Minicucci, Richard F.; Lewis, Bryan F.
Undergraduate and graduate medical education (hereinafter “medical education” or “ME”) is a high-stakes enterprise. For those involved, success and failure at any stage of the process affects their access to a competitive education, their ability to enter a chosen specialty and career, and ultimately their professional reputation. Given the intense pressures on medical students, residents, and faculty members alike, it should come as no surprise that both student and teacher-participants in ME have frequently used the courts to remedy perceived wrongs or challenge career-threatening decisions.
To date, however, the phenomena of litigation in the ME context has only been generally explored,1 and no scholarship has meaningfully addressed ME litigation through the most recent ten-year period (1993–2002). This study looks at reported cases over the past ten years in which a medical student, resident, or faculty member was a party to ME-related litigation to identify areas where medical institutions are particularly vulnerable to lawsuits. The discussion then turns to ways that institutions can protect themselves in the future.
Using the LEXIS/NEXIS online legal database (“LEXIS”), this study identified cases from 1993-2002 in which a medical student, resident, or faculty member was involved in a lawsuit with their respective institution or some other aspect of ME. LEXIS is a widely-used, subscriber-based database that collects cases reported at the state and federal level. Like other web-based search engines, LEXIS allows users to conduct full-text Boolean searches of decisions and materials in the database by entering relevant terms and phrases. Since this study sought to identify a wide range of issues and cases involving ME, broad searches were conducted with an emphasis on inclusiveness.
Once identified, cases were scrutinized to determine the relative postures of the litigating parties, the issues litigated, and the types of legal claims involved. Cases were categorized according to student, resident, or faculty involvement, and were then analyzed to determine the role of ME participants in the litigation (i.e., plaintiffs or defendants) and the nature of the legal claims raised. Every effort was made to categorize claims precisely, but not at the expense of blurring statistical trends with overspecificity. This primarily impacts the various state common law claims, where plaintiffs were often quite creative in framing their cause of action. In such instances generic categories were created to convey the basic nature of the claim.
We must note that there are inherent limitations to this type of legal research. First, the vast majority of cases are settled or discontinued well before a decision is reached in the case. Furthermore, not every case that comes before the courts is “reported.” Only appellate level decisions are regularly reported and published. The federal courts and some states occasionally publish trial level decisions, but such instances are the exception to the rule. Thus while all available reported decisions were considered, the data set primarily consists of appellate level decisions. Accordingly, the litigation “totals” reported by this study should not be viewed in an absolute sense; they are more appropriately seen as a representative percentage of the entire body of ME litigation.
During the ten-year span from 1993 to 2002, this study identified 329 cases that involved medical students, residents, faculty members, or ME institutions as parties to ME-related litigation. While a small number of cases involved institutional litigants only, the vast majority (302) involved students, residents, or faculty members as parties to the litigation.
Sixty-three percent of the resident cases (108/171) were brought by residents against their employer institution; 40% of those (43/108) named faculty members as co-defendants. Thirty-seven percent of the faculty lawsuits (40/107) were against their employer institutions, and nearly all of the student cases (96%) were brought against their medical school or university.2
Although ME participants brought a variety of different claims against their respective institutions, the vast majority could be broadly characterized as “employment” claims. That is, nearly 60% (172/302) of the cases and 80% (259/323) of the claims brought against institutional defendants directly challenged institutional actions which affected an ME participant's status at the institution, whether it be rejection, demotion, or dismissal from their respective institution or educational program. Of these claims, more than half involved allegations of discrimination.
The most frequently occurring claim for both resident and faculty plaintiffs involved allegations of institutional and/or faculty discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).3 Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Of the Title VII claims, race and national origin discrimination claims occurred the most frequently, followed by gender and sexual harassment claims. These cases typically challenged the grounds asserted for dismissal, and alleged that the reasons stated were pretextual, invented by the institution to cover up its discriminatory motives.4
Sexual harassment claims also fall within the purview of Title VII. In such claims, the issue is generally not whether the termination was pretextual, but whether a person was terminated in retaliation for filing a complaint against a coworker. Though sexual harassment cases were brought by each type of ME participant, they were most frequently brought by residents against faculty supervisors.5
Whereas both resident and faculty cases were predominantly brought under Title VII, the discrimination claims most frequently asserted by medical students fell under the Americans with Disabilities Act (“ADA”).6 The ADA gives civil rights protections to individuals with disabilities and guarantees equal opportunity in public accommodations, employment, transportation, government services, and telecommunications. The principal issues in such cases are whether a student is, in fact, disabled, and whether an institution took appropriate measures to accommodate the student's disability.7
ADA and Title VII claims were rarely asserted in isolation, and several alternative discrimination theories were frequently joined in one action.8 Interestingly, most cases arising under Title VII, the ADA, or other discrimination statutes were only brought after termination, and in many, if not most, of the cases analyzed, there was no evidence of complaints while the individual was still employed. Due to this lack of tangible evidence, these cases often degenerate into a type of “he said, she said,” with the institution frequently winning due to the plaintiff's failure to meet his/her burden of proof.
