In a recent emergency medicine listserv exchange several posters commented on the widespread abuse of emergency physicians made possible by their lack of due process “rights.” Perfectly innocent emergency physicians, nay even model citizens it was alleged, had been terminated on the spot purely on the whim of some grumpy hospital administrator with not a word of protest from the contract management group. As might be expected, the poster from the land of tenure and employment-in-perpetuity was the most aggrieved about this injustice, but others piled on as well, laying the original sin, like that of their alleged economic exploitation (never mind the facts), at the feet of the contract management groups. I found this curious for a number of reasons, not the least of which that I am getting pretty long in the tooth and in my 40+ years in and around ED staffing on both the light and dark side I’ve never seen this happen. This is not to say that I haven’t terminated my share of deserving miscreants on the spot for everything from intoxication to sex in the call room to masturbating a male patient “to collect a semen specimen.”
It is true, of course, that emergency physicians are routinely asked to sign an agreement with the hospital waiving the normal medical staff due process provisions as a condition of their medical staff privileges. But the behaviorally-challenged need not sign and could simply look elsewhere if they wanted to. As Dr. William Sullivan points out on his site “Med Law Chronicles,” due process is a “concept…” (not a right) “…arising from the Fifth Amendment to the U.S. Constitution stating that no person shall “be deprived of life, liberty, or property, without due process of law.” I’m reasonably certain that emergency medicine contract management groups were not present at the drafting of the Constitution, so that pretty much settles the attribution question once and for all. Imagining sinister motives on behalf of the CMG makes for a more sensational story, but the facts in this case just don’t support the tale.
The need for a waiver of due process arises as a consequence of the granting of an exclusive contractual right to provide one of the essential professional services of the hospital, in this case ED staffing. By granting exclusivity to the EM group the hospital puts itself in a position of potentially being held hostage by the contractor. Should the exclusive contract holder or one of its employees fail to perform to the satisfaction of the hospital or the group lose the exclusive contract, there must be a way for the hospital to instantly remove them and replace them with someone else if the hospital is to be able to continue to operate. A quick review of the literature reveals that these same provisions are frequently applied to radiologists, pathologists, anesthesiologists, and hospitalists as well.
The waiver of due process is not instituted for the sake of satisfying power trips, like the hospital administrator demanding that a doctor be fired because she doesn’t like the color of his shoes. There is no doubt that somewhere, some time, a hot-headed administrator demanded that a physician be terminated for what proved in retrospect to be a relatively minor infraction. But is this “widespread abuse?” No. I’ve seen administrators give ultimatums such as ‘either Dr. X goes or the group goes.’ But I’ve also seen cases where the administrator wanted someone fired but my relationship with him was such that I was able to secure the physician a second chance. And I’ve also seen groups small and large go to bat for the physician when he or she was clearly innocent of any intentional offense.
What has been much more common in my experience is that the physician group, independent or part of a larger entity, has known for some time that they have a problem physician but they have chosen not to intervene for a variety of reasons that may include aversion to confrontation and shift coverage concerns. Not infrequently in independent, equal ownership groups, this physician is a partner or owner, which makes intervention doubly difficult because everyone is, by definition, equal. This equality makes everyone feel powerless to confront a partner. Therefore, in this scenario, if there was a failure of due process on anyone’s part it was on the part of the EM group, more specifically the EM group’s governance and the ED medical director’s execution of his or her role.
One of the immutable lessons in people management is that no bad behavior ever gets better with watchful waiting. It always gets worse. Ergo, it makes sense to prepare for the eventuality of having to confront physicians – partners included – about their behavior, and to be able to do so expeditiously. The shareholder or operating agreement should anticipate this and the medical director’s job description should clearly grant him the authority to do so. I personally favor the following three-step approach:
Step One: “John, we have a problem we need to discuss together and see what we can do to fix it. Do I have your permission to do that and to offer some suggestions? Okay, good.” Then lay out the problem and discuss it. The associated action is: “For now, John, I request that you be more aware of how people around you perceive you and that a week from today we get back together and you tell me what you think you need to do to address and resolve this issue.”
Step Two: “Well, John, the interventions you suggested have apparently not been sufficient to resolve this issue. As the medical director I am obligated to move on to the next step but I am still hopeful that you can turn this situation around. I have every reason to believe that you can make the necessary changes with the right help. At this point we need to discuss my terms of satisfaction for you to continue on the schedule. I have put them in writing for you and I request that you sign my copy to evidence that you are aware of the serious nature of my concerns and that you commit to satisfying the terms of satisfaction to the best of your ability.”
The specific interventions are determined by the problem and may include a Dale Carnegie course, a specified number of sessions with a clinical psychologist, sometimes paid for by the group, or other action.
Step Three: “John, you have failed to meet the terms of satisfaction we agreed on. You and I are meeting today so that I can inform you in writing that you have two weeks to complete the terms of satisfaction and that effective immediately if there is one more incident of the same or similar behavior
I have the support of the Board of Directors to terminate your relationship with us. Please sign here to evidence your full understanding.”
If and when John again exhibits the behavior, the medical director must act and the governing body must back him up. To do otherwise weakens the medical director’s authority and sends the message to the whole department that the group is incapable of governing itself.