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Special Report: Fired, Blackballed, and Burned Out EPs Struggle When Denied Due Process

Sorelle, Ruth MPH

doi: 10.1097/01.EEM.0000526858.53751.cb
Special Report

A locum tenens physician was barred from the hospitals where he had practiced emergency medicine for more than 20 years, and he couldn't find out why. An emergency physician who found herself in a disagreement with a nurse was dropped from the ED schedule. Another physician sought to find out what was being billed in his name and was stonewalled.

What these doctors have in common is the lack of due process that puts their jobs at risk when they question the actions of the hospitals at which they work or the activities of the groups that run their practices. Sometimes, they find themselves summarily fired. Others discover that they are no longer being scheduled for shifts. Either way, the issue is one that makes it increasingly difficult for emergency physicians to advocate for their patients and themselves, experts say.

The American Academy of Emergency Medicine ( since its founding has beat the drum long and loud for due process. Many contracts presented to emergency physicians contain language that allows physicians to be terminated without cause and without giving the emergency physician the right to answer any charges.

Physicians consequently live under the threat of dismissal if they question actions by the hospital or the group, and it impedes their ability to speak up on behalf of their patients, according to AAEM. They also face dismissal if they report problems of fraud or abuse, and often they are threatened even if they ask for information about what has been billed in their names.

“For us, it's a no-brainer,” said Robert McNamara, MD, a former president of AAEM. “A physician who cannot speak for patients or about financial abuses has the sword of Damocles hanging over his or her head. They can be terminated without cause at any time. You can lose your job. It's a cancer in our specialty. The key is, where are the consequences for the people who are telling us we cannot have or do this? We rely on external bodies.”

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AAEM Survey

AAEM sought help from the Joint Commission, which accredits health care institutions, he said, and the organization said the rules come from third-party groups, not the health care institutions themselves. “This allows the hospital to manipulate doctors to do what they want,” said Dr. McNamara.

AAEM surveyed emergency physicians about the lack of due process, financial pressures, and the ability to advocate for patients, and found that 197 (50.6%) of the 389 respondents said their employer could terminate them without full due process and that 216 (55.5%) reported that hospital administration could order their removal from the clinical schedule. (J Emerg Med 2013;45[1]:111.)

Raising quality-of-care issues was uncomfortable for 11.6 percent of them, and 7.2 percent said doing so would be a real threat to their jobs, according to the survey results. A total of 12.3 percent reported either minor or major pressure to admit patients they thought could be treated on an outpatient basis. One-third of the physicians also reported either minor or major pressure to discharge Medicare patients whose treatment might not be reimbursed if they were admitted. More than 15 percent reported they had been pressured to discharge or transfer uninsured or medical assistance patients.

Seventy (18%) physicians reported they had been fired or removed from the clinical schedule without a fair hearing. Twenty-five (6%) said they had been threatened with termination because they raised issues about quality of care and 27 (7%) because they had made financial inquiries.

Physician rights to due process come from the U.S. Constitution—the Fifth Amendment, which guarantees federal government due process, and the Fourteenth Amendment, which guarantees due process from state and local governments. The Health Care Quality Improvement Act of 1986 requires that physicians practicing in private hospitals that receive federal funds receive a fair hearing or due process, as do Joint Commission standards. “Despite these legal requirements of due process, it is apparent from this survey that many emergency physicians do not believe they possess this protection,” the study authors wrote.

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Out in the Cold

Van Steven Mask, MD, a locum tenens physician who had practiced emergency medicine around the nation since he graduated from his family practice residency in the late 1970s, said he did not receive due process when he suddenly found himself frozen out of practice in the Texas and Louisiana hospitals where he had settled, according to a lawsuit he filed. It turned out that the administrator of Coon Memorial Hospital in Dalhart, TX, had sent a negative letter to the group that hired him and to hospitals that asked about his credentials, according to Dr. Mask's lawsuit. Suddenly, Dr. Mask said he found that he was being taken off the schedule in hospitals where he had practiced previously even though his practice and abilities were never questioned.

Coon Memorial's chief executive, Leroy Schaffner, apparently had written a letter on June 10, 2010, to the group that placed Dr. Mask, identifying him as one of the company's eight physicians who had quality and liability issues identified by the hospital's ER/trauma committee, Dr. Mask's suit said. Although described as a peer-review committee, that body was made up of one physician and a few staff members associated with the emergency department, the suit said, noting that Dr. Mask was never approached about quality issues or liability issues. Even though the Health Care Quality Improvement Act of 1986 requires that doctors receive notice of problems and a hearing before a peer-review group, Mr. Schaffner said, “[W]e did not give him any notice that I know of,” according to the legal documents.