The remaining employment-related claims found in the study can be characterized as due-process claims (13%), breach of employment contract claims (13%), straight challenges to an institution's decision to dismiss a ME participant (6%), and assorted state tort claims (6%).
The due process claims typically alleged that an institution failed to have or adhere to established policies for reviewing, promoting, disciplining and terminating ME participants. Due process cases were invoked at relatively high rates for all ME participants. For residents and faculty, due process claims frequently involved allegations that the institution did not follow established in-house policies, or alternatively, that the institution otherwise took a valuable property right (i.e., their residency or promotion) without providing participants a means to challenge the evidence against them. Such cases arose in a number of contexts, including a resident's termination from a residency program or the refusal by a state medical accreditation agency to approve an application by a foreign medical resident.9 For students, due process claims frequently arose after expulsion for poor academic performance or academic dishonesty.
The remaining cases were widely dispersed and difficult to categorize. Some examples include residents bringing actions under the Federal False Claims Act as whistleblowers, students asserting their First Amendment right to free speech, and on one occasion, a faculty member claiming professional discrimination after he testified as a plaintiff's expert in a medical malpractice case. These claims constitute less than 10% of the cases analyzed in this study.
Of the cases identified by this study, institutional defendants won better than 90% of the time. This fact can be somewhat misleading. More than individual litigants, institutional defendants are likely to settle lawsuits early, particularly where the lawsuit involves negative publicity or is perceived as a “loser.” The logical corollary is that where institutions do fully litigate such cases (and perhaps pursue an appeal), the institution may believe it has a strong case, resulting in a correspondingly high success rate.
Though such factors must be taken into account, institutions likely still “win” the vast majority of cases litigated for wrongful termination and/or employment discrimination. Nonetheless, the reality of modern litigation is that the costs are not based on winning and losing, but are embedded in the process itself. If hospitals and other institutions wish to alleviate the number of cases being brought by ME participants and mitigate the associated costs of litigation, institutions must take careful preemptive measures to ensure that cases do not arise, and if they do, to ensure that they are directed to a prompt and less expensive conclusion.
The short answer for accomplishing this is, in part, to conduct due diligence before the hiring of any resident or physician and only hire those who evidence competent, ethical, and professional behavior. Once hired, institutions must evaluate the professional fairly and honestly. Be consistent in the manner in which professionals are treated. If an untoward activity occurs, fairly, faithfully and indiscriminately apply the institution's evaluation, remediation and due process protocols.
This is, of course, easier said than done. For example, despite qualified immunity provisions protecting credentialing activities, former employers are still hesitant to candidly assess former employees for fear that a defamation suit will result. While an institution cannot control a former employer's willingness to speak, it can exercise due diligence by verifying the truthfulness of an individual's application. Taking that time in the beginning of an employment relationship will help ensure that quality individuals are hired.
In this study, discrimination, wrongful termination, and due process claims accounted for nearly 75% of those brought against institutions by ME participants. At the heart of every discrimination and wrongful termination case is the plaintiff's assertion that his/her academic or professional performance did not warrant dismissal; at the heart of every due process claim is an allegation that the institution failed to follow or establish minimum procedural safeguards. By establishing standards, clearly articulating responsibilities, and regularly and faithfully utilizing a comprehensive plan for reviewing, promoting, disciplining and terminating ME participants, an institution can help insulate itself from potential claims brought by student, resident, and faculty plaintiffs.
However, evaluation, remediation and due process plans become meaningless unless employees are educated on their content, effects, and the importance of applying them to every aspect of ME life. Faculty evaluators, for example, cannot be allowed to shirk their responsibility by failing to candidly, timely, and objectively review and evaluate a resident when requested or circumstances warrant. All relevant events in a student or resident's education, positive and negative, must be fully documented. Anything less leaves the institution vulnerable to meritless claims and costly litigation.
