Tulgan, Henry MD; Cohen, Shepard N. MPA; Kinne, Kevin M. JD
In view of the very defined requirements of the Accreditation Council for Graduate Medical Education (ACGME) to protect and support residents, policies must be developed both for their benefit and to safeguard sponsoring institutions. With the recent decision of the National Labor Relations Board (NLRB) to allow housestaff unionization, yet another consideration has been added. There are articles in the literature dealing with emotional impairment in house officers,1 dismissal of students and residents,2,3 temperament and stress factors during residency,4 and impaired-resident programs,5 as well as a major paper by the American College of Physicians relating to alcohol and substance abuse during residency training.6 But there is little in the way of published information regarding methods or procedures to deal with the resident who requires termination from a training program for behavioral and performance issues related to such factors or who is otherwise disruptive.
Berkshire Medical Center (BMC), an acute-care community teaching hospital and a major affiliate of the University of Massachusetts Medical School (UMMS), is located in Pittsfield, Massachusetts, the seat of Berkshire County. It serves a population of about 200,000 persons from Massachusetts, New York, Vermont, and Connecticut, and has been a prototype for community hospital education efforts nationwide.7 UMMS and BMC have jointly developed specific policies to cope fairly with the resident dismissal process. We present these policies and a case report from BMC demonstrating how a strong institutional policy, which has been thoroughly tested through the judicial system, can allow for appropriate action while providing safeguards against possible responses by the terminated resident.
BMC'S STANDARDS AND PROCEDURES FOR TERMINATING A RESIDENT
Below is a summary of the corrective actions defined in the Residency Program Personnel Policies of the Berkshire Medical Center to informally respond to a resident's appeal of a disciplinary action.
Each department chairperson is charged with providing written residency program standards, including goals and objectives and standards for evaluating residents. Such review includes each resident's knowledge, skill, personal growth and development, and attitude. Initial responsibility for informal corrective or disciplinary action is also at the level of the department chairperson. Departmental autonomy is encouraged for initial or minor incidents. However, formal corrective actions may be requested at any time.
One of two stages of formal corrective/disciplinary procedures is considered when internal, informal procedures are unsuccessful. The specific stage to be implemented is determined by such factors as: severity and frequency of the offense; documented history of prior informal or formal corrective/disciplinary actions; and the resident's overall performance and conduct.
Stage one: written warning. The department chairperson or designee notifies the resident in writing of the specific unacceptable conduct or performance, of the required method and timetable for correction, and of the possible consequences of noncompliance with the required correction. The written notification also informs the resident of the right to appeal.
State two: written order. The department chairperson or designee prescribes in writing a specific action, including but not limited to: additional work assignments; limitations of responsibilities; or temporary suspension, or non-reappointment, or dismissal from the residency program. The chairperson's letter includes at minimum the reasons for the order, the effective date, the possible consequences of noncompliance, and the right to appeal. Standard practice is to provide a minimum of six months' notice of nonreappointment unless there is a reasonable basis for giving notice earlier.
The Appeals Process
When all reasonable efforts within each department to informally and formally respond to a resident's appeal of a disciplinary action are exhausted, the resident may initiate a four-step appeals process, described below and summarized in Table 1.
The resident has the right to submit requests about matters that include alleged violation of rights or procedures or violation of benefits granted by personnel policies and by any other applicable federal or state law, hospital policy, or professional society statement; about matters of conduct of a supervising physician whom the resident believes is unfair; or about matters of working conditions.
Step one. To initiate a formal appeal to a Stage One or Stage Two action, the resident requests the department chairperson or designee to modify or withdraw the written warning or the written order. The request must be submitted in writing within five working days of the receipt of the corrective/disciplinary action written notice. A conference between the resident and the department chairperson must be held to consider the resident's request. The department chairperson must respond within five days in writing to the resident's request for modification or withdrawal of action.
Step two. If the department chairperson sustains the stage one or stage two action, the resident has the right to request a review by a departmental committee. The resident's request must be submitted in writing within five working days of receipt of the department chairperson's response to the step one conference. Within ten working days of receipt of the resident's request by the department chairperson, a departmental review committee convenes and delivers a written decision. The decision of the committee to sustain, modify, or withdraw the department chairperson's corrective/disciplinary action is binding upon the chairperson.
Step three. The resident has the right to appeal further to the academic dean, by submitting in writing within five working days a request for appeal of the written decision by the department review committee. A conference with the academic dean or designee, the department chairperson, and the resident is held; and the academic dean or designee delivers a written decision within five working days of receipt of the resident's request.
Step four. If the academic dean sustains the actions, the resident has the right to appeal by submitting a request in writing for a hearing within five working days of receipt of the step three decision. After the academic dean holds a conference with the department chairperson and the resident, a senior faculty or administrative person is asked to convene and chair a five-member medical center hearing board. The resident selects two members of the board and the department chairperson selects two members; the appointed board chairperson votes only in the case of a tie. The academic dean or the hearing board delivers a final binding decision in writing within ten working days of the academic dean's receipt of the resident's request.
The imposition of any disciplinary action may be suspended during the appeals process, except when the department chairperson in consultation with the academic dean or designee believes that some restrictions of the resident's responsibilities are required in the interest of patient care.
If the resident's appeal is successful, then the resident's file is expunged of all documents relative to the matter that was appealed.
In 1991, BMC employed as a postgraduate year 2 (PGY2) resident an individual who had completed the PGY1 year at two separate institutions, spending five months at one and seven months at the second.
