Wrongly Suspended for Medical Condition

[Dr. Little Foot]

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Hello, a friend of mine is a medical resident (MD FMG) who during his first year of residency was diagnosed with a medical condition after a flare up at work led to an ED trip and short hospital stay. Shortly thereafter, he was cleared by the relevant treating specialist who approved immediate return to work. The hospital delayed return to work pending an IME. The IME doc said that the resident could return to work in July (ie now), and any earlier return to work approval note would have to come from the treating physician (who had already given one, which was rejected by the hospital).

At this point, my friend has been effectively suspended without pay for several months. To add to it all: he got an email from the hospital a few days ago saying that the July return date was not being honored and that he would need another IME appointment, which will be made by the hospital whenever they get around to it. The resident has obviously run out of funds at this point and is at a loss for what to do. I am writing on his behalf (with his permission) because he thinks that the best course of action is to smile and nod and hope it works out as the hospital jerks him around.

Does anyone have suggestions of how to proceed here? I believe it is time to get an attorney involved but don't know what kind of firm to contact. It seems to me that the hospital is violating ADA at the very least (considering the hospital is preventing return to work despite multiple physicians saying it is safe for him to work). All local hospital and corporate representatives involved are giving him the runaround and have been for several months now. We are concerned not only about him being able to pay cost of living while waiting for return to work, but also the issues that may arise with work visa.

Thank you all for any advice on this matter

 

[LucidSplash]

Is the medical condition substance abuse?

 

[Dr. Little Foot]

Is the medical condition substance abuse?

No, nothing of the sort

 

[LucidSplash]

Something is either fishy with the hospital or there is information your friend has not conveyed to you.

Paging @NotAProgDirector.

 

[LucidSplash]

No, nothing of the sort

If the medical issue is a psychiatric illness requiring continuous medical management, could also result in a complex situation with the hospital depending on what the presenting symptoms of the “flare up at work.” Will see what the NotAPD has to say.

 

[Dr. Little Foot]

Something is either fishy with the hospital or there is information your friend has not conveyed to you.

Paging @NotAProgDirector.

I know more details, just don't have permission to share for the sake of anonymity. From what I can tell, the hospital's potential motive here seems to be fear that his condition will cause a fall injury at work resulting in a lawsuit. In any case, he requested reasonable accommodations (eg. take a 10 minute break when needed a couple times a week) which were denied.

 

[Dr. Little Foot]

As far as things fishy with the hospital though...I can absolutely confirm that first hand. I was physically assaulted by my chief resident in the past, and HR's response was to tell me to stop my defamation of the chief (it happened in the overnight call room, so no security footage). We are in different departments but same hospital. This and other similar incidents (protecting residents who refused to see consults while on call, ignoring sexual and racial harassment, etc.) is why I am heavily inclined to distrust admin in this case as well. I don't want to make this thread about me though...just looking for some advice for my friend.

 

[GoSpursGo]

It sounds to me like he has a disorder that can occasionally cause the physician to become incapacitated without warning. Just taking a guess, but maybe something like seizure disorder or narcolepsy. Impossible to say for sure obviously, just speculating.

There are a few things to unpack, which @NotAProgDirector can likely comment about more authoritatively. I think a really important distinction here is that the resident cannot be "cleared" by a letter from his physician or even by the IME--they can provide their opinions, however it is ultimately up to the training institution about whether the resident can satisfy the "technical standards" of the training program, possibly with reasonable accommodations for the ADA.

Without knowing the actual nature of the medical condition, or the full list of accommodations that were requested, it's impossible to comment on whether the institution is being fair or not, or if the resident would have a reasonable ADA case against his institution. If, for example, the resident has epilepsy and was in a surgical/procedural field where a seizure would potentially expose a patient to harm... I'm not sure how the resident would ever be able to get reasonable accommodations to continue in a surgical/procedural field.

 

[NotAProgDirector]

Lots about this story are very atypical.

If a resident has a medical condition that requires that they miss work, each program may have different policies about how return-to-work is managed and how the resident is paid. All programs should have a way to pay residents for short periods of time -- usually some concept of "sick days". Residents are salaried so don't have PTO like nurses. Some programs may have a limited amount of sick time. After that, the resident usually uses vacation time, or they go out on medical disability. Residents should have both short term and long term disability provided by their programs. Short term disability usually provides 100% of salary for up to 3-6 months. After that, long term disability kicks in and can be 70-100% of salary -- but often is income tax free (hence the 70% is often close to your full salary).

