Managing the Poorly Performing Resident: Related Legal Issues

1. Managing the Poorly Performing Resident:Related Legal Issues Presented By Joan Stoddard/Sarah H. Arnholz Partners HealthCare Office of the General Counsel March 15, 2011

2. Topics Covered Performance Related Documentation Disciplinary Action Challenging Disciplinary Action Board of Registration in Medicine Reporting Requirements Fitness for Duty Physician Health Services

3. The Evaluative Process Beyond their educational importance, performance evaluations and documentation relating to corrective action serve an essential function in the legal arena These documents can provide a clear explanation and justification for disciplinary action if the resident appeals under the Partners internal process or brings an outside legal challenge They allow Partners to demonstrate fairness in its actions and a legitimate, performance-based reason for the action

4. Are Evaluations Confidential?Are they Discoverable? Evaluations should be maintained and treated as confidential Two legal categories supporting confidentiality: Evaluations are personnel records: not available to third parties upon request unless authorized by resident or ordered by court; available to resident Evaluations are peer review documents: not discoverable in court proceeding, but available to Board of Registration in Medicine upon subpoena; also available to resident

5. The Personnel Records Statute In Massachusetts, a “personnel record” is defined by law and covers a broad range of documents whether or not kept in a single file Employees are entitled to see and request a copy of their personnel record Under recent amendments to this law, employers are required to inform employees within 10 days if information is placed in their record that is or may be used to negatively affect their status; important to communicate directly with resident about complaints or concerns placed in the file

6. Retention of the Evaluations Department should maintain evaluations and other records for at least three years after resident completes or leaves the program Department should maintain these records for a longer period if legal action is possible or resident relationship is otherwise problematic

7. Corrective Action Not all remedial or corrective steps constitute “disciplinary action” “Disciplinary action” has a legal definition and significance A “disciplinary action” must be reported to the Board of Registration in Medicine and may trigger internal appeal rights

8. Reportable Disciplinary Action The Board of Registration in Medicine defines “disciplinary action” in its regulations to include the following: “Revocation of a right or privilege” “Suspension of a right or privilege” Written reprimand And many other actions if they relate to a physician’s competency to practice or a violation of law

9. Probation and Other Corrective Action Probation generally is not a “disciplinary action” that must be reported to the Board of Medicine by the Hospital, unless it arises out of the filing of a complaint or other “formal charges” reflecting on the trainee’s competence to practice medicine But probation typically will have to be disclosed by the resident on a future licensure, credentialing or employment application Other non-reportable actions include warnings or counseling

10. Tips for Successfully Imposing Corrective Action Seek help early and often: GME and OGC are resources Address issues in a timely way; don’t wait to respond to concerns Documentation: file memos are not enough; resident needs to receive direct written notice Be clear about what is expected and consequences if expectations are not met Assessment should accurately reflect the concern: neither overstate nor under-state the performance issue.

11. Tips for Successfully Imposing Corrective Action (cont’d) Follow up is crucial Follow progressive steps unless situation calls for escalated action Be careful of use of terminology to avoid unintended reporting requirements

12. Legal Challenges to Disciplinary Action Resident may appeal certain disciplinary actions under Partners graduate trainee adverse action policy: Revocation/termination Suspension Restriction, reduction, non-renewal of privileges if related to competency or violation of law Resident may also bring MCAD or court action claiming discrimination, harassment or retaliation in response to the corrective action

13. Fitness for Duty Evaluations A fitness for duty evaluation is the assessment and determination of a physician’s ability to practice medicine with reasonable skill and safety When should these evaluations be used? Fitness for duty evaluations can raise tricky legal issues: disability discrimination Process of evaluation: Occupational Health What is the Program Director entitled to know?

14. Physician Health Services Physician Health Services (PHS) is affiliated with the Massachusetts Medical Society and provides evaluation, support and monitoring services to physicians in Massachusetts who are experiencing or are at risk for health related concerns PHS does not provide fitness for duty evaluations Partners has worked effectively with PHS in addressing health-based performance concerns of physicians, including substance abuse and mental health issues

15. Questions