By Greg Care

It is not often that issues affecting resident physicians reach the highest appellate courts, but that is what happened when the Massachusetts Supreme Judicial Court ruled recently that Dr. Bernard Bulwer, the plaintiff in in Bulwer v. Mount Auburn Hospital, __ N.E.3d __ (2016), must be allowed to argue to a jury that discrimination was the reason his contract was not renewed and he was later fired.

The decision recites the disturbing and all-too-familiar experience of many residents who receive excellent reviews on one rotation, only to receive mixed or uniformly harsh evaluations in the next.  Dr. Bulwer met with his advisor, who conferred with the Clinical Competency Committee (CCC) to come up with a plan for improvement that consisted of meetings that never materialized.  Later, Dr. Bulwer received a particularly negative evaluation from another doctor that prompted a CCC meeting in which it was decided that Dr. Bulwer’s contract would not be renewed.

Dr. Bulwer, a PGY-1 in the internal medicine program, requested an appeal of his non-renewal through his institution’s due process procedure, but the committee that was convened to review the matter did not include the peer resident as was required by the due process policy and Dr. Bulwer was excluded from two of the committee’s three meetings.  The committee voted to uphold the non-renewal.  Just over a week later, Dr. Bulwer was fired for patient safety concerns that had allegedly arisen in the preceding weeks.  Dr. Bulwer asked for further review that he then abandoned in favor of suing the program.

The trial court ruled that he did not have enough evidence to prove that he was the victim of discrimination or that the program had violated its contract with him and granted summary judgment in favor of the program, preventing a trial.  However, an intermediate appellate court disagreed and then the state’s highest court accepted the case for review.

Dr. Bulwer, a “black male of African descent who is originally from the Central American country of Belize,” had alleged that his residency program violated Massachusetts state law by terminating him because of his race (and possibly also national origin, although the decision is not clear on that).  At the heart of the appellate court’s decision is its reliance on five categories of evidence that permitted it to reject the program’s argument that it had instead fired Dr. Bulwer because of poor performance.

First, the court noted that the negative evaluations of Dr. Bulwer were counterbalanced by equally positive evaluations, including some that praised him on points that the program had cited as deficiencies that justified his termination.  Second, there was evidence that there were at least three non-black interns who had similar issues as Dr. Bulwer, but were not subjected to the same discipline and instead were given an opportunity to remediate.  Third, a black attending in the hospital provided evidence that three white doctors were not promptly disciplined by the hospital and were only called to task at the behest of patients or other hospitals, and described the failure of the hospital to discipline an employee who left white supremacist material in a break room.  Fourth, several attendings made comments to Dr. Bulwer that, by themselves, were not indicative of bias, but could be interpreted that way in the preceding context.  Fifth, the court noted that the program failed to follow its due process procedures, which in the preceding context, contributes to an inference that bias was involved.

The court also concluded that although the nonrenewal decision was reviewed by a disinterested “third party” in the due process committee, that committee was relying on biased and slanted information which negates any insulation against bias that process might have afforded.  And finally, the court ruled that Dr. Bulwer had provided enough evidence to permit him to argue to a jury that the program had violated the residency contract regarding the lapses in the due process procedure and other supportive obligations.

This case is rare not only in its having reached a state supreme court, but it is one of just a few examples of a resident succeeding in reaching a jury with claims of discrimination and breach of contract by a training program.  This is excellent news for Dr. Bulwer, but certainly not the end of the fight since trial still awaits if a settlement is not reached.  And I should note that this fight has now been going on for close to a decade since Dr. Bulwer was fired in 2006.  The personal and professional toll this takes must be profound.

There is no doubt that some occasions call for full pursuit of all legal options, while some can be resolved internally, either through “due process” or negotiation or a combination thereof.  It is advisable for residents to get counsel involved sooner than later to evaluate if it is possible to avert epic battles like this.  My colleagues and I have experience dealing with these situations, so please do not hesitate to contact us to see if we may be able to help.

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