by Greg Care
No matter where you are in your training, a dismissal (or suspension, non-renewal, non-promotion, or even probation) threatens the significant investments of time and money you have put into your medical career. Often, residency and fellowship programs make mistakes in reaching these high-stakes decisions that can be remedied through due process appeals, or even legal action, if necessary. What you do next can make a big difference, so we have compiled a set of 5 steps that we believe can be helpful (please note that these guidelines are not legal advice and do not form a lawyer-client relationship between the reader and the author or his firm):
Find out about your program’s due process appeal policy and request a timely appeal.
Whether the program is accredited by the ACGME or the AOA (pending the Single Accreditation System), it is required to provide a means by which a trainee can seek review of certain disciplinary decisions. These policies vary greatly among programs on important details, including what kinds of actions can be appealed, the deadline to request an appeal, and the form your request must take. Because the deadline for requesting an appeal is usually very short (in one case, just 72 hours after the occurrence of the action being appealed), it is important to obtain information about this process quickly. Your GME office should be able to provide a copy of the policy and answer questions about the procedure.
If you have decided to file an appeal, it is important to do so before the deadline. Most programs have a statement in their due process policies that it is assumed a resident or fellow concedes that the action taken was correct if an appeal is not submitted timely. As we have written about in previous posts, losing the opportunity to appeal means missing out on a significant opportunity to improve your situation.
Gather and organize the documents relevant to your situation.
The specific documents that are critical to your case will vary, but the following two categories of materials are usually important: general policy-type documents and discipline-specific documents.
General policy-type documents include your program’s house staff manual and/or GME policies (the whole set, not just provisions relating to the appeal process), your training contract, and any goals & objectives or curriculum statements setting forth trainee and/or program expectations.
Documents that relate to the specific case will include things like rotation evaluations; any annual evaluations submitted to the specialty board or other entities; memos, letters, or emails relating to your performance (good or bad) and/or reasons for discipline; and evidence of remediation efforts. In some jurisdictions, you may have a right to request your entire personnel file, which may be more extensive than the credentialing or academic file maintained by the program.
Don’t dig the hole deeper.
Residents and fellows whose careers are on the line can be understandably emotional about the possibility that a decade or so of sacrifice may be for naught if the proposed discipline is carried out. However, it is important not to make matters worse by reflexively saying or doing something that could add to the program’s justification for its action. Since “professionalism” is one of the ACGME’s six core competencies, a misstep in reacting to the news of disciplinary action could either create a new basis for discipline or exacerbate existing claims of unprofessionalism.
Exercise great caution when asked to sign “last chance” agreements, or in weighing offers to resign in lieu of dismissal or non-renewal.
Programs can often make the situation seem dire and the prospects of appeal hopeless right before they offer a seemingly better way out. These offers can involve things like a “last chance” agreement or something similar that limits the rights a resident might otherwise have in exchange for a purportedly more lenient approach to an alleged deficiency, or an offer to let a resident resign and perhaps to help find a new position. These offers are not always in the resident or fellow’s best interest. Unfortunately, many programs place deadlines on these offers that make it difficult or impossible for anyone under those circumstances to make a careful and thoughtful decision. Nonetheless, it is important to know that once accepted, these offers may seriously curtail your rights.
Seek competent legal counsel.
There are important considerations in each of the preceding four steps, as well as the analysis of what arguments you may have in your favor, that should be assessed by an attorney who has experience in these matters. Every situation is unique, and should be assessed with an eye towards the details. We have been regularly representing residents and fellows for nearly a decade in matters large and small. We know which strategies can provide leverage and opportunities for success. Contact us to see how we might be able to put that experience to work for you.