By Greg Care

Today, I am revisiting a topic that continues to be discussed and applied in legal disputes over corrective or disciplinary actions imposed by residency programs: academic deference. As I’ve written about before, some courts get it right and others get it wrong.

Residents and fellows all across the country face corrective or disciplinary actions every day. I devote most of my practice to guiding and/or advocating for trainees in these situations. A decade-and-a-half and hundreds of cases’ worth of experience have shown me a wide spectrum of scenarios, ranging from well-intentioned programs trying to help their trainees to bad actors with discriminatory intent. No matter the programs’ motivations, there can be valid disagreements over the proposed corrective action for a variety of reasons. And, since many corrective or disciplinary actions can have career-altering consequences, it is no surprise that these disagreements become the subject of litigation.

Within that litigation, it is very common for the defendant residency program to argue that the case must be dismissed because courts should not interfere with academic decisions. On the surface, this deference to the program makes some amount of sense: if a residency program abiding by its policies and acting in good faith decides, even subjectively, that a resident is underperforming and needs to be corrected or disciplined, judges and juries without the relevant medical training may not be the best arbiters of what is right or wrong. I say “some sense,” because, as I have noted before, juries frequently decide medical malpractice actions that require them to resolve competing arguments about whether certain medical acts or omissions were within the standard of care. That kind of decision making is very similar to the resolution of disputes about whether a resident’s performance in a medical training program is so deficient as to justify disciplinary action. Indeed, if residents can be defendants in medical malpractice actions, why can’t they be plaintiffs in academic malpractice ones? At the end of the day, if I indulged my inner cynic, the doctrine of academic deference really amounts to little more than a judicially-created docket management device.

But let’s not stop there. Let’s look at the legal underpinnings of the academic deference doctrine and, to do that, we’ll examine a recent case that I think got this wrong. Quick disclaimer: I was not involved in the case and have reviewed only the court’s recent opinion, so I don’t know all the details.

A few weeks ago, in Hamadneh v. Grand Strand Regional Medical Center, LLC, a federal district court in South Carolina denied a general surgery resident’s motion for preliminary injunction to stay in his residency program pending the outcome of a trial over the legal validity of his termination. To the judge’s credit, he initially granted a temporary restraining order to keep the resident in place pending the outcome of a more fully briefed preliminary injunction proceeding. These preliminary measures were important because the resident was in the country on a visa that would be revoked if he lost his position.

The resident sued on the following bases as described by the Court: “(1) breach of contract and failure to adhere to mandatory procedures incorporated into the Graduate Medical Education Trainee Agreement, and (2) race and ancestry discrimination and retaliation in violation of 42 U.S.C. § 1981.” As we’ll discuss below, academic deference is inappropriate when resolving these types of claims. In response, the HCA-sponsored residency program claimed that it attempted remediation and performance problems persisted. The Court’s opinion did not describe whether or how the program might have disputed the claims of breached procedures or discriminatory treatment other than to repeat the claim that it was the program’s academic judgment that the resident was not performing adequately.

The dominant theme in the Court’s rather short, five-page decision was that academic deference prevented the resident from winning. Indeed, the analysis was kicked off by the following statement: “Where, as here, the requested relief would require judicial interference with academic decision-making in a professional training program, courts must also apply the substantial deference mandated by Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214 (1985), and its progeny.”

Those statements introduce my first critique. And, if any member of the judiciary ever happens to read this blog and can take away only one thing, it is the following humble offering: Ewing does not mean what you think it does, and it does not belong in most adjudications of residency disputes. I will explain.

Ewing involved a student who was dismissed from a combined undergraduate/medical degree program at a state university due to a history of performance issues and a recent poor score on the predecessor of the USMLE Step 1. The student sued on several grounds, including an issue that became the sole focus of the U.S. Supreme Court’s decision: violation of substantive due process under the 14th Amendment.

That focus on substantive due process is key. Simply put, Ewing was about constitutional due process only and, thus, it is inapposite to addressing legal claims that have a much lower threshold (e.g., contractual, statutory, or common law rights). It is well recognized that it takes a lot for alleged wrongdoing to rise to the level of a constitutional violation, especially in the realm of substantive due process where the Supreme Court has been very restrictive on what qualifies. See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 240 (2022).

So, when a student like the one in Ewing claims that dismissal from an educational program violates the Constitution, there is at least some reasonable basis for a court to say, as the Ewing Court did, that it “may not override [a genuinely academic decision] unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” 474 U.S. at 225. In other words, there’s a high bar for making exceptional claims.

Garden variety breach of contract and discrimination claims are in a much different, and less demanding, league. In the former case, judges and juries look at what was promised and whether it was provided. They interpret run-of-the-mill written agreements, not the founding document of our nation. In the latter case, albeit somewhat more complex thanks to a judicially-created gauntlet, the question comes down to one we entrust juries to decide every day: evaluating the competing evidence and deciding issues of credibility and intent.

A leading jurist, Hon. Richard Posner, articulated the point well: “Courts of appeals have been careful not to import [Ewing’s] formulation of the deference owed to academic decisions when analyzing allegations under the discrimination statutes. Although such a formulation rests comfortably in the context of substantive due process analysis, the Supreme Court has noted specifically that such a formulation applies only to ‘legitimate academic decision[s]’ and that academic decisions that are discriminatory are not legitimate.” Novak v. Bd. of Trs. of S. Illinois Univ., 777 F.3d 966, 975–76 (7th Cir. 2015). His opinion went on to say that “[a]cademic institutions are in no way exempt from our discrimination laws. Nor are there separate and more lenient standards for them.” 777 F.3d at 976. This viewpoint is entirely consonant with Ewing’s own acknowledgment that that case did not involve unfair procedures or bad faith. 474 U.S. at 225 (“It is important to remember that this is not a case in which the procedures used by the University were unfair in any respect; quite the contrary is true. Nor can the Regents be accused of concealing nonacademic or constitutionally impermissible reasons for expelling Ewing; the District Court found that the Regents acted in good faith.”). The same can easily be said for matters of contract.

So, respectfully, the Hamadneh Court went astray when it rejected the resident’s contract claim on the basis that “[Ewing’s] demanding standard is not met by disagreement with . . . allegations of procedural noncompliance.” It is difficult to understand how the high threshold for constitutional claims precludes a court from examining the very essence of a breach of contract claim: whether readily identifiable procedures were followed. Dr. Hamadneh appears to have claimed that his program deviated materially from the due process procedures guaranteed to him in his training contract. The resolution of that issue does not implicate a matter of “professional judgment,” as the court claimed; it is a simple matter of whether the residency program followed its own contractually-enforceable rules.

The court’s avoidance of the contract issue is all the more troubling to me in light of my experience that residency programs unilaterally draft the contracts and policies and are all too happy to invoke them when it suits their interests, including dismissing residents. The ACGME’s requirement that residency programs have contracts with their residents and define and adhere to due process policies is one of the few things that gives residents a lever in an otherwise very unbalanced power dynamic.

One might note that a preliminary injunction is an exceptional remedy, so the burden on the resident seeking one is higher. This is true, but beside the point. If the residency program violated its written policies governing the dismissal of a resident, that dismissal is arguably invalid. The court did not find that the facts or the law did not support the claimed violation. Instead, it dispensed with the claim on an irrelevant basis without confronting the claimed breach. And, in the process, it added to the library of court decisions that perpetuate a misunderstanding and expansion of academic due process to the detriment of residents and fellows who are already at such a disadvantage in disputes like this.

If you have questions regarding an issue in your residency, please contact us today to see if we can assist with your particular circumstances.

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