status after it has been acquired for purposes of health insurance or life insurance benefits enrollment the employer will be liable for liquidated or actual damages, reasonable attorney’s fees, and any other relief that the court deems appropriate.

This is a brief overview of the ADA and other laws that govern an HIV-positive individual’s rights. For more detailed information about your legal rights regarding your HIV/AIDS status about this issue and others please contact a licensed attorney. If you have any questions please feel free to leave them in the comments section and I will respond to as soon as practical.

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