What Rights Do Resident Physicians Have? Ways Resident Physicians Can Protect Themselves When Facing Disciplinary Action By Their Residency Program

by Andy Levy and Greg Care

Andy LevyGreg Care

By the time you’ve graduated from medical school and matched into a residency program or scrambled into one of the few positions left, you’ve invested a lot of your time, your money, and your life into your career.  This is just as true for post-graduate fellows.  For those reasons and many others, it can be devastating when you’re threatened with reprimand, probation, suspension, non-renewal, or termination from your program.  Dealing with the allegations being made against you can be personally and professionally devastating on top of balancing your already demanding schedule, but there are a number of ways you can protect yourself.

In some instances, usually if the dispute is minor, you can address the issue informally by seeking the advice and support of a mentor or other experienced ally within the institution.  Because residency, and even fellowships to some degree, are premised on the idea of providing instruction and guidance to physician trainees, Program Directors can sometimes be persuaded to view missteps as “teachable moments” rather than occasions for discipline.  A respected ally may be able to help make this pitch.

In any case, you should refer to your institution’s policies on discipline for house staff as well as your employment contract.  Because most programs are accredited by the Accreditation Council for Graduate Medical Education (ACGME), they are required by ACGME guidelines to provide a minimum amount of due process to residents and fellows when they are subject to disciplinary action.  That means that the program must give you the opportunity to present your side of the story, in most cases, to a panel consisting of members of the medical staff who do not have a conflict of interest regarding the matter at issue.  That panel will then decide whether the discipline to be imposed is appropriate or not.  In most cases, however, the panel’s recommendation is just that – a recommendation; often the Chief Medical Officer or some other member of the administration is free to accept or reject the panel’s findings.

Because most disciplinary decisions are based on a resident’s perceived shortcoming in one of the six ACGME “core competencies” (patient care, medical knowledge, practice based learning and improvement, systems based practice, professionalism, and interpersonal skills and communication), it is a good idea to become familiar with what the ACGME has written about them.  Particularly helpful is the Program Director Guide to the Common Program Requirements, which includes an informative “explanation” of the competencies and, in some instances, how the ACGME views matters of discipline in those areas.  For example, in the explanation of “professionalism,” a catch-all competency frequently cited as a basis for discipline, the ACGME has noted that “[r]emediation is important for all the competency domains, but may be especially critical in the domain of professionalism. It is challenging to teach and assess, and lapses may not be noticed until habits are formed that are then more difficult to address.”  That is to say, Program Directors should lean towards constructive measures to teach wayward residents proper conduct, rather than punish them with disciplinary sanctions.  Firing a resident should be a last resort.

With a better understanding of the core competencies, it is usually easier to put into perspective the issues facing you and figure out how to build the case that you should not be subject to the discipline sought to be imposed.  You may find support for your arguments in your evaluations (both formative and summative); letters of support from nurses, co-residents, and attendings; awards or other unsolicited recognitions of your attributes; and test scores.  Keep in mind also, that residency programs typically maintain more than one file on members of the house staff.  Often there is a “credentialing” file in addition to an academic file.  There may also be a “personnel” file maintained by the school or hospital’s HR department.

Even with this knowledge, it can be intimidating to approach this process without support.  Brown, Goldstein & Levy, LLP attorneys Andy Levy and Greg Care have provided many medical and nursing students and resident physicians with seasoned advice regarding their disputes with their institutions.  Please contact us to see what we can do to help with your situation.