By: Janet J. Harszlak, Ph.D. GME Grievance Administrative Consultant By: Lawrence M. Ross

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

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

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

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

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

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

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

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

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

10. 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 Hurwitz & Fine, P.C.

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

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

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

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

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

16. Completeness Hurwitz & Fine, P.C.

17. Completeness • Is all residency training program experience disclosed? • Any gaps in work or educational history? Hurwitz & Fine, P.C.

18. Accuracy Hurwitz & Fine, P.C.

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 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.” Hurwitz & Fine, P.C.

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

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

22. Recommendation: Explore Red Flags •  “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.” • “The matter is currently in litigation.” Hurwitz & Fine, P.C.

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

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

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

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

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

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

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

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

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

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

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

34. 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 Hurwitz & Fine, P.C.

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

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

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

38. 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 Hurwitz & Fine, P.C.

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

40. “The End” Hurwitz & Fine, P.C.