Armando D. Meza MD Associate Professor of Medicine Associate Dean GME TTUHSC-PLFSOM El Paso Program Directors Training Course Selected Topics PDTC-9 Disciplinary Policy Resident Evaluation: A Focus on Failing to Fail

Michael Swango • Born: 1954, Tacoma, • Decision is made to delay his Washington. graduation date by one year. • Valedictorian in HS. • His dropped from his prior matched program but • He enrolled in Southern reapplies. Illinois University School of • In 1983 he starts a NS residency Medicine. at Ohio State. -- Performance uneventful • Unexpected patients’ deaths until his last year of school. are associated with him and his – 1983, matches for contract is not renewed. neurosurgery. • In 1984 he is rehired as an EMT. – He fails his last rotation due • In 1985 he is convicted of to plagiarism or fabrication. aggravated battery. – Case referred to the Student Progress Committee. Michael Swango

• 1991 he changes his name to • 1994 his is working as a chemist Daniel J. Adams. in Atlanta. • In 1992 he is hired as a • 1994 he moves to Zimbabwe physician Sanford USD Medical and starts practicing medicine. Center in Sioux Falls with • He then crosses to Zambia and falsified application then Namibia. information. • 1997 he is arrested at Chicago- • Swango is fired a few months O’Hare on his way to Saudi later. Arabia. • Swango manages to start a • He eventually pleads guilty and Psychiatric residency at Stony is sentenced to 3 consecutive Brook but is fired when his past life terms. is discovered.

Residents in Trouble

• Typical scenario: • Reality: – Surprise – A pattern – Oddity – Overlooked – A fluke – Never addressed – An accident – Never remediated – A rare event – Allowed to continue – Give them another opportunity Potential Explanations

• Faculty not competent • Do not want to “ruin” to identify these their career. residents. • “Pass the buck” culture. • Ignorance of the due • Lack of an adequate process. system to remediate • “No failure” culture. these individuals. • Fear of retaliation. • Service needs. • Fear of legal action. “True Cost” of Failing to Fail

• Low morale. • Feeling of no repercussions for the inappropriate behavior by the resident. • Poor patient care. • Need to fill the gap for the resident’s deficiencies. • Poor message to the society about our own profession. – IOM Report. Residence Performance Problem Definition:

“When a resident has been noticed for negative reasons by more than one faculty member” Resident Performance Problems

• Knowledge. • Clinical Skills. • Professional Behavior. Surgery 2009;145:651-8 Academic Deficiency (AD) vs. Misconduct (MC) • AD • MC – Usually medical – Usually related to knowledge. professionalism. – Usually easier to identify – More difficult to – It can also be related to differentiate from an AD professionalism. – It does not need to – Acculturation. follow a due process. – Usually follows a disciplinary process. Underlying Issues of Poor Perfoming Residents • Poor training. • Poor copying skills in a • Legal and illegal drug highly stressful use and abuse. environment. • Poor adaptation to • Underlying psychiatric residency. disease. – Impact of the CPR • Lack of acculturation . • Duty hours • Poor career selection. • Supervision • Fitness for duty • Disability. Overcoming the Barriers

• Careful selection of • Establish clear goals, residents that best objectives and “match” the program. expectations to the • Selection and training of residents about their faculty with the skills and performance. attitude to be part of a • Have timely feedback and training program. evaluations for both residents and faculty. • When residents’ problems arise to have a structured due process.

Disciplinary Actions

• Verbal reprimand. • Notice of concern. • Observation. • Extension of training. • Remediation. • Probation. • Non renewal. • Non promotion. • Dismissal. Academic Due Process

“The one that provide a resident with actual notice of his/her deficiencies and an opportunity to cure those deficiencies, together with a reasonable decision-making process” Academic Due Process

• Does not necessarily need to be progressive. • Due process does not necessarily have to have a “fair hearing” (appeal) component. • Academic probation should not be a obligatory requirement before a disciplinary action is taken. Legal Concerns

• What does fair and equitable treatment entail? • What are the due process requirements? • Are negative performance evaluations libelous and defamatory? Fair and Equitable Treatment

Case: A student is unable to pass a required exam and is not given the opportunity to retake it based on the review of the entire record and is dismissed. The student sued alleging breach of contract and discrimination because he was the only out of the last 40 not allowed to retake it. The court’s decision supported the school. Fair and Equitable Treatment • Professional Judgment. – Judges may not override a decision unless there is substantial departure from professional judgment. • Arbitrary and Capricious action. – The burden of proof is on the student. – Neither of the above when exercised honestly and upon due consideration. – Faculty have the right to make the wrong decision for the right reasons. • Judicial non intervention. – Faculty must have the widest range of discretion in making academic performance judgment. Due Process for Academic Dismissals Case: a resident is hired and his contract states he will remained in the program for the duration of the training unless sooner terminated and subject to periodic review. Four months prior to his end of contract he receives notification his contract will not be renewed. He sues claiming he was entitled to notice and a trial-type hearing prior to dismissal. Due Process for Academic Dismissals • The court held that the decision should not be overturned unless there is clear evidence of arbitrary and capricious action. • Due process does not require a full adversary hearing either before or after termination. • It is not necessary to wait until harm is done in order to discipline a resident. Due Process: What the Resident Should Receive • Notice of deficiencies and consequences if they are not remediated. • An opportunity to review the evaluations. • An opportunity to respond. Documentation

• Documentation: – None may be enough but more is better. – Patterns are discovered when information is shared. – Should be descriptive, separate observation from interpretation, and include subjective impression labeled as such. – If a faculty is not willing to put it in writing the PD can generate a memorandum and send a copy to the faculty member. Defamation and Libel

• Defamation: Is the communication of a statement that makes claim, expressively stated or implied to be factual that may give a negative image. • Libel: Is defamation in written form. * Slander: spoken defamatory statements. Case

A student alleged defamation and breach of contract when the institution declined to issue a certificate of completion to a resident due to evaluations on the clinical performance. The student alleged that faculty made defamatory statements in the course of their unfavorable evaluation of his clinical work. The Court Ruled…

• The negative evaluations were not defamatory. – Student implicitly consents to have evaluations on him/her. – Because the statements made were relevant to the performance. – Publication of results were limited to the persons with a need to know. Our System…

• Allows each training programs to develop disciplinary processes independently but in alignment with the ACGME and institutional policies. • If a “severe” disciplinary action is taken, as defined in the policy, an appeals process is available as a resource to the resident.

Conclusion • Resident evaluation is a fundamental aspect of residency education. • Proper evaluation tools as well as training of the evaluators and evaluees is critical to the effectiveness of this function. • A clear, structured disciplinary action process is an institution’s responsibility to facilitate the training programs’ implementation. • An adverse action appeals policy is a resource also available for programs use as necessary. End