ER resident filed lawsuit that she was discriminated against for morbid obesity

[wamcp]

The resident weighed over 400 lb

Is Obesity a Disability Under Texas Law?

In Texas, courts have held that obesity in itself may be a disability in some cases, even without evidence of an underlying health condition.

www.shrm.org

https://www.txcourts.gov/media/1456743/220179.pdf

On Jan. 31, 2022, in Texas Tech University Health Sciences Center-El Paso v. Niehay, the Eighth Court of Appeals of Texas considered the case of Dr. Lindsey Niehay. Dr. Niehay, an emergency medicine resident who alleged that she was unlawfully discriminated against because her morbid obesity was regarded as a disability. The discrimination started when one of Dr. Niehay's supervising physicians reported that she struggled with a procedure because of her "body habitus." The supervisor commented that Dr. Niehay "was sweating profusely, dyspneic (short of breath) and had to take multiple breaks because of her inability to stand and at times bend over to gain the best access [to the patient]." Despite another supervisor reporting that Dr. Niehay had performed well during a long procedure and had "good potential," the residency program director sought to discipline Dr. Niehay "due to patient safety concerns."

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[JacobMcCandles]

Turns out being morbidly obese doesn’t work for a physical job.

Also, would a 400 pound doctor inspire confidence in you? Not for me.

 

[BoardingDoc]

The resident weighed over 400 lb

Is Obesity a Disability Under Texas Law?

In Texas, courts have held that obesity in itself may be a disability in some cases, even without evidence of an underlying health condition.

www.shrm.org

https://www.txcourts.gov/media/1456743/220179.pdf

On Jan. 31, 2022, in Texas Tech University Health Sciences Center-El Paso v. Niehay, the Eighth Court of Appeals of Texas considered the case of Dr. Lindsey Niehay. Dr. Niehay, an emergency medicine resident who alleged that she was unlawfully discriminated against because her morbid obesity was regarded as a disability. The discrimination started when one of Dr. Niehay's supervising physicians reported that she struggled with a procedure because of her "body habitus." The supervisor commented that Dr. Niehay "was sweating profusely, dyspneic (short of breath) and had to take multiple breaks because of her inability to stand and at times bend over to gain the best access [to the patient]." Despite another supervisor reporting that Dr. Niehay had performed well during a long procedure and had "good potential," the residency program director sought to discipline Dr. Niehay "due to patient safety concerns."

I don't understand this. There are certain jobs where you can either do the job or you can't. If you have no arms, you can't be an emergency medicine doctor because you can't do any procedures. That's not discrimination, that's just reality.

If you weigh 400 lbs and that prevents you from being able to physically perform the various procedures that we are required to do, you can't be an ER doc. Again, that's not someone discriminating against you ... You are physically unable to do it.

Edit: just realized her complaint was that they said she was disabled because of her obesity and that made firing her ok because of the reasons I listed above. Even if she weren't disabled, she still apparently can't do the damn job for the same above reasons. Heads, she loses. Tails, she loses. No idea what this suit was supposed to accomplish.

 

[cyanide12345678]

ermmm...serious question.

How do you reduce a hip if you're 400 lbs?

 

[Rendar5]

ermmm...serious question.

How do you reduce a hip if you're 400 lbs?

Call the orthopedist. Lol

 

[AlmostAnMD]

Rofl

It's hard not to read that complaint and not laugh at the situation.

I'm not the most politically correct guy around. If a manatee waddled into a room to do a procedure and struggled at all it would be hard not to say something.

Also, agree with whoever said it first. A morbidly obese doctor telling me how to live healthier is so ironic I'd deliberately ignore their advice and do the opposite. Who would believe them?

I'm not saying well all need chisled abs but....actually we all need chisled abs. If not us, then who? Ortho?

 

[medninja]

ermmm...serious question.

How do you reduce a hip if you're 400 lbs?

About as well as if you’re 110lbs.

This is a very slippery slope. We all know obesity is a welcome mat for discrimination. If you doubt it, look at the posts above. There was an article when I was a medical student that scored the quality of life of an obese child as similar to that of a child with cancer. Mind you, these are children and even the most ardent among us ought to be able to recognize that their obesity isn’t solely their “fault.”

