probation

[3dtp]

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Not sure what you're saying.

A court steps into any dispute where one party has filed suit against another. Unless it settles before going to court. There is certainly a basis on which a resident can sue their program.

Personally I also feel many cases have suffificient merit to win in court. The objective though, in cases of B.S. probation, is just to get both sides to drop their weapons and let the resident complete the program.

Nobody in their right mind, and no lawyer with any financial savvy will file a suit just because a case has sufficient merit to win.

Why? Because although it may be very clear with a preponderance of the evidence that evildoing took place, the hospitals have extremely strong protections. This should be self evident.

While there are clear bases upon which a program can be sued, as pointed out above, many hospitals rely on the fact that courts refuse to look into these problems on the basis that the hospital-physician relations are too complicated for them to decide, or they are getting into academic disputes, and therefore decline to hear the cases, thus giving hospitals carte blanche to do whatever they want.

Were this not the case, the New York Bell Commission Rules would have been strongly enforced by residents for decades before the ACGME, bowing to pressure from congress, started enforcing 80 hour rules already on its books for years, but widely ignored. Absent judicial oversight, tyranny is unchecked. This simple fact has been known for at least 8 centuries.

This comment does not mean that all or even most programs are tyrannical. I submit that there is likelihood that some programs are, some are not, and absent a well designed study, we simply do no know the relative ratios. I, being ever naive and politically unsavvy, choose to believe that the good outnumber the bad, absent hard data, but so far, we've only seen anecdotal data.

The case law is slowly changing and starting, in some states, to give the programs pause, but right now, the odds of getting to trial are low, even if a program blatently and in writing states that it is terminating you for protected activity.

The purpose of hiring a competent and qualified lawyer for residents in these situations is to have an advocate, knowledgeable in the licensing laws and credentialling situations give you good advice on how to best deal with the program's proposed actions, not to walk into the hospital arm and arm to start a fight.

A good lawyer will always work to avoid a fight if possible, and to be most effective, the lawyer will be and should be invisible. In fact, in the case of the OP, depending on the circumstances, a highly qualified and competent lawyer may look at the entire situation and say, "gee, you've screwed up, go take your lumps and do better." From the information here, we simple do not know.

 

[3dtp]

Courts rarely to never step into 'academic' disputes.

The only time a lawsuit (or just the threat thereof) can be useful is if the program didn't stick to their own rules or did something really egregious (like firing you for being black, lesbian, black&lesbian or because the aryan nation told them to). If they have a stack of evals that say that you didn't fulfill the job requirements and they followed their protocol of hearings and probation, no court is going to order them to rehire you.

Oh, and I would suggest that nobody stakes their hopes on the ACGME to fix things that are wrong with their program. The ACGME functions like JCAHO. They come, pull out the policy folder, read through it, talk to some hand-selected staff members, leave and write their report.

Absolutely correct, except even the really obvious and egregious may not make the cut with a company judge in a company town.

 

[3dtp]

Most academic (ie university based and controlled) programs take their role seriously as pedi-bone has made clear. F_w is absolutely correct in that these protections, if they exist at all are easily circumvented at community hospitals. The goals of these hospitals are also vastly different. Community based hospitals are interested in the bottom line, and anything that in any way adversely affects this is grounds for whatever action the hospital thinks it can get away with.

Universities, on the other hand, are interested in education and enlightenment. Profitability (whether it is shown on the balance sheet as a profit or revenue over expense line item), is usually important, but not so important as to derail their primary education and research goal.

Concerning personalities and why this happens, consider:
1. People entering medicine are very bright, driven and ambitious.
2. This set of personality traits leads to a "can do attitude."
3. which, in my opinion, may lead to an attitude of my way or the highway.

This is where the danger lies. Very bright people who are very insecure can quickly reach positions of power. Most of us, once we are through with residency, shun academic positions for the greater freedoms, financial rewards and flexibility of private practice. So, who is going to fill these positions? If a person of great intellectual potential, but high insecurity moves into a position of power, runs across an equally bright person under their thumb that sees the world differently, there are two possible reactions. One is to squelch dissent, sometimes harshly and permanently as, "you'll never work in this town again." The other is to engage the dissident so that each may learn.

Unfortunately, the insecurely powerful, in my opinion, usually take the former route. Pedia-bone seems to be in the latter camp, for which I am grateful he has remained in academic medicine.

My, this discussion has strayed far affield from the OP's question, but I think on the whole it has been an enlightening one. Sorry to have so totally hijacked your post, guy.

 

[Mad Dog]

Interesting all the legal “knowledge” possessed here.

Does anyone have legal training or even any experience with this?

I’ll be the first to say I’m not a lawyer, nor have I played one on TV. But my impression is that routine civil cases are “not heard” or can get dismissed for specific reasons only, such as the court lacking jurisdiction, etc. Otherwise, any entitiy can sue any other entity. And if it doesn’t have basis, you just lose (and have to pay court costs, etc). If you are saying a court would pre-determine that “hospital-physician relations are too complicated” and then refuse to hear a case between a resident and his program, that opinion 3dtp is grounded in no reality I’m aware of.

Again, however, I am not a lawyer. So anyone with actual legal knowledge, rather than a bunch of blathering on a student doctor forum, feel free to step in and I will defer to legitimate professional knowledge.

As for court not being the ideal venue for resident disputes however, I have already said the same. Court takes up everyone’s time and money, and that in fact is the main reason to consider a lawyer, to make the other side realize it’s not worth the fight. Its curious you say the lawyer should be “invisible”-- in that case why get a lawyer at all? Just ask a friend for advice if that’s all you need.

