EP Spearheads Arizona Anti-Retaliation Law
BY GINA SHAW
Emergency physicians and other health care professionals in Arizona had official, legal protection against retaliatory actions by their employers as of Sept. 1, even if they are employed by third-party contract management groups (CMGs) rather than the hospital itself. The groundbreaking legislation, signed March 23 by Republican Gov. Doug Ducey, was introduced by emergency physician Amish Shah, MD, a Democratic member of the Arizona House of Representatives.
Dr. Shah’s decision to introduce the bill started with the experience of a former colleague and friend at a hospital where Dr. Shah previously worked. “He was at the nurses’ station and saw a patient safety issue: A nonmedical person was assigned to watch the telemetry monitors. He reported this properly up the chain at the hospital,” Dr. Shah recalled. “The hospital turned around very shortly afterward and terminated him. But they didn’t terminate him directly. Like many emergency physicians, he was employed by a CMG. The hospital contacted the CMG, and they terminated him.”
Shortly after the physician was terminated, a patient at the hospital died under similar circumstances to those about which the EP had complained: An untrained staff member failed to recognize asystole on the telemetry monitors. “Had they investigated the actual problem instead of retaliating against me, I believe that person would be alive today,” Dr. Shah said his colleague told him.
Arizona already has a 2003 law that prevents hospitals from retaliating against employees who voice concerns about issues such as staffing, policies, or patient safety, but Dr. Shah said it didn’t take into account this new way of doing business and what’s going on in the medical marketplace today.
Dr. Shah, who had been elected to his District 24 seat representing central Phoenix and south Scottsdale in November 2018, heard more about this issue at the American Academy of Emergency Medicine’s 2019 Advocacy Day, where he was an invited speaker. “After hearing from Dr. Wanda [Espinoza-]Cruz from Florida, who was terminated after reporting to her hospital administration that inadequate physician staffing had contributed to long waiting times and a poor outcome for one of her patients, I realized that my friend’s experience wasn’t just a one-off issue,” he said.
So Dr. Shah decided to introduce a bill.
Working with experts on his staff, he crafted AZ HB2622, which stated that neither health care institutions nor CMGs can retaliate against any health care professional and that retaliatory actions include not only termination but also any adverse action, including taking physicians off the work schedule. (The law requires health care professionals to act in good faith by reporting the issue of concern to their administration first using proper channels, giving them an opportunity to respond.)
To pass the bill, Dr. Shah faced an uphill battle: He was a freshman Democrat in a state legislature controlled by Republicans with a Republican governor. He had to get buy-in from the opposing party and business interests such as hospital groups. “You have to go through what’s called a stakeholder process to have any real chance of passing the bill, meaning that you invite people affected by the bill to the table, including people who are likely to be your opponents, and you have to hear them out,” Dr. Shah said.
One of those stakeholders was a lobbyist who represented all the major hospital groups in Arizona. “We sat down with her, and said, ‘This is what we’re considering,’ and she said, ‘OK, this is actually in line with our values, and we’re not going to oppose it; however, we do have concerns about some of the language,’ and asked for a few changes with regard to hospital liability,” he said. “We did not object to those changes, and we were pleasantly surprised.”
Getting the hospital groups on board was a big win, but campaigning for support in the legislature still took intensive work. “Because of the sensitive nature of the story, we had my friend who went through this meet-behind-the-scenes with lawmakers instead of giving public testimony,” Dr. Shah said. “He spoke with the House and Senate leadership and some of the majority party staff, and I think that was key to the fact that the bill passed with solid bipartisan support.” He also partnered with the Arizona Medical Association.
The COVID-19 pandemic postponed the Arizona legislature’s work on anything that wasn’t critical or COVID-related, so passage was delayed until this past March. “This is a very big deal,” Dr. Shah said. “It’s one of AAEM’s big priorities, and when I speak to emergency physicians locally and nationally, people are very enthusiastic.”
During the course of the pandemic, another retaliatory firing of an emergency physician underscored the need for such protections. Ming Lin, MD, was fired from his position at St. Joseph Medical Center in Bellingham, WA, in March 2020 after advocating for better respiratory protections, quicker lab turnarounds, and more restrictions for visitors. (EMN. 2020;42:1; https://bit.ly/3f8RXfX.) Dr. Lin, who had worked at the hospital for 17 years, is now suing PeaceHealth, which operates PeaceHealth St. Joseph Medical Center, and TeamHealth, the contract management group under which he was contracted to work.
“This is a critical problem in emergency medicine,” said Robert McNamara, MD, an AAEM past president and a professor and the chair of emergency medicine at the Lewis Katz School of Medicine at Temple University in Philadelphia. (AAEM has called for an investigation of Dr. Lin’s situation by the state Attorney General and the State Board of Medicine. [AAEM Position Statement. March 28, 2020; https://bit.ly/3aFn6Fr].) He noted that HR 6910, federal legislation to guarantee due process to emergency physicians—also introduced by an EP, Rep. Raul Ruiz, MD (D-CA)—is making its way through Congress.
“AAEM is putting its weight behind the national bill, but there’s no reason for people not to try to do the same thing at their state level,” Dr. McNamara said. “I’m not aware of other states that have put forward legislation like this yet, but when we see success in one state, folks in other states often do the same thing.”
Dr. Shah’s achievement should be inspiring to other emergency physicians, Dr. McNamara said. “There has been a sense of fatalism that this is all a big machine, and we can’t stop anything, but the newer generation of emergency physicians is really getting stuff done. They see the corporate takeovers, the punitive contracts, and less ability to be in a physician-owned group, and they’re stepping up and getting more active—running for office, getting involved with state medical societies, and being more involved in their states. It’s very encouraging.”
Dr. Shah, who also serves on the board of the Arizona College of Emergency Physicians, has drafted a resolution to bring to national ACEP this month calling for the Arizona bill to serve as model legislation for other states. “Corporate entities have a lot of power, and many EPs feel like the odds are stacked against them,” he said. “We in emergency medicine have the highest rates of burnout. So to get a win like this, enacting policy that supports the physician doing the right thing, feels very good for many of us.”
Ms. Shaw is a freelance writer with more than 20 years of experience writing about health and medicine. She is also the author of Having Children After Cancer, the only guide for cancer survivors hoping to build their families after a cancer diagnosis. You can find her work at www.writergina.com. Follow her on Twitter @writergina.