2. Don't take the ACGME's word for anything. You need to start with the basics, and look at...your contract with the program.
Definitely sage advice. I ran into a similar problem in med school so I made it a point to be acutely aware of my current program's GME policies and procedures, especially regarding resident evaluation and disciplinary measures. Many, if not most GME programs allow some sort of recourse if a resident or fellow believes they are the target of vitrio. If you are still considering seriously pursuing this, you should check your GME "policies and procedures" resident handbook which are usually provided at orientation. I think most GME programs allow the resident to file a formal complaint or grievance. This may be an ACGME requirement, I'm not sure.
By your attending being a "dead end" I assume you mean they were uncooperative and/or unwilling to discuss the matter. If discussions with your program director did not adequately address your concerns and you still want to pursue this you may want to consider going that route as it seems you have exhausted all informal arbitration procedures available to you. If you expect to succeed with your claim though, I'm guessing you would need to be able to provide some objective evidence that the attending eval was, in fact, inappropriate. Otherwise, you would probably be served best by following the advice others have given by just providing your side or your rebuttal to the PD for inclusion in your resident file.
... So what in your program's documentation prevents your PD from withdrawing or changing the evaluation (eg by redacting part of it and noting that parts of the evaluation have been removed as being inappropriate?). Can your PD add something to the evaluation, ensuring that whenever the evaluation will be seen the PD's view of it as inappropriate will also be seen?
I can't see any PD doing some sort of piecemeal or partial editing of the eval. You either take it at face-value or dismiss it. I don't see how or why there would be any middle ground here. It's either a reliable assessment or a misrepresentation of the facts or events.
6. Alternatively, look at the consequences of this evaluation staying on your record. Who gets to see it? Can you live with/alter the consequences of the evaluation, rather than the evaluation itself?
If the eval is clearly an outlier then I don't see why this should have any long-term or far-reaching ramifications or why it would carry much weight. If, on the other hand, you were to receive another similar eval or multiple ones from other attendings or senior residents it could and probably would be used as evidence to show a pattern. In that case it could help serve as the impetus to initiate some counseling, remediation, or disciplinary measures.
As far as ACGME policy regarding resident records retention, I'm not sure but I believe as long as the resident completes the program, only a summative evaluation based simply on a satisfactory/unsatisfactory rating in each of the ACGME core competencies remains in your permanent file. I believe individual evaluations are destroyed. Whether a PD includes aggregate comments, including negative comments, compiled from individual evalutions in a letter which is also part of the permanent file, I'm not aware of but I assume this would be separate from the summative evaluation which would be provided to credentialing/licensing committees.
7. If the evaluation is so inappropriate that it breaks the law by being libellous or evidence of unlawful discrimination, a threat of legal action against the attending might be an option which could result in the attending withdrawing/changing the evaluation. How about a potential complaint of unprofessional conduct? But you need to keep the PD on your side, so any proposed action of this kind would have to be done in a way which did not reflect on the program/institution, just the individual attending.
This is a very interesting argument and one that I have researched a bit. Are you aware of any case where a resident sued an attending or institution for defamation based on statements made in an evaluation or otherwise and prevailed? I'm not. I did come across a case
Johnson vs. BMC, Dr. Lawrence Rues where the resident sued and claimed an attending made defamatory statements as part of his evaluation of her. She lost at trial and the trial court's decision was upheld on appeal.
It's difficult sometimes to decipher the legalese but the appeals court wrote in their brief that "Dr. Johnson received from BMC a booklet entitled "Special Requirements for Residency Training in Family Practice," which stated: "There must be adequate, on-going evaluation of the knowledge, competency, and performance of the residents. Entry evaluation assessment, interim testing and periodic reassessment, as well as other modalities for evaluation, should be utilized." Under these circumstances, it is not error to find that Dr. Johnson consented to the allegedly defamatory remarks, because consent to evaluation reasonably implies a consent to intra-faculty discussion of an employee's progress. The district court therefore correctly concluded that Dr. Rues's alleged remarks were privileged."
So, at least in Missouri where the case was, even if the attending's remarks were defamatory and involved a third-party, they were considered privileged and, apparently, immune to any legal claim of defamation. I suppose this is somewhat similar to the hospital peer review process for physicians which fall under "quality assurance", and therefore are also considered privileged and immune to any defamation claim. A cursory review of similar cases and their rulings shows just how heavily weighted in favor of the programs the whole thing is and what an uphill battle residents contemplating legal action have to look forward to.
I came across another case
Stein vs. Trazer which involved a research fellow whose attending described in his evaluation as "
psychopath, very destructive, antisocial, son-ofbit#%, intellectually incompetent, immoral, liar,homosexual, and stated that he had made up all the data for his master's thesis". It doesn't get much more inflammatory than that. I don't know what the outcome of that case was but I guess if that resident were from Missouri they'd still be screwed.
I do agree with shopsteward that you're more likely to be successful if whatever action you take (be it a formal complaint, grievance, suit) is directed at an individual and not the program or institution.
PD says that s/he checked with the ACGME about withdrawing evals and stated that the PD does not have the power to withdraw the evals.
I find it very hard to believe that the PD can not remove this eval given the ACGME's history of extreme unwillingness to mettle into resident affairs and disciplinary matters. The widest latitude and deference is given to PDs regarding essentially all aspects of resident evaluation which also makes the whole process ripe for abuse. I just can not fathom the ACGME telling a PD they are not allowed to remove an eval. Surely though, if it can be proven that there was a mispresentation of the facts then the eval should not be included.
