Medical residents are a hybrid of employee and student. They are employees of the hospital or medical center. But they are also students being prepared for unsupervised practice after completion of the residency. Residents, in their role as employees, are entitled to all the legal protections regarding the rights of employees (wage statutes, anti-discrimination laws, etc.). As an educator the residency program has an obligation to make sure that residents who have deficiencies in any of the ACGME competencies (knowledge, clinical skills, professionalism, etc.) are not allowed to complete the program and begin independent practice. Residents, in their role as students, must try and interpret how each of several attending doctors will evaluate them based on these competencies, many of which call for a purely subjective evaluation. The hospital’s obligation to keep patients safe underlies both roles.
The law protects a resident’s claim to residency training as a property interest that cannot be taken away without due process. Residents also have contracts with the programs and can bring claims for breach of contract. The ACGME has also implemented requirements that hospitals must have policies that protect residents’ due process rights in the event of suspension, nonrenewal, non-promotion or dismissal. These due process rights include written notice that the hospital intends to take the specific disciplinary action, a chance to review the evidence the hospital is relying on and an opportunity to advocate for themselves.
Residents wanting to advocate for themselves in opposition to disciplinary action have an uphill battle to fight. Residency programs are charged with making sure they do not graduate incompetent doctors. Because of this, courts have determined that programs have considerable discretion regarding disciplinary actions. An attending may evaluate a resident as not having sufficient medical knowledge, even where the resident has acceptable scores on all interim examinations. The category of professionalism can include everything from cheating on an exam to sharing a private joke about an attending with fellow residents. No formal hearing with lawyers present is required. When the resident appeals the disciplinary action, most programs do not allow legal representation in the hearing.
That does not mean, however, that a resident should struggle through the process alone. Residents are entitled to consult with lawyers at any stage of the disciplinary process. Typically, programs have an informal intervention process, a formal remediation process, and a probation process before they will terminate, suspend, or fail to promote a resident. During these preliminary processes, expectations to complete the process should be clear and in writing. There should be an agreed process by which the resident will demonstrate progress and get feedback. Without this documented clarity, the supervisor may be waiting for the resident to approach them for regular reporting where the resident is waiting to be told when those meetings will be scheduled.
A resident being subject to any disciplinary action should consider retaining counsel sooner rather than later. First, though, collect your documents: resident contract, program policies and procedures manuals, notice of disciplinary action and any other communications from the program relating to disciplinary action, all your evaluations by attendings, results of all interim examinations, and correspondence with attendings regarding your performance. Once a resident has been subject to a disciplinary action, the time to request a due process hearing may be only a matter of days, so you need to act fast.
If you have a question regarding your rights during a medical residency, contact Kristi Browne at firstname.lastname@example.org.