The big give away that the article provides to support discrimination is the the residency invoked professionalism as a cause for their actions. Fat or otherwise, we’re all at risk for this abuse. I know it’s anecdotal, but I’ve seen it so many times it’s clearly a legal playbook: identify a physician you’d like to fire, label them as unprofessional, involve the board, let them shoehorn the provider into an impairment diagnosis (pot, etoh, depression, whatever) and celebrate your success.

I’m built like a caveman, and have been called a “Russian gymnast” more than once. It’d take two hands to count the number of joints, mostly hips, but also shoulders and elbows, that I’ve had to reduce for colleagues, male and female. I’ve come into a day shift at a critical access hospital and have been signed out a native hip dislocation that waited hours for a less petite provider. She told me the pelvic fracture made reducing impossible.

The other sad thing is the employee is working for an institution that’s charged with bettering them. It purportedly justified the poverty wages I received as a resident. They’re also uniquely situated to help as a medical facility. Instead, they find her unprofessional.

 

[Apollyon]

Reminds me of a story from residency: Duke was at the forefront of everything - just ask them, they'll tell you (or, even if you don't ask). Cards had a pt from an outside hospital that needed cath, bit weighed 700lbs. Duke attending contacts cath table maker, gets the failure point, IIRC, 2800lbs. So, cards attending puts 700lbs of cards fellows on the table (took 3 of them), and cantilevers it all around. Then, it became known that Duke had a 700lb cath table (despite it being the same one everyone else has).

Àpropos to nothing, but, whatevs!

 

[ScepticSkeksis]

At least she has a disability that is potentially correctable. They should give her a 6-month leave of absence during which she gets a trainer, dietician and loses 100 lbs.

 

[miacomet]

Just want to point out that actual competitive specialties such as plastics and ENT aren't matching 400 pound residents.

 

[Siggy]

ermmm...serious question.

How do you reduce a hip if you're 400 lbs?

Put your weight into it... of course.

 

[medninja]

Just want to point out that actual competitive specialties such as plastics and ENT aren't matching 400 pound residents.

Not sure that bigotry is a badge of honor.

 

[PikminOC]

The resident weighed over 400 lb

Is Obesity a Disability Under Texas Law?

In Texas, courts have held that obesity in itself may be a disability in some cases, even without evidence of an underlying health condition.

www.shrm.org

https://www.txcourts.gov/media/1456743/220179.pdf

On Jan. 31, 2022, in Texas Tech University Health Sciences Center-El Paso v. Niehay, the Eighth Court of Appeals of Texas considered the case of Dr. Lindsey Niehay. Dr. Niehay, an emergency medicine resident who alleged that she was unlawfully discriminated against because her morbid obesity was regarded as a disability. The discrimination started when one of Dr. Niehay's supervising physicians reported that she struggled with a procedure because of her "body habitus." The supervisor commented that Dr. Niehay "was sweating profusely, dyspneic (short of breath) and had to take multiple breaks because of her inability to stand and at times bend over to gain the best access [to the patient]." Despite another supervisor reporting that Dr. Niehay had performed well during a long procedure and had "good potential," the residency program director sought to discipline Dr. Niehay "due to patient safety concerns."

So she's suing for money or to stay in the residency program?

 

[emergentmd]

If obesity is considered a disability, then our nation is in the toilet.

If there is a code on the 8th floor and elevator is busy/broken, I run up 8 stairs just about as quick as the elevator. Said ER doc would break down after the 2nd stairs.

How is this any different than if I broke my arm and can't intubate?

She is not fit to do the job. An Er doc has to be fit.

 

[hundreddaysoff]

I wonder if disability insurance would pay out in this situation?

 

[Rendar5]

If obesity is considered a disability, then our nation is in the toilet.

If there is a code on the 8th floor and elevator is busy/broken, I run up 8 stairs just about as quick as the elevator. Said ER doc would break down after the 2nd stairs.

How is this any different than if I broke my arm and can't intubate?

She is not fit to do the job. An Er doc has to be fit.

