Newly introduced legislation aims to protect due process rights of EPs. “This is a dynamic and complex problem,” says Howard A. Blumstein, a professor of emergency medicine at Wake Forest School of Medicine in Winston-Salem, NC.

Without due process rights, EPs lose the ability to advocate for patients without fear of termination. Typically, contract holders form arrangements with hospitals to staff EDs; the contract holder hires EPs to perform the actual work.

“The hospital wants EPs to provide certain treatments but cannot dictate physician practice,” Blumstein notes. The hospital tells the contract holder what it wants from the EPs. “The contract holder then instructs the physicians to comply with the hospital’s desires. Those desires are often contrary to the best interests of patients,” Blumstein says.

EPs who do not comply can be fired without recourse since due process rights are waived routinely as a condition of employment. “Issues routinely happen where EPs are basically told how to treat patients,” Blumstein says.

Many hospitals and universities, and all government agencies, guarantee due process. “Contract holders do not like due process because it interferes with their ability to terminate a physician,” Blumstein notes.

It also gives EPs the opportunity to demand the reason for termination. “No contract holder wants to openly admit they are firing the physician for refusing to commit fraud,” says Blumstein, noting that punishment can go beyond just losing a job. “Most contracts contain restrictive covenants. These are often disguised as ‘trade secrets’ clauses.” Such clauses prohibit the fired EP from working within a given geographic area for a length of time, usually a 50-mile radius for two years. “This forces the physician to ... find a job more than 50 miles away, move, or quit medicine,” Blumstein says.

When offered employment, EPs often do not realize exactly what rights they are signing away. Residents often ask Blumstein to review their employment contracts. About 80% contain waivers of any due process rights. “When a physician gives up her due process rights, it means that the person emptying the trash in the ED has more job protection than the physician. I am not OK with that,” Blumstein says.

The residents have to make a judgment call on whether to accept the provision, and most do. Efforts to push back are mostly unsuccessful “A few who have tried to negotiate that clause have been told that is the company contract, and it’s not open for negotiation,” Blumstein reports.

In a 2013 survey of 389 EPs, nearly 20% reported a possible or real threat to their employment if they raised quality of care concerns.1 Blumstein, one of the study’s authors, says this remains a serious problem. “We know of some lawsuits where they reached a settlement without the hospital admitting guilt.”

Existing standards from The Joint Commission require hospital medical staffs to grant due process rights to physicians. “In that sense, we already have some protection,” says Joseph P. Wood, MD, JD, a Phoenix-based EP. Due process is not the only concern, according to Wood. Hospitals may resort to other tactics if they want to terminate an outspoken EP.

“They will suggest resigning with a clean record or otherwise they will have a hearing. If the EP is found culpable, he or she will have a blemish on their record,” says Wood, noting that there is no legal course of action for the EP in this situation. “Even if the emergency physician can prove that’s why he or she was fired, the courts would say there is no legal protection for that.”

Previously, most EPs were independent contractors. “The old paradigm created a healthy balance of power, if you will. ER doctors really had no problem voicing concerns, and administrators had to listen to them,” Wood recalls.

When EPs can be fired without cause, they are less likely to voice concerns. “Most EPs would agree there are problems with crowding and that EDs tend to be understaffed,” says Wood, adding that the lack of due process is linked to under-resourced EDs. “I never saw a surgeon operating in a hallway without proper equipment. They wouldn’t put up with it. But most EPs quickly learn that they have no job security and that speaking up is dangerous.” Legally, EPs have a fiduciary duty to put patients’ needs above their own monetary needs. This is not true of hospital administrators who are held accountable by board members, not individual patients. “The ER doctors’ judgment should not be clouded by directives to increase profitability or fears of being terminated,” Wood offers.

Regardless of the route they take to report safety concerns, there are considerable legal risks for EPs. Some EPs have filed qui tam lawsuits, a type of whistleblower suit brought under the False Claims Act. If successful, the whistleblowers potentially receive a share of recovered funds lost to fraud.

“If the lawsuit gets to a certain point, then the Department of Justice takes over and continues to pursue it,” Blumstein explains. The people who originally filed the case receive a negotiated portion of whatever fines or settlements are collected.

However, if EPs voice concerns about safety to hospital leaders, they sometimes face immediate termination. “We know of a lawsuit where an EP got fired for complaining about working conditions in an elevator, and got fired that afternoon,” Blumstein says.

Whistleblowing EPs also face possible repercussions from the physician group that employs them.

“An aggressive contract holder would not appreciate it if one of their doctors complained about staffing, and then the hospital complained back to the contract holder,” Blumstein says. It all comes down to the hospital’s culture. Some hospitals with a strong culture of safety encourage voicing concerns.

“On the other hand, if the working conditions are so bad and so dangerous that the emergency physician is frightened enough to formally complain about it, they wouldn’t want to work in that ED anyway,” Blumstein says.

The EP can always go public with safety concerns, but this carries risks, too. “You have to be very careful to get your facts straight, or you are putting yourself in legal jeopardy for slander,” Blumstein cautions.

EPs also face malpractice risks if unsafe practices continue and a bad outcome occurs. For instance, EPs might report safety concerns as part of a peer review process. If a bad outcome later occurred as a result of the safety problem, the EP might want to blame the hospital administrators who failed to act. Yet, in this scenario, the fact the EP had reported the concern would not be discoverable due to peer review protections.

“If I wanted to protect myself from being sued, I would not use the hospital safety system. I would write a letter to the appropriate people. That would be discoverable,” Blumstein offers.

Most states have enacted some form of whistleblower protections. “But that’s all theoretical. There’s no guarantee it would work,” Blumstein adds. EPs could consider calling the appropriate state regulatory agencies or accrediting bodies like The Joint Commission, which have put mechanisms in place to report concerns. Before taking any action, Blumstein suggests EPs closely review employment contracts to see what these documents say about due process protection. It is also important to review state whistleblower rules and fully understand what protections those rules offer. EPs should follow efforts to introduce legislation at the federal level, too.

The American Academy of Emergency Medicine developed a bill that would require the Department of Health and Human Services to create a rule mandating due process for EPs employed by lay corporations. Other emergency medicine organizations, including the American College of Emergency Physicians, have endorsed it. (Editor’s Note: The most recent version of this legislation, HR 6372, is available at: https://bit.ly/2P8LK5t.)

“We are currently working on getting bipartisan support for the legislation. Preliminarily, we’ve gotten nothing but positive feedback. We hope it will move forward,” Blumstein offers.

However, due process protection is not a panacea. “Contract holders have other means of getting rid of doctors they do not like,” Blumstein warns. “But denial of due process is a major tool they currently use to control doctors.” Even if legislation requiring due process is passed, nothing is absolute. “There is certainly still risk,” Blumstein notes. “But it would be much better if the EP had some form of protection. That’s what due process is all about.”

REFERENCE

  1. McNamara RM, Beier K, Blumstein H, et al. A survey of emergency physicians regarding due process, financial pressures, and the ability to advocate for patients. J Emerg Med 2013;45:111-116.