Personal and family issues were claimed to have underlain this unusual first year. The application to BMC was said to have been based on a preference to continue training in a small, more individualized program. At no time during recruitment did the program director at either of the former training programs express reservations about this individual. Indeed, a letter of successful completion was received for the seven-month period from the department chairman of medicine at the second institution. (Years later, the specialty board in which the resident was training indicated that, in fact, credit had not been granted by the program director.)
From the very onset of employment, unusual behavior was observed. Textbook publishers were approached for complimentary books on the basis of a nonexistent medical school faculty rank. Offers to teach nurses, for a fee, were made. Behavior in the hospital food line was inappropriate. The resident had difficulty in organizing ward rounds and in interacting with fellow residents and medical students. When approached with suggestions, there was inability to admit to faults or to take corrective action. Attending physicians were dissatisfied about patient care and professional deportment.
The resident claimed that both peers and attending physicians were subversive. Allusions were made to a conspiracy. A physician from the second prior institution was accused of having passed $3,000 to two members of this staff to make the BMC experience unworkable for the resident. Age discrimination was also raised, although a number of peers were older. After five months of continued inability to resolve these numerous problems, corrective action as defined in the Residency Program Personnel Policies of BMC was implemented. The department chairperson/program director held a series of meetings in which deficiencies and/or problems were pointed out and corrective actions suggested. On several occasions, multiple faculty members were present. The resident refused all such offers. When it was concluded that these deficiencies and problems had not been corrected, and with this attitude of unwillingness to admit to error, seek advice, or take corrective steps, the committee concluded that the resident's behavior was disruptive. There was no overt evidence of alcohol or substance abuse, and testing for this was also refused by the resident. Although no incident of harm to any patient had been reported, it was clear that this was a possibility. The resident refused final attempts at referral to counseling or assistance programs off-campus that were of a confidential nature, so termination action was taken because of disruptive behavior detrimental to the institution and its graduate medical education program.
The resident elected to proceed directly to a Step Two committee review. An ad hoc committee consisting of four members of the department met and confirmed the resident's extraordinary problems with patient care and physician-physician interactions, inability to accept responsibility, and denial of any wrongdoing. The department chairperson/program director's decision was upheld. The resident was notified by the director of medical education/academic dean of the Committee's action and chose to seek legal counsel and to invoke a step four appeal procedure. Accordingly, a hearing board reviewed and reconsidered all documents and circumstances and voted unanimously to uphold termination. The director of medical education/academic dean again communicated the status on the basis of concerns about the resident's medical judgment; inability or unwillingness to accept constructive criticism, correction, or advice; and failure to respond to opportunities that had been offered for counseling.
After dismissal was upheld by the governing board of BMC, the resident embarked upon a lengthy course of legal action that is summarized in Table 2. Not shown on the table is the fact that the resident's second prior institution was also involved in legal proceedings in a separate jurisdiction. The resident brought nearly identical complaints in December 1995 in Illinois Federal Court, which were dismissed after the hospital moved for such action in July 1996. An appeal by the resident resulted in the 7th Circuit Court of Appeals' upholding the Illinois Federal Court's Action in August 1997. That institution and BMC both sustained heavy expenses in money and time, in part because of requirements that teaching faculty and administrators appear at these legal proceedings over a period of nine years. Even after completion of all legal appeals, the resident continues to contact faculty at BMC and members of our legal staff with requests for reinstatement or letters of reference to other programs!
It seems unusual that a procedure that has been so well considered by the judicial system has been so poorly described by medical institutions for use in situations such as the one described above. Guarantees of due process for both a resident and his or her institution include some or all of the following8:
* An unbiased tribunal
* Notice of the proposed action and the grounds asserted for it
* The opportunity to present reasons why the proposed action should not be taken
* The right to present evidence, including the right to call witnesses
* The right to know opposing evidence
* The right to cross-examine adverse witnesses
* The right that the decision be based exclusively on the evidence presented
* The right to counsel
* The requirement that the tribunal prepare a record of the evidence presented
* The requirement that the tribunal prepare written findings of fact and reason for its decision dependent on severity
However, no consistent framework has emerged from decisional law. Interestingly, dismissal of medical students in situations not dissimilar to that described above has been upheld by the United States Supreme Court on at least two occasions,9,10 wherein the conclusions were that further hearings would be potentially harmful to scholarship as well as useless.
Two incidents have been reported recently at other institutions. In one, a former disgruntled resident was arrested in a plot to murder a department chairman who had refused to write a letter of recommendation ten years earlier,11 and in the second, a program chairman actually was murdered.12 These incidents serve only to highlight the seriousness of these matters and the need for academic independence.
Lack of communication and lackadaisical credentialing processes have also been blamed, in part, for the ease with which Michael Swango, MD, now well known for his multiple criminal offenses, was able to obtain residency after residency.12,13,14
It has been a matter of concern throughout the process at BMC that neither program director at the other institutions conveyed any warning about potential problems. Indeed, one hospital actually misled us. Honest communication between programs should be encouraged and could ward off situations such as ours and the others we have cited. BMC has developed residency program personnel policies that include stages and steps to be implemented should termination procedures be required for cause and that carefully consider standards of legal guarantees. Program directors should not be fearful of dismissing of residents who are disruptive or otherwise not teachable because of the threat of lawsuits. This case shows the success that results from using carefully designed policies that protect both the resident's due process and the needs of the sponsoring institution. These matters may be unusually protracted—in this instance nine years. Although most or all teaching hospitals have developed policies and procedures of their own, the ones we have presented in this article have been thoroughly tested through the judicial system and upheld at the highest levels, and parts of them may be useful in other institutions.