OK, now that’s just being a little bit ridiculous. You do not need to be in good physical shape to be an ED doc. I do not run up stairs to codes. I take the elevator and I walk. (Unless the elevator is out, I’d be happy to walk up a flights of stairs if needed). And I work with perfectly good docs I. Their 60s who are clearly out of shape but can still do their jobs and all procedures.

Based on what I read this resident clearly needed to be fired as she wasn’t just having issues with procedures but with actual professionalism. Not only did she make other people do her work but bailed when they did it for her and didn’t bother to see patients when alerted to potential issues by nursing. inability to perform required procedures is an issue if you’re obese or thin.

 

[JacobMcCandles]

I’m built like a caveman, and have been called a “Russian gymnast” more than once. It’d take two hands to count the number of joints, mostly hips, but also shoulders and elbows, that I’ve had to reduce for colleagues, male and female. I’ve come into a day shift at a critical access hospital and have been signed out a native hip dislocation that waited hours for a less petite provider. She told me the pelvic fracture made reducing impossible.

Most reduction failures aren’t strength issues, they’re typically sedation and/or technique failures.

 

[RustedFox]

Not sure that bigotry is a badge of honor.

How is that bigotry?

EDIT: Don't "hmm" me. Get real. Professions have physical demands. We don't have 400 pound firefighters or navy SEALS. Want to fly fighter jets in the military? There's a height, weight, and eyesight requirement. Those are hard rules. Being a surgeon with fingers too fat for dexterity or one that can't stand up in the O.R. for long enough is no different.

Get. Real.

 

[medninja]

How is that bigotry?

I’ll bite: selecting residents based on appearance instead of their ability to perform their job duties seems pretty clear cut.

 

[Brigade4Radiant]

If obesity is considered a disability, then our nation is in the toilet.

If there is a code on the 8th floor and elevator is busy/broken, I run up 8 stairs just about as quick as the elevator. Said ER doc would break down after the 2nd stairs.

How is this any different than if I broke my arm and can't intubate?

She is not fit to do the job. An Er doc has to be fit.

Why are you leaving the ER to cover the 8th floor? Are you getting paid for that? What if the patient needs to be transferred out?

 

[RustedFox]

I’ll bite: selecting residents based on appearance instead of their ability to perform their job duties seems pretty clear cut.

If it appears that they can't fit in the O.R. then they're probably not a good candidate to be a surgeon.

EDIT: Says so right in the article: "Has to take breaks to breathe, can't stand over the patient."

There's a reason this is a joke:

 

[Kryptocoin]

She weighs 400Ibs, so she's morbidly obese. There's a minimum level of fitness that should be passed. How's she going to run to codes on the floor? Pilots have to pass an annual physical else they're not allowed to fly.

The problem for the program is that they knew she was morbidly obese and yet ranked her high enough to match. So she could argue they knew what they were getting and should have made accommodations for her.

 

[bravotwozero]

Why are you leaving the ER to cover the 8th floor? Are you getting paid for that? What if the patient needs to be transferred out?

I think he was speaking hypothetically? I mean, the man works in a FSER and hasn’t worked in a hospital in ages.

 

[WildEMDoc]

I’ll bite: selecting residents based on appearance instead of their ability to perform their job duties seems pretty clear cut.

But that’s what they seem to have fired her over is inability to do the job (+/- some sort of professional issues) due to her weight.

It has nothing to do with appearance and everything to do with performance.

 

[anonperson]

Her medical school failed guiding her. Why would they even recommend a physically demanding specialty.

Could have done rads/psych/path etc without any physical issues.

Someone should have had a frank discussion with her.

In this age of being politically correct, no one was willing to step up and do the right thing.

 

[gyngyn]

Her medical school failed guiding her. Why would they even recommend a physically demanding specialty.

Could have done rads/psych/path etc without any physical issues.

Someone should have had a frank discussion with her.

In this age of being politically correct, no one was willing to step up and do the right thing.

We spend hours trying to dissuade students from making bad career choices.
We show them data, we give them examples, we do everything but tap dance and yet they will persist.
Ultimately, we cannot stop them.