Similarly, summary determinations regarding promotions and employment status, no matter how “clear cut” they seem, will inevitably leave an institution open to due process claims unless established procedures are followed to the letter. Failure to allow even the least-deserving physician an opportunity to be heard can only result in needless litigation down the line.
Since nearly three-quarters of the claims lodged against institutions by ME participants allege institutional discrimination, the failure to provide adequate due process protections, or directly challenge the basis for an institution's employment decision, it is crucial that institutions evaluate their internal policies and procedures regarding physician review, promotion, and termination. By instituting these important changes, and ensuring that both administrative and medical personnel follow such procedures to the letter, institutions can effectively limit their vulnerability to this most frequent cause of litigation. Though such measures cannot ultimately render a facility immune from litigation, they can place institutions in a position to effectively and inexpensively address such claims.
1.Helms LB, Helms CM, Biggs SE. Litigation in Medical Education: Retrospect and Prospect, 11 J Contemp. Health L. & Pol'y 317 (1995). This comprehensive work, which chronicled historic litigation trends in the ME context from 1942 until 1992, was of immense help. Although this effort differs in both scope and focus, their methodology provided the standard for this type of legal research.
2.The overlap in these figures results from cases that involve multiple ME participants, i.e., a case where a student sued a faculty member was applied to both the student and faculty statistics.
3.Title VII, like Title IX (gender discrimination in education), the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Rehabilitation Act (employment discrimination against individuals with disabilities in the federal sector), is a federal statute enacted to combat discrimination on a national scale. Many states have enacted laws that often mirror or supplement their federal counterpart. References to any of the above-mentioned federal statutes implicitly include their state counterparts.
4.In Tomita v. Univ. of Kan. Med. Ctr
., 227 F. Supp. 2d 1171 (D. Kan. 2002) a faculty member alleged race and national origin discrimination and presented evidence that he was unequally compensated, that other employees did not meet certain goals set in their performance evaluations, and that he was given harsher evaluations than others. The court ruled that plaintiff's evidence was meaningless without information regarding the duties and contributions of other faculty, and noted that plaintiff had not shown that defendants' facially nondiscriminatory reason for dismissal (that the employee contributed less than others) was pretextual.
5.In one reported case, a female resident recounted numerous harassing and discriminatory comments from her faculty supervisor in what amounted to a textbook case of harassment. Smith v. St. Louis Univ
., 109 F. 3d 1261 (8th Cir. 1997). Defendant refused to refer to plaintiff and other female residents as “Doctor, ” repeatedly told plaintiff that she was there to fill a “female quota, ” commented on her looks, and and referred to plaintiff and another female resident as the “anesthesia babes.” Plaintiff complained and eventually left the residency program, only to have her former supervisor negatively review her performance to two prospective employers. Plaintiff won her case under Title VII for sexual harassment, gender discrimination, and retaliation.
6.It is not entirely clear why medical students primarily allege causes of action under the ADA, while residents most frequently utilize Title VII. One explanation is that the rigors of ME have the unfortunate effect of “weeding out” disabled aspirants prior to attaining a residency. Another reason could be that residents, once completing school and entering profession, are less likely to assert disability as cause for firing.
7.A student with epilepsy and glaucoma alleged that defendant medical school and examining board discriminated against him in connection with a standardized test by denying him the additional time requested. Hunt v. Meharry Med. College
, 2000 U. S. Dist. LEXIS 7804 (S. D. N. Y. 2000). Similarly, a resident brought an ADA claim for an illness that allegedly caused him to be excessively absent. Langsford v. Yale Univ. Sch. of Med
., 39 Fed. Appx. 683 (2d Cir. 2002).
8.Worth mention is the Age Discrimination in Employment Act, which prohibits employment discrimination against persons 40 years of age or older. Predictably, this Act is most frequently invoked by faculty plaintiffs. See Veleanu v. Beth Isr. Med. Ctr
., 2000 U. S. Dist. LEXIS 13948 (S.D.N.Y. 2000) (alleging that resident's termination resulted from defendant institution's desire to establish a staff of younger, female physicians).
9.Singha v. North Dakota State Bd. of Med. Examiners
, 1998 ND 42 (ND 1998). Plaintiff doctor graduated from the British School of Osteopathy (B.S.O.), but was denied a license to practice medicine in North Dakota because B.S.O. was not accredited by an approved accrediting body. The court found that there was no indication the doctor was afforded a formal hearing and held for the plaintiff.