When a resident is ready to return to work, programs can require an evaluation. It should be paid by them, and is often done in-house. In the best cases, the doc evaluating the resident is "firewalled" from the program, the program does not get medical details, only gets an assessment of whether the resident is medically able to work, and (sometimes) what accommodations may be needed. Accommodations may also be addressed by a separate office that manages these types of requests. Ultimately the program decides whether the resident is able to meet the minimum technical standards needed. The institution also gets to decide what constitutes a "reasonable" accommodation -- although the courts have been very clear about guidelines in this regard.

I was also going to guess this was a seizure disorder. In general, it would be unreasonable for a program to decide that because of a seizure, a resident is permanently unable to work. They might limit their exposure to the OR or other procedure spaces if they felt that was unsafe (just like anyone with a seizure loses their license to drive for 6 months in most states).

So:
1. The resident should be on disability and getting paid. Is it possible that some programs don't supply disability insurance? I guess so, although this seems rather standard. I don't see anything about it in the ACGME requirements.
2. The overall story sounds poorly managed. It is completely reasonable for the program to request a fitness for duty exam. But once that is done, they should make a decision. Either the resident meets technical standards, or not. Seizures would not be automatically disqualifying. Concerns like "what if they have a seizure while seeing a patient" are not valid, as it's unlikely the patient would be harmed. Procedures are another story, and requiring the resident to be seizure free for some period of time would be reasonable.
3. Whether any requested accommodations are reasonable is a difficult question to answer as it will be very situation specific. Rare 10 minute breaks would usually be reasonable, unless they are needed during "critical events" with no notice.

Sounds bad overall. A lawyer sounds like a good next step. However this person sounds very non-confrontational, and if tehy are just going to tell their lawyer to "wait and see", then it won't make any difference.

 

[Dr. Little Foot]

Thanks for the reply. He is not in a procedural field.

 

[Dr. Little Foot]

Lots about this story are very atypical.

If a resident has a medical condition that requires that they miss work, each program may have different policies about how return-to-work is managed and how the resident is paid. All programs should have a way to pay residents for short periods of time -- usually some concept of "sick days". Residents are salaried so don't have PTO like nurses. Some programs may have a limited amount of sick time. After that, the resident usually uses vacation time, or they go out on medical disability. Residents should have both short term and long term disability provided by their programs. Short term disability usually provides 100% of salary for up to 3-6 months. After that, long term disability kicks in and can be 70-100% of salary -- but often is income tax free (hence the 70% is often close to your full salary).

When a resident is ready to return to work, programs can require an evaluation. It should be paid by them, and is often done in-house. In the best cases, the doc evaluating the resident is "firewalled" from the program, the program does not get medical details, only gets an assessment of whether the resident is medically able to work, and (sometimes) what accommodations may be needed. Accommodations may also be addressed by a separate office that manages these types of requests. Ultimately the program decides whether the resident is able to meet the minimum technical standards needed. The institution also gets to decide what constitutes a "reasonable" accommodation -- although the courts have been very clear about guidelines in this regard.

I was also going to guess this was a seizure disorder. In general, it would be unreasonable for a program to decide that because of a seizure, a resident is permanently unable to work. They might limit their exposure to the OR or other procedure spaces if they felt that was unsafe (just like anyone with a seizure loses their license to drive for 6 months in most states).

So:
1. The resident should be on disability and getting paid. Is it possible that some programs don't supply disability insurance? I guess so, although this seems rather standard. I don't see anything about it in the ACGME requirements.
2. The overall story sounds poorly managed. It is completely reasonable for the program to request a fitness for duty exam. But once that is done, they should make a decision. Either the resident meets technical standards, or not. Seizures would not be automatically disqualifying. Concerns like "what if they have a seizure while seeing a patient" are not valid, as it's unlikely the patient would be harmed. Procedures are another story, and requiring the resident to be seizure free for some period of time would be reasonable.
3. Whether any requested accommodations are reasonable is a difficult question to answer as it will be very situation specific. Rare 10 minute breaks would usually be reasonable, unless they are needed during "critical events" with no notice.

Sounds bad overall. A lawyer sounds like a good next step. However this person sounds very non-confrontational, and if tehy are just going to tell their lawyer to "wait and see", then it won't make any difference.

Thanks for detailed response. Responding to each of your bullets:

1. He was paid for the first two months or so, which drew foem PTO and FMLA allowances. He did not sign up for disability insurance at the start of the year, which is on an opt-in basis.