 

[RustedFox]

Her medical school failed guiding her. Why would they even recommend a physically demanding specialty.

Could have done rads/psych/path etc without any physical issues.

Someone should have had a frank discussion with her.

In this age of being politically correct, no one was willing to step up and do the right thing.

Had this precise discussion last night with a friend:

Friend: "Why do people do these things, Rusty?"
Me: "Because this is America. The land of the free. People are free to believe that they are right, even when they are demonstrably wrong. They're even free to believe that anyone who tells them that they are wrong, is discriminating against them in some form."

 

[GassYous]

If you need to take breaks to breathe you're doing it wrong

 

[ScepticSkeksis]

Physicians, especially those involved in direct patient care shouldn't be obese. As part of our training we learn about healthy lifestyles, healthy diet, and the problems that obesity cause. If a physician doesn't understand and enact aspects of healthy living into their own life then they have no business counseling patients on anything health related. Is the half-tonner going to give patients realistic advice on weight loss to control arthritis, healthy diet to control diabetes? It's a joke that we accept being obese as normal and "okay" in this country.

 

[TooMuchResearch]

Most reduction failures aren’t strength issues, they’re typically sedation and/or technique failures.

The smallest resident in my graduating class was literally just over half my weight and more than a foot shorter than me. She also reduced the most hips in our class. I agree, reduction success is 100% technique and propofol depth. Usually when I'm having trouble with a hip, adjusting the pressure and hand position of whoever is holding down the pelvis corrects the problem. Also helps to have a few techniques in the toolkit.

 

[FlaminHotER]

How is that bigotry?

EDIT: Don't "hmm" me. Get real. Professions have physical demands. We don't have 400 pound firefighters or navy SEALS. Want to fly fighter jets in the military? There's a height, weight, and eyesight requirement. Those are hard rules. Being a surgeon with fingers too fat for dexterity or one that can't stand up in the O.R. for long enough is no different.

Get. Real.

For the love of God this.

The political correctness infecting medicine is abhorrent and needs to be stopped

This isn’t discrimination against that Doc’s skin, race, creed, religion, or sex.

This is actual physical and mental ability.

Which is clear she doesn’t have the physical or mental ability to do the job. It’s not safe for her or her patients.

 

[Birdstrike]

*Opinion*

On page 21 of this Texas Supreme Court ruling, it looks like they found she didn’t have a disability, so she couldn’t sue for being a discriminated against for a disability she didn’t have.

Case dismissed. Decision, final.

https://www.txcourts.gov/media/1456743/220179.pdf

 

[PikminOC]

For the love of God this.

The political correctness infecting medicine is abhorrent and needs to be stopped

This isn’t discrimination against that Doc’s skin, race, creed, religion, or sex.

This is actual physical and mental ability.

Which is clear she doesn’t have the physical or mental ability to do the job. It’s not safe for her or her patients.

Lots of liberal judges out there tho...

 

[Birdstrike]

*Opinion*

Of note, they noted that it is possible for obesity to meet the criteria for being a “disability,” but to do so, it must be shown to be caused by health issues, not merely the cause of one’s health issues (page 21 of 22).

Also of note, the first 5 pages details the performance and patient safety concerns listed by her supervisions.

https://www.txcourts.gov/media/1456743/220179.pdf

 

[ScepticSkeksis]

*Opinion*

Of note, they noted that it is possible for obesity to meet the criteria for being a “disability,” but to do so, it must be shown to be caused by health issues, not merely the cause of one’s health issues (page 21 of 22).

Also of note, the first 5 pages details the performance and patient safety concerns listed by her supervisions.

That's a reasonable interpretation. Other than Prader-Willi what medical conditions can CAUSE you to be obese? At the end of the day it's just stuffing your face with way too many calories.

 

[VA Hopeful Dr]

How is that bigotry?

EDIT: Don't "hmm" me. Get real. Professions have physical demands. We don't have 400 pound firefighters or navy SEALS. Want to fly fighter jets in the military? There's a height, weight, and eyesight requirement. Those are hard rules. Being a surgeon with fingers too fat for dexterity or one that can't stand up in the O.R. for long enough is no different.

Get. Real.

