There have been several headlines recently about emergency physicians being fired or suspended from their jobs after speaking out on social media about their concerns related to how their hospital systems were handling the COVID-19 pandemic. For example, Dr. Ming Lin was, “fired from his position as an emergency room physician at PeaceHealth St. Joseph Medical Center in Bellingham, Washington, after publicly complaining about the hospital’s infection control procedures.”¹ Dr. Cleavon Gilman was, “asked not to return to his work at Yuma Regional Medical Center for his social media posts about the severity of the COVID-19 pandemic in Arizona . . .”² Dr. Kristin Carmody, formerly of NYU Langone Hospitals, filed a lawsuit, “alleging that her December 2020 termination was an act of retaliation, and that she was defamed and discriminated against in the process of her ousting.”³

These highly publicized cases have led to significant discussion on social media, an approved resolution at the ACEP 2021 Council Meeting, and for one state, Arizona, passage of an anti-retaliation law. I want to discuss some history behind the current due process and anti-retaliation laws as well as current efforts to provide more protection for physicians in these challenging situations.

Due Process Rights

The United States concept of due process rights is firmly rooted in our Constitution’s 14th Amendment ratified on July 9, 1868. Section 1 states in part, “No State shall . . . deprive any person of life, liberty, or property, without the due process of law . …” “Property” is defined by the courts as, “tangible and intangible possessions . . . if they have real value.”⁴ This amendment’s protections, “in the medical setting . . . only protects individuals working in government hospitals, including federal, state, county, and municipal hospitals. Likewise, when a physician faces a suspension or loss of licensure from a state medical board, the physician has a right to a predeprivation hearing. Physicians working in private hospitals receive their due process rights from other sources.”⁵

Larry Weiss, MD, JD, FAAEM, wrote “Due Process White Paper” 15 years ago and it remains just as relevant today as it did then. He explains how due process rights were clarified by the Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976). He explains the Matthews court held “the amount of procedural protection depends on a flexible balance between the interests of government and those of the individual.”⁵ In Darlak v. Bobear, 814 F.2d 1055 (5th Cir. 1987), the Darlak court used the “flexible balancing rule to conclude an informal hearing satisfied the due process rights of a temporarily suspended physician, and a formal hearing before the hospital credentials committee satisfied the physician’s hearing rights prior to a final suspension.”⁵ Keep in

mind, this is referring to credentials and privileges and not employment.

The Health Care Quality Improvement Act of 1986 (HCQIA), which applies to all hospitals receiving federal dollars, further clarified physicians’ rights around due process, requiring, in part, a reasonable 30 day notice, right to legal representation at the hearing, right to call and question witnesses, opportunity to present evidence, a mutually agreed upon hearing officer, and receiving a written response as to the result of the hearing with a final right to appeal the decision (42 U.S.C. Sections 11101-11152). The Joint Commission also requires hospital medical staff to have due process rights and fair hearing procedures for physicians. It is the role of the hospital medical executive committee (MEC) to initiate these fair hearing processes as required, and any decision by the MEC regarding suspension of privileges must be approved by the hospital’s board of directors as a final check and balance. Some reasons for these type of actions against physicians include significant patient safety or quality events, disruptive behavior, or incompetent physicians.

This long but important legal background of due process and anti-retaliation protections for physicians is important to better understand the current real-world situation we practice in. The 14th amendment applies to the government, and what is required if the government tries to take away real or tangible property from an individual. The subsequent court cases from the Supreme Court and the 5th Circuit Court of Appeals apply the concepts in the 14th Amendment to hospital MECs. The MEC controls credentialing and privileging, and the denial or suspension of these property rights. The HCQIA of 1986 and the Joint Commission add specific requirements to what due process means in the hospital setting and with the MEC.

What Does Your State Say?

Where emergency physicians may get confused is that these protections do not currently apply to private employers in all states, except potentially Arizona. If a private employer wishes to terminate a physician, the employer and physician are both bound to the terms of the contract between the parties, which may or may not include any of the above due process rights. Assuming no duress in the process, these contracts are negotiated and agreed upon by both parties. It is easy to argue that these contracts are written by employer’s attorneys, and therefore are slanted in favor of the employer. However, the physician is ultimately responsible for understanding all the terms of the contract signed. Looking closely at reasons for, and the process of, termination is something many young physicians do not think about when they get their first employment contract out of residency. Also, with the current tight market for new graduates, I am concerned there will be fear from new graduates, or anyone looking for a new job, of asking too many questions or sharing too many concerns around termination conditions. The pressure to get a job could push someone to accept unfavorable contract conditions out of concern for unemployment. Clearly this creates a potentially unbalanced negotiation process.

This concern led leaders in ACEP to introduce Resolution 31(21) at the 2021 Council Meeting. “The ACEP Council adopted the resolution to submit a resolution to the June 2022 American Medical Association (AMA) House of Delegates Annual Meeting, ‘promoting the concepts of the Arizona House Bill 2622 (2021).’ The resolution also states the College will develop model legislation fashioned after the Arizona bill, which it will share with all ACEP chapters.”⁶ The resolution addresses these issues about doctors losing their jobs when they speak out about real concerns around patient safety and quality of care. It goes on to say “[e]mergency physicians have been retaliated against numerous times for raising concerns regarding patient safety, harassment, and/or fraud and these physicians have been affected mentally and financially as results of such retaliation and job loss and many report worsening anxiety, depression, financial hardships, family trouble and need to relocate….”⁶ Clearly there is work to be done in this area to level the playing field for doctors working for private groups and private systems. The State of Arizona understood this and what happened to Dr. Cleavon Gilman and acted upon these issues.

