1. Hurwitz & Fine, P.C. Office of Graduate Medical Education Program Directors Presentation Grievances & Troubled Residents By: Janet J. Harszlak, Ph.D. GME Grievance Administrative Consultant GME Grievance Administrative Consultant By: Lawrence M. Ross Hurwitz & Fine, P.C. (Attorney for University Medical Resident Services, PC) March 11, 2008

2. Hurwitz & Fine, P.C. March 11, 2008 “PLEASE BE ADVISED THAT YOUR RESIDENT INTENDS TO FILE A GRIEVANCE WITH RESPECT TO THE RECENT ACTION TAKEN BY YOU.”

3. Hurwitz & Fine, P.C. What Should You Do?  Contact Office of Graduate Medical Education

4. Hurwitz & Fine, P.C. What Is Our Role?

5. Hurwitz & Fine, P.C. The Importance of Early Intervention Discuss grievance procedure policy Discuss grievance procedure policy Case review Case review * Evaluate strengths and weaknesses of grievance *Prior meeting(s) with Resident? Level I discussion Document Review Document Review * Complete? *Supportive of sanction? Preparation for grievance hearing Preparation for grievance hearing Consultation with legal counsel Consultation with legal counsel

6. Hurwitz & Fine, P.C. Why isn’t the Professional Judgment of the Program Director Respected More Often by the Grievance Committee? Insufficient notice of disciplinary action Insufficient notice of disciplinary action Non-compliance with UB policies Non-compliance with UB policies Non-compliance with “internal” (program) policies or criteria Non-compliance with “internal” (program) policies or criteria Sanction is disproportionate Sanction is disproportionate Documentation does not support sanction Documentation does not support sanction Inadequate or incomplete documentation Inadequate or incomplete documentation

7. Hurwitz & Fine, P.C. Recurrent Theme? Imprecise or ambiguous terms of probation or suspension Imprecise or ambiguous terms of probation or suspension

8. Hurwitz & Fine, P.C. Recommendation for Change Written notice Written notice Commencement date Commencement date Stated period (extension) Stated period (extension) Well conceived remediation program Well conceived remediation program * Specific objectives *Recommended activities *Counseling or intervention *Performance measures *Periodic evaluation Timely notice to supervising faculty Timely notice to supervising faculty Communicate consequences of failure Communicate consequences of failure

9. Hurwitz & Fine, P.C. Root Cause of Disciplinary Action?  May predate event that precipitated the disciplinary action!  Did you have prior notice of problem?  Warning signs

10. Hurwitz & Fine, P.C. Troubled Residents Sample Definition – Residents with problems who do not progress (respond well to remediation or discipline) or who engage in one or more acts of misconduct Sample Definition – Residents with problems who do not progress (respond well to remediation or discipline) or who engage in one or more acts of misconduct

11. Hurwitz & Fine, P.C. Troubled Residents (con’t) Disproportionate Source of Disciplinary Actions Disproportionate Source of Disciplinary Actions Disproportionate Source for Litigation Disproportionate Source for Litigation

12. Hurwitz & Fine, P.C. If we could go back in time, what could have been done differently?

13. Hurwitz & Fine, P.C. Self Help Measures

14. Hurwitz & Fine, P.C. ERAS Common Application Form

15. Hurwitz & Fine, P.C. ERAS Common Application Form Review for Completeness Review for Completeness Review for Accuracy Review for Accuracy Includes Continuing Representations Includes Continuing Representations

16. Hurwitz & Fine, P.C. Completeness

17. Completeness Is all residency training program experience disclosed? Is all residency training program experience disclosed? Any gaps in work or educational history? Any gaps in work or educational history?

18. Hurwitz & Fine, P.C. Accuracy

19. Accuracy - - Odd Explanations “I missed the deadline for the 2007 match. Therefore, I have to sit out a year while I apply now for the 2008 match!” “I missed the deadline for the 2007 match. Therefore, I have to sit out a year while I apply now for the 2008 match!” “I resigned from this program due to personal reasons and returned home to care for an infirm parent.” “I resigned from this program due to personal reasons and returned home to care for an infirm parent.” “I became unhappy with the program and withdrew in June, 2007.” “I became unhappy with the program and withdrew in June, 2007.”