Chill out man. I'm not sure you get what think the Hmm thing means. Maybe I'm the only one who uses it this way, but for me it means "that's an interesting point that needs thinking about".

 

[Birdstrike]

That's a reasonable interpretation. Other than Prader-Willi what medical conditions can CAUSE you to be obese? At the end of the day it's just stuffing your face with way too many calories.

Most of the ones I can think of, are themselves treatable (ie, hypothyroidism) and only predispose towards obesity and don’t make it unavoidable.

I know hard hard it is to keep unnecessary weight off. I’m one of those people who seemingly looks at food and gains weight, if I’m not careful.

I was obese once, with a BMI of 32, caused by stress-overeating, lack of discipline and lack of exercise. It also happened to be during residency and I was able to perform my duties just fine. Getting in that state was my responsibility. So was getting out.

After stress reduction, increasing exercise, decreasing portion sizes and a big infusion of discipline, my BMI has been 22 for about 5 years.

My excess weight was 100% self caused, as has my subsequent weight loss and weight maintenance.

To quote the Texas Supreme Court in the above decision, “…the accumulation of fat cells is a normal bodily process…A person’s morbid obesity could be the body’s normal and natural response to a person’s lifestyle choices or eating habits.”

 

[ScepticSkeksis]

My

Most of the ones I can think of, are themselves treatable (ie, hypothyroidism) and only predispose towards obesity and don’t make it unavoidable.

I was obese once, with a BMI of 32, caused by stress-overeating, lack of discipline and lack of exercise. It also happened to be during residency and I was able to perform my duties just fine. Getting that way was my responsibility. So was getting out.

After stress reduction, increasing exercise, decreasing portion sizes and a big infusion of discipline, my BMI has been 22 for about 5 years.

My excess weight was 100% self caused. So was my weight loss and weight maintenance.

It is interesting that most Americans were not overweight until the 90's, and obesity was relatively rare. Rather than as a society try to find the root cause and fix things, we just have decided that being fat is okay, and we will just encourage it.

 

[wamcp]

*Opinion*

On page 21 of this Texas Supreme Court ruling, it looks like they found she didn’t have a disability, so she couldn’t sue for being a discriminated against for a disability she didn’t have.

Case dismissed. Decision, final.

https://www.txcourts.gov/media/1456743/220179.pdf

To be more specific:

The question at stake in the court is NOT about whether she was physically disabled by morbid obesity.

It is a question on whether her known physical disability by morbid obesity is covered under the Texas Labor Code.

The Labor Code made it clear that in order to qualify for disability discrimination then that disability has to arise from an underlying physical ailment that basically is not under the individual’s control.

The Labor Code, in other words, says no, you don’t deserve to be protected if your own reversible physical problems were of your own fault.
The obese person (generally) only stays obese through a continued lifestyle of bad diet and low exercise. This is a choice they make every time they pick up a McLardBurger. If the obese person improved their diet and started exercising, their weight would improve and they would no longer be disabled.

(I agree with the Labor Code and think this is 100% fair, as this is why alcoholics going to work drunk should obviously not be protected from mental disability discrimination)

Since the ER resident made no argument to claim otherwise, she lost.
(For example she did not claim her morbid obesity was due to say, Cushing’s syndrome).

 

[Birdstrike]

To be more specific:

The question at stake in the court is NOT about whether she was physically disabled by morbid obesity.

It is a question on whether her known physical disability by morbid obesity is covered under the Texas Labor Code.

The Labor Code made it clear that in order to qualify for disability discrimination then that disability has to arise from an underlying physical ailment that basically is not under the individual’s control.

The Labor Code, in other words, says no, you don’t deserve to be protected if your own reversible physical problems were of your own fault.
The obese person (generally) only stays obese through a continued lifestyle of bad diet and low exercise. This is a choice they make every time they pick up a McLardBurger. If the obese person improved their diet and started exercising, their weight would improve and they would no longer be disabled.

(I agree with the Labor Code and think this is 100% fair, as this is why alcoholics going to work drunk should obviously not be protected from mental disability discrimination)

Since the ER resident made no argument to claim otherwise, she lost.
(For example she did not claim her morbid obesity was due to say, Cushing’s syndrome).