Rebuttable Presumption

Rebuttal presumption is a brand new civil law which has not been tested in the courts. It is strongly worded in favor of physicians and puts third party contractors in Arizona on notice, that if they terminate a health care professional within six months of an action the contractor does not approve of, it will be considered retaliatory until proven otherwise in court. Because Arizona chose to call this retaliatory action a “rebuttable presumption,” the employer taking the retaliatory action against a health care provider would have to prove more likely than not they did not do it based on retaliation. This is similar to, but somewhat opposite of, the rebuttable presumption in criminal law of innocent until proven guilty. In the criminal world, the prosecuting attorney has to prove guilt beyond a reasonable doubt. For example, if this was law in Washington state, Dr. Ming Lin could use this law against his employer, Team-Health, as a presumptive retaliatory action for his letter to the CMO at PeaceHealth St. Joseph Medical Center that he posted on Facebook. He still may have violated a termination clause in his contract, and his employer could be found justified, but this would force his employer to prove Dr. Lin’s termination was not retaliatory. If this was law in the State of New York, then Dr. Kristin Carmody could also use it in her case against NYU Langone Hospitals.

Safely Reporting Concerns

Health care workers do have other protected ways to report patient and employee safety concerns. There are federal and state laws that “prohibit employers from retaliating against employees who report practices by employers that threaten public health and safety, or violate the law . . . Although the laws vary from state to state, anti-retaliation laws generally prohibit adverse actions such as termination, layoff, demotion, suspension, denial of benefits, reduction in pay, and discipline, when the adverse action is taken in retaliation for employees’ reports of unsafe or unlawful practices.”⁷ In most situations this reporting can be done publicly or anonymously if a health care worker is concerned about retaliation from their employer. The state and federal government want to protect appropriate whistle blowers and encourage reporting of concerning events, even if after investigation found to be not significant or a violation of state or federal law.

I hope after reading this, emergency physicians understand there are multiple ways to report perceived unsafe practices to the local, state, and federal authorities. These include state and local health departments, state Medicaid officials, your state Medicare contracted BFCC-QIO contractor such as Livanta and Kepro, the Joint Commission, and OSHA to name just a handful. Many of these can be anonymous if that is your preferred way to report. Also, if you send emails/other correspondence, save them, and consider even sending things certified mail when needed. Your first step should not be social media. Familiarize yourself with all of these options, your contract terms, and your medical staff bylaws before you go to social media. The social media postings may get the most publicity, but may not always result in the desired outcome of increasing patient and employee safety efficiently and effectively. ACEP is helping move the protection of physicians forward through the AMA and local state ACEP Chapters. It is estimated that only 15 percent of practicing physicians belong to the AMA, so hard work at the state chapter level will be needed to move the Arizona concept forward to other states for adoption.

Dr. Naber is associate chief medical officer at UC Health, Drake Hospital in Cincinnati and associate professor of emergency medicine and medical director of UR/CDI at University of Cincinnati Medical Center.

References

1. Will Stone. The Coronavirus Crisis: An ER Doctor lost his job after criticizing his hospital on COVID-19. Now He’s suing. NPR news web site. Available at: https://www.npr.org/sections/healthshots/2020/05/29/865042307/an-er-doctor-lost-his-job-after-criticizing-his-hospital-on-covid-19-nowhes-sui. Published May 29, 2020. Accessed June 24, 2022.
2. Jamie Landers. “A slap in the face”: Yuma hospital fires ER doctor for talking about COVID-19 in Arizona. Azcentral web site. Available at: https://www.azcentral.com/story/news/local/arizona-health/2020/12/10/cleavon-gilman-fired-yuma-hospital-speaking-outcovid-19/3888981001/. Published December 10, 2020. Updated December 11, 2020. Accessed June 24, 2022.
3. Kara Grant. Fired Doc sues NYU for Discrimination, Defamation, and Retaliation. MedPage Today website. Available at https://www.medpagetoday.com/special-reports/exclusives/94989. Published October 12, 2021. Accessed June 24, 2022.
4. The US Constitution, Amendment 14.
5. Weiss, LD. AAEM white paper on due process rights for physicians. J Emerg Med. 2007; 33:439–440.
6. ACEP Council Resolution 31(21). Subject: Employment-Retaliation, Whistleblower, Wrongful Termination. Available at www.acep.org/globalassets/uploads/uploaded-files/acep/about-us/leadership/council/2021-resolutions-compendium.pdf. Accessed June 24, 2022.
7. National Nurses United. Whistleblower Protection Laws for Healthcare. National Nurses United website. Available at https://www.nationalnursesunited.org/whistleblower-protection-laws-for-healthcare-workers. Accessed June 24, 2022.