Anyway, all of the above does seem extraneous, but legal considerations are just another thing to consider with regard to probation. For anyone facing this, you may also know my opinion, as I’ve said before, that its almost always B.S. Of all the crumb bags I’ve met in medicine they were never the ones facing probation, but were always rather the ones pushing their less politically savvy colleagues into the well. I don’t support probation for anybody, unless it’s the program director for the excuse resident “education” has become (feel free to ignore that comment!).

One thing that might be useful however, before this thread dies an ignominious death, would be if the OP would come back and tell his story. So what happened there applecore? It would illustrate things better.

 

[f_w]

But my impression is that routine civil cases are “not heard” or can get dismissed for specific reasons only, such as the court lacking jurisdiction, etc.

Or the judge early on during the prelimnary hearings pulls both parties into chambers and urges them to find a 'settlement' in the form of: 'both parties pay 1/2 the filing fee, the employee gets 2 weeks worth of back-pay and everyone agrees to the case being dismissed with prejudice'.

Sure, you can fight every case to the appeals court if you have unlimited amounts of money and an 'island' sense of time.

 

[3dtp]

Interesting all the legal “knowledge” possessed here.

Does anyone have legal training or even any experience with this?

Which is why one pays good money to hire them.

I’ll be the first to say I’m not a lawyer, nor have I played one on TV. But my impression is that routine civil cases are “not heard” or can get dismissed for specific reasons only, such as the court lacking jurisdiction, etc. Otherwise, any entitiy can sue any other entity. And if it doesn’t have basis, you just lose (and have to pay court costs, etc). If you are saying a court would pre-determine that “hospital-physician relations are too complicated” and then refuse to hear a case between a resident and his program, that opinion 3dtp is grounded in no reality I’m aware of.

Again, this is why you pay lawyers, to help you find the legal reality. Here are the facts, nicely summarized by the Michigan Supreme Court (Feyz v. Mercy Memorial Hospital 719d N.W.2d 1(Mich.2006)). Feyz sued on the basis of sham/bad faith peer review while an attending at the defendent hospital. His case was dismissed by the trial court in pre-trial motions on the basis of the state doctrine of "judicial non-interference," which was well established by Michigan case law, MCLA 331.531 (Peer review immunity clauses), also Hoffman v. Garden City Osteopathic Hospital (321 N.W. 2.d 810 (Mich App 1982)), Long v. Chelsea [219 Mich App 578;557 NW2d 157(1996)]. These are at the state level. At the federal level, see the Health Care Quality Improvement Act of 1996.

Also federal cases expanding hospital immunity include Schulman v. Washington Hosp Ctr [222 F Supp 59 (D DC, 1963)] and expanded on by subsequent cases with the DC appellate court remanding with instructions "the decisions of the governing bodies of private hospitals are not subject to judicial review."

These are the primary case laws and rulings upon which hospitals today act with smugness in squashing anyone who would attempt to hold them accountable for evil acts, or even ask questions they really don't want to answer. This is the problem we all face, not only as residents, but, eventually as practicing physicians.

There are chinks in this armor, as in Dallas, the $366M verdict in Polliner for economic credentialling and bad faith peer review pierced the Schulman veil, and in California, where the California Supreme Court ruled that doctors do have some recourse against this non-sense, but these cases are far and few between.

Its curious you say the lawyer should be “invisible”-- in that case why get a lawyer at all? Just ask a friend for advice if that’s all you need.

For all of the above reasons, including the fact that ta lawyer who is a specialist will know the nuances of the law, case law, and possibly even the history of the institution and individuals and be best able to help a resident in trouble navigate perilous waters.

Hospitals will be seriously p.o.'d if they find out someone is getting legal advice, in a questionable proceeding. But it's also a sure bet they won't do squat without it. While a friend's advice may be useful, if I were diagnosed with a serious CNS disease, I might discuss it with my local internist, but for certain, the neurology/neurosurgical specialist will be the one I go to, and pay for advice.

 

[Mad Dog]

Here are the facts, nicely summarized...

Excellent post, in all respects.

The practice of medicine has been described as a privilege, not a right. And the deciding bodies operate in many instances with impunity, as you describe. Another interesting point is how these decisions snowball well beyond their initial action. The revocation of hospital privileges can effect ones ability to obtain malpractice, or even one’s state license. The loss of licensure can then cause licensure loss or inability to obtain a licence anywhere else. The damages are economic, to ones livelihood and reputation, and the damages can be irreparable. The power wielded in these actions is enormous. Where else can you find a situation where no crime has been committed, no law broken, and the transgression subjective and merely a manner of degree-- and someone’s life is destroyed. Judge, jury-- and executioner.

If power corrupts, then absolute power-- creates Residency! I’m not sure though that I want more oversight. I just want a system that’s more humane, less crappy, and less junior high. Any resident failure is a system failure, and the blame and correction should be system-based. No more hanging man.

 

[mohammad1975]

very interesting discussion. I do not know why programs instead of placing someone on probation, just do not go ahead and fire some one and if asked by the person, give him an honest letter about what they really think about their ex-employee? why this thing even does exist...it has no value but humiliation, embarrasement and pain and most people do not make it to the end, since bad news spread fast in a hospital setting and the amount of psychological pressure is high which contradicts with continiuation of residency. It is just like whipping someone in a public place. It is barbaric and sadistic. If there is any PD in this discussion, I ask him/her to think about it.