20. Hurwitz & Fine, P.C. ERAS Application Representations are CONTINUING Representations Must disclose material changes in representations Must disclose material changes in representations Must disclose subsequent events Must disclose subsequent events

21. Hurwitz & Fine, P.C. Recommendation: Contact References

22. Hurwitz & Fine, P.C. Recommendation: Explore Red Flags “Our policy limits me to confirm dates of residency and education credit.” “Our policy limits me to confirm dates of residency and education credit.” “I am prohibited from talking about any corrective action taken with regard to this resident.” “I am prohibited from talking about any corrective action taken with regard to this resident.” “The matter is currently in litigation.” “The matter is currently in litigation.”

23. Hurwitz & Fine, P.C. Recommendation: Conduct a Personal Interview Observe personal demeanor Observe personal demeanor Confirm language skills Confirm language skills Determine VISA status Determine VISA status If telephone interview, confirm identity If telephone interview, confirm identity

24. Hurwitz & Fine, P.C. Recommendation: Do not execute and deliver Residency Employment Agreement prior to receipt and review of application

25. Hurwitz & Fine, P.C. Recommendation: Require acceptance within 30 days of offer. Be wary of delays

26. Hurwitz & Fine, P.C. Does Everyone Deserves a Second Chance Question: When does duty to society and profession outweigh natural empathy for Resident’s chosen career path?

27. Hurwitz & Fine, P.C. Troubled Residents: Rush to Judgment  Bypass Remediation for Probation

28. Hurwitz & Fine, P.C. Factors? Various incidents over time (crescendo) Various incidents over time (crescendo) Declining resident morale Declining resident morale Increasing faculty dissatisfaction Increasing faculty dissatisfaction Third party complaints Third party complaints

29. Hurwitz & Fine, P.C. Troubled Residents: Assessment and Evaluation Unwanted Delay in Taking Action

30. Hurwitz & Fine, P.C.Factors Inexperienced faculty supervision Inexperienced faculty supervision Difficult Resident Difficult Resident Avoid institutional processes (grievance hearing) Avoid institutional processes (grievance hearing) Poor Internal Controls: Unaware of failure to progress Poor Internal Controls: Unaware of failure to progress Preference to Handle Informally Preference to Handle Informally Ignore Warning Signs Ignore Warning Signs

31. Hurwitz & Fine, P.C. Consequences of Unwarranted Delay

32. Hurwitz & Fine, P.C. Consequences of Unwarranted Delay Non compliance with duty to assess and evaluate skills Non compliance with duty to assess and evaluate skills Avoids responsibility to remediate Avoids responsibility to remediate Provokes resident’s ire Provokes resident’s ire Impact on program Impact on program On program director (frustration) On program director (frustration) On residents (morale) On residents (morale) On patients (quality of care; risk of harm) On patients (quality of care; risk of harm)

33. Hurwitz & Fine, P.C. Troubled Residents: Rush to Judgment  Inadequate or No Documentation

34. Hurwitz & Fine, P.C. Troubled Residents: Rush to Judgment (con’t)  Documentation does not support identified deficiencies * Inconsistent evaluations * Action may raise questions about program integrity * Unlawful discrimination * Concerns about ACGME complaint

35. Hurwitz & Fine, P.C. Troubled Residents: Rush to Judgment (con’t)  Disproportionate Penalty * Materiality * Frequency of problem * Close in time to incident? * Notice?

36. Hurwitz & Fine, P.C. Troubled Residents: Rush to Judgment Compliance with Policies

37. Hurwitz & Fine, P.C. Troubled Residents: Compliance with Policies (con’t)  The importance of compliance * Due process (Grievance Procedures)  Notice  Opportunity to be heard

38. Hurwitz & Fine, P.C. Troubled Residents: Compliance with Policies  The importance of compliance (con’t). * ACGME standards for accreditation  Professional judgment respected  Departure from accepted academic norms. * Key Policies  Evaluation  Promotion  Harassment  Non-renewal  Termination

39. Hurwitz & Fine, P.C. Troubled Residents: Compliance with Policies (con’t)  Balance between academic or educational goals and employment law principles

40. Hurwitz & Fine, P.C. “The End”