2. Yes, this is where I cease to sympathize with hospital admins afraid of a resident getting hurt on the job. My friend followed every instruction, went to all of the appointments, and all docs involved gave him the ok. So why order the IMEs if you don't intend to listen to their recommendations? Also relevant is how they are dragging this out. They had given him a return date at the start of July and waited until the end of June to say "jk, you need another IME, we'll let you know when!!" [paraphrased obviously]. He is in a non-procedural field and has never put a patient in any potentially dangerous situation. He can sense an episode coming up, hence the requested accommodations for short break as needed.

3. I guess I answered this in that last line

Of course I don't blame my friend for being nervous, but his fear of upsetting admin and losing his job in retaliation has paralyzed him against action. I'm hoping he'll allow me to meet with the lawyer alongside him to help push for action. These stall tactics by the hospital really confound me though. What are they getting out of that?

 

[NotAProgDirector]

Not choosing disability insurance was a very poor choice. But that's in the past.

What do they get? He makes them nervous, for whatever reason. They hope he will just go away. Or, they don't really have a plan/decision maker and everyone just keeps punting it to someone else, as no one wants to be repsonsible if something "bad" happens. Getting a lawyer involved can definitely make things a lot worse -- it get's everyone's hackles up. Somewhere along the line they may just decide that his contract is up and they are not renewing it (instead of actually "firing" him).

 

[comp1]

Yeah, I'm not sure if there is a role for a lawyer just yet. The lawyer would likely come at the dismissal part. Ultimately there just needs to be more or at least higher quality communication. In terms of actual money to live on, yeah, that's the roughest part. Maybe unemployment?

 

[dozitgetchahi]

Yeah, I'm not sure if there is a role for a lawyer just yet. The lawyer would likely come at the dismissal part. Ultimately there just needs to be more or at least higher quality communication. In terms of actual money to live on, yeah, that's the roughest part. Maybe unemployment?

If there was ever a situation where it was worth getting a lawyer involved, it’s this one. You don’t need to wait until you get fired. My experience in dealing with various situations in my career and elsewhere is that I have never regretted getting legal representation, and indeed almost always have wished I had gotten representation earlier.

(And while I usually appreciate APD’s advice on these boards, I strongly disagree with him here. Of course your institution would prefer you didn’t get an attorney involved - they’d like to keep dicking around with this situation on their timeline, and they’d really prefer you didn’t show up with anyone who can legally question what is going on. All the more reason that you (or your friend) actually needs a good employment attorney here.)

 

[NotAProgDirector]

(And while I usually appreciate APD’s advice on these boards, I strongly disagree with him here. Of course your institution would prefer you didn’t get an attorney involved - they’d like to keep dicking around with this situation on their timeline, and they’d really prefer you didn’t show up with anyone who can legally question what is going on. All the more reason that you (or your friend) actually needs a good employment attorney here.)

To be fair, this is what I said:

A lawyer sounds like a good next step.

I don't disagree at all. The program is being quite ridiculous with all of this, so talking to a lawyer makes sense.

 

[Iamnew2]

To be fair, this is what I said:

I don't disagree at all. The program is being quite ridiculous with all of this, so talking to a lawyer makes sense.

Lawyers are costly, and generally speaking, courts don't get involved with residency programs as most determine that decisions are within the realm of the educational program. Just my 2 cents

 

[GoSpursGo]

Lawyers are costly, and generally speaking, courts don't get involved with residency programs as most determine that decisions are within the realm of the educational program. Just my 2 cents

While that is obviously true, this is not related to performance or training--it is related to the process by which the program needs to decide if this trainee meets the technical standards or not. Asking for an IME, weighing whether accommodations are reasonable, etc, are all fair. Dragging the process out over several months so that the OP has apparently exhausted leave, asking for a second IME... that is not. It's time for them to decide.

 

[Iamnew2]

While that is obviously true, this is not related to performance or training--it is related to the process by which the program needs to decide if this trainee meets the technical standards or not. Asking for an IME, weighing whether accommodations are reasonable, etc, are all fair. Dragging the process out over several months so that the OP has apparently exhausted leave, asking for a second IME... that is not. It's time for them to decide.

I get the impression that we don't have the whole story here. And since we don't know the whole story or even what the concern is, not sure the lawyer route is the best option.

 

[GoSpursGo]

I get the impression that we don't have the whole story here. And since we don't know the whole story or even what the concern is, not sure the lawyer route is the best option.

That is always possible. But we can only go by what information we're given. If you check my post history, I'm just about as anti-lawyer as you can get when it comes to issues related to residency evaluation, dismissal for academic reasons, etc. But if there's a reason to involve a lawyer, this story sounds like about as good a reason as you might find.