*Opinion*

Perhaps the most interesting thing from this case is that she actually didn’t claim to have any disability or history of any disability. From page 9 of the ruling: The argument was that her employers “regarded” her as being disabled and discriminated against her for the “perceived impairment.”

She was simultaneously arguing that she was fired for being disabled, while not being disabled at all.

https://www.txcourts.gov/media/1456743/220179.pdf

 

[emergentmd]

Why are you leaving the ER to cover the 8th floor? Are you getting paid for that? What if the patient needs to be transferred out?

What does this even mean? I have worked at Level I/II with double coverage and the ER docs are responsible for floor codes. 8th floor may be a stretch but been on the 4-6th. Its been 4 yrs since I have been out but Im sure ER docs still run floor codes. Transferred out where? Its a hospital with ICU. I run the code, tell the nurse to get the hospitalist to take over care and I can care less what happens after they are intubated.

I think he was speaking hypothetically? I mean, the man works in a FSER and hasn’t worked in a hospital in ages.

4 yrs is not that old but many places I have worked have the hospital side a good distance from the ER. It takes me 5 min to get to the code sometimes with a decent paced walk.

 

[emergentmd]

I dont even know why this topic is even a debate. I don't care if you are morbidly obese, old, have bad vision. If you can do the job, then I have no issues. This lady had issues doing basic ER procedures.

I am 160 and if someone put a 240 lb weight on my back all shift long, I for sure could not do the job.

 

[Mount Asclepius]

What EP responds to hospital floor codes in a decent sized hospital anymore? That’s not the responsibility of an EP. Your job is the ED. The longest walk I do is to get from the main part of the ED to the psych zone or fast track area.

 

[ScepticSkeksis]

What EP responds to hospital floor codes in a decent sized hospital anymore? That’s not the responsibility of an EP. Your job is the ED. The longest walk I do is to get from the main part of the ED to the psych zone or fast track area.

It's quite common in many areas unfortunately. But usually it's just intubate and leave the rest up to the hospitalist/ICU NP.

 

[Mount Asclepius]

Meh. I’m a ‘biggest.’ My own personal bias is that I have strong feelings against obesity. For a select few it’s not their fault; either through genetic abnormalities or epigenetic changes. For the vast majority of obese individuals though it is due to a lack of exercise and poor diet. A lack of discipline. Economic disparities certainly contribute and sometimes deal a bad hand. Those individuals also have an argument, but not as convincingly. People around the world still suffer from starvation - and die… Good luck defending your disability to someone who is perishing from hunger.

 

[Mount Asclepius]

It's quite common in many areas unfortunately. But usually it's just intubate and leave the rest up to the hospitalist/ICU NP.

Fight the good fight. Refuse. That’s the job of an intensivist. There is only one person that needs to step up and be responsible for the patient if coming from the hospital floor to the ICU and requires intubation.

When EMS brings a patient to the ED that needs resuscitating I don’t get off the hook by calling someone else.

I don’t buy at all that it is quite common for many level 1 trauma centers.

 

[Birdstrike]

I am 160 and if someone put a 240 lb weight on my back all shift long, I for sure could not do the job.

In residency we had an attending that was huge. Im not sure if he tipped the scales at 400, but he close, easily pushing 350-375. And he did just fine. He was great, actually.

An unrelated fact about him, was he was the only member of the senior academic staff that has never bee sued. He was about 60 at the time, 30 years into his career.

 

[FlaminHotER]

It is interesting that most Americans were not overweight until the 90's, and obesity was relatively rare. Rather than as a society try to find the root cause and fix things, we just have decided that being fat is okay, and we will just encourage it.

Also kinda interesting correlation that as the rates of smoking decrease the rates of obesity went up

 

[anonperson]

We spend hours trying to dissuade students from making bad career choices.
We show them data, we give them examples, we do everything but tap dance and yet they will persist.
Ultimately, we cannot stop them.

Very true. But she must have done several rotations. This didn't come up then?

 

[gyngyn]

Very true. But she must have done several rotations. This didn't come up then?

There's no way to know.