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Breaking News: Wrongful Termination Suit Highlights Due Process Gaps

Shaw, Gina

doi: 10.1097/01.EEM.0000453156.04988.91
Breaking News
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It wasn't the most judicious of comments.

Catherine Puetz, MD, then the associate director of emergency services at Spectrum Health Hospitals in Michigan, saw a Facebook photo posted by a colleague, showing a woman's unusual backside, and thought she recognized someone she had seen in the emergency department. She posted: “OMG. Is that TB?” (The woman's initials.) Several other hospital staff members commented as well.

The post appeared Aug. 5, 2013, and Dr. Puetz soon realized it was a bad idea. She submitted a written apology to the hospital, but in less than two weeks, she was removed from her post as associate medical director. On Aug. 19, she claimed, Spectrum Health told Emergency Care Specialists, the independent contractor that staffs Spectrum's emergency departments, that Dr. Puetz could no longer practice in any of its facilities.

At first, this might seem like a straightforward question of whether Dr. Puetz's single comment rose to the level of a HIPAA violation that would warrant the hospital's action, but the situation is much more complicated than that. Dr. Puetz alleged in a lawsuit filed in March in U.S. District Court that Spectrum's actions were motivated by the desire to eliminate her as a business competitor.

Dr. Puetz had created materials for evaluating patients in observational units while working at Spectrum, and she began making plans to provide consulting services to other hospitals around the country. Her court filings maintain that the hospital asserted ownership over the observational unit materials, and declared that it could prohibit her from making related consulting arrangements.

No one involved with the case is talking at the moment. Lawyers for Spectrum Health stated that they would not comment on ongoing litigation; Dr. Puetz's lawyers did not return messages from Emergency Medicine News. But whatever the outcome of this particular case, it highlights a larger issue in emergency medicine: The lack of due process protection for emergency physicians, many of whom are employed by outside firms, not directly by the hospitals where they practice.

“After having been president of the American Academy of Emergency Medicine for less than three months, I've already been personally contacted by no fewer than six different emergency physicians about being terminated without due process,” said Mark Reiter, MD, MBA, a member of Middle Tennessee Emergency Physicians.

Dr. Reiter was quick to note that AAEM strongly supports compliance with patient privacy regulations, and does not condone the Facebook posting. “As emergency physicians, when we take patients into our confidence, it's very important that they feel their privacy is going to be respected,” he said. “That being said, although I don't have the full details of the case, it's questionable from what has been reported that this was a significant privacy violation that would warrant termination.”

Based on what appears in the court filings, it does not seem that Dr. Puetz was given the opportunity to give testimony and present evidence in her defense before the termination. “Especially in a case like this, where it seems like a gray area and the significance of the violation is unclear, it's particularly important for a physician to have due process and have their case be evaluated by their peers,” Dr. Reiter said.

The fact that Dr. Puetz was an employee of ECS, rather than Spectrum, should not change her right to due process protections, he added. “If she had had the opportunity for due process and her peers felt that she should be terminated, then we would respect that decision, but it does not sound like that happened. It raises significant concerns about wrongful termination, especially in light of her allegations of anti-competitive practices. If there is any truth to those allegations, that would further underscore why due process is so important for every physician.”

The Joint Commission and the American Medical Association's code of ethics state that all physicians should be afforded due process protection, but many emergency physicians sign contracts that waive that right. “Many large contractors require that clause,” Dr. Reiter said. “And sometimes, the contracts between contract management groups and hospitals give the contractor the right to terminate employed physicians.”

A survey of nearly 400 emergency physicians conducted by members of the AAEM board last year found that just more than half — 50.6 percent — could be terminated or removed from the rotation without full due process (defined as “a right to a review before the members of the hospital medical staff”). Only about 30 percent said they had due process rights; the rest, about 18.5 percent, were unsure of their status. Eighteen percent of respondents reported that they had been terminated or removed from the schedule without a fair hearing over the course of their careers. (J Emerg Med 2013;45[1]:111.)

The authors, led by Robert McNamara, MD, a professor and the chair of emergency medicine at Temple University in Philadelphia, noted that this lack of protection also impairs emergency physicians' ability to advocate for their patients. “In this survey, only 48.1 percent of emergency physicians felt ‘very comfortable’ raising quality-of-care issues with hospital administration,” they wrote.

Gaps in due process for physicians may affect emergency medicine disproportionately, Dr. Reiter said. “When we aggressively advocate for our patients, it can be counter to what the hospital feels is in their best interests, and since we don't have our own patient base, hospitals may see us as more dispensable.”

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