Dr. Mask said in his lawsuit that he had lost the opportunity to practice at many hospitals. “For the first time in his medical career, hospitals were inexplicably canceling his contracts,” the suit noted.

The decision to find out what happened cost him $200,000 and took more than five years. Coon Memorial had sent negative letters to other hospitals who requested information about Dr. Mask, according to the lawsuit, and he said he demanded that the hospital stop sending them. But on July 14, 2011, Mr. Schaffner wrote that Coon Memorial was “displeased with most of the physicians that [the placement company] sent to our facility and have canceled our contract. As a contract physician, we reserved the right to request that a physician does not return to our facility.”

Dr. Mask settled out of court because Coon Memorial was considered a governmental entity as part of the Dallam-Hartley Counties Hospital District, and therefore enjoyed certain statutory protections. The settlement was private, but Mr. Schaffner and Coon Memorial were required to correct Mr. Schaffner's July 10, 2010, letter indicating that the ER/trauma committee of Coon Memorial Hospital had found quality and liability issues with Dr. Mask's care. “Your name was erroneously included in a list with seven other physicians,” Dr. Schaffner wrote. “On further investigation, the Hospital determined you had no such quality or liability issues and that the care you provided met appropriate standards. We apologize for any trouble or inconvenience the July 10, 2010, letter may have caused.” None of the other seven physicians complained or filed suit.

Dr. Mask said no amount of money or number of letters can make him whole again. “I'm at a point where I want joy out of life,” he said. “Do I want to waste this much time and energy on this?”

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No Rose-Colored Glasses

Lon Young, MD, another Texas emergency physician, had been in an independent group for 11 years when the owners decided to sell to a large firm. “In preparation for the sale, to make the company more appealing/valuable at sale, we received a cut in reimbursement,” he said, adding that cost-saving measures then began to be implemented. When a new, large hospital was about to open within a half mile of their hospital, members of the group anticipated another cut in reimbursement.

They called a meeting to discuss concerns with the group, and offered to take a 12 percent pay cut. They asked for a guarantee that this would be the lowest their salaries would go. The group's representative refused that, however, saying “there was no money in the contract to begin with.”

When Dr. Young challenged that and asked for numbers to justify that assertion, he said the manager told him, “You aren't privy to that type of information. If you want to see those types of numbers, perhaps you should take a million dollar loan and start your own management group.”

Dr. Young requested the previous 12 months' bank statements of the joint account he had with the management group, but he said he never received the information. He said he intended to sue for access, but was offered another job opportunity. “The debacle was good for me because it angered me just enough to cause me to peek my head above the water and see the world of contract ER medicine for what it was,” he said.

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Due Process and Burnout

Two run-ins with hospital administrators convinced Louise Andrew, MD, JD, that she should pursue another career in the medical field. In one case, she said she got crosswise with a head nurse, who went to the hospital administrator. The upshot was that the administrators said they did not want Dr. Andrew working at the hospital, she said, and she received no explanation. She said she had a job at another hospital, so she let it go.

“I've seen many people blackballed when they are fired from an institution,” she said. In another case, she said she took the opportunity to leave the field when she was working with a small group and found that she did not want to work any of the shifts available to her. When she said that, they said they would cut her off, Dr. Andrew said. “It was as good an opportunity as any to get out,” she said.

These kinds of situations cause burnout, she said. “You are like a hamster in a cage,” she said. “You have to mind your ‘ps’ and ‘qs.’”

Dr. McNamara and the leadership of AAEM are trying to correct the situation, hoping to provide the federal Centers for Medicare and Medicaid Services with reasons to act. He and a few others are meeting with CMS over due process, trying to make assurance of due process part of Medicare and Medicaid regulations and to require it as a condition for accepting payments from CMS. “They should not allow physicians to be denied due process because of third-party contracts,” he said, adding that he hoped the information in the AAEM survey will give the agency the backing it needs to make that kind of change.

Dr. McNamara said he hopes that CMS will recognize the importance of due process. “The physician community is not doing well. There are high burnout rates. Physicians are under corporate and regulatory mandates, and we are facing physician shortages. Everyone is talking about getting out. Almost everyone goes into medicine to act on behalf of your patients. This destroys your whole reason for joining the profession. It is part of the whole tearing down of the physician-patient relationship.”

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