Physicians who sign contracts with hospitals or staffing companies are often forced to agree to due process waivers. Here’s what due process means and how physicians can try to combat due process waivers.
Dr. Ming Lin was fired from PeaceHealth St. Joseph Medical Center in Bellingham, Washington after repeatedly criticizing a St. Joseph’s response to the COVID crisis on Facebook. Twenty minutes before his shift was scheduled to begin, he was reportedly told by his director from TeamHealth that his contract had been terminated. St. Joseph’s reportedly did not return e-mails seeking comment about Dr. Lin’s termination, but St. Joseph’s CEO, Charles Prosper, insisted that the hospital was taking COVID preparations seriously. TeamHealth reportedly denied that Dr. Lin had been terminated. Several stories about Dr. Lin’s termination can be found at news agencies across the country such as US News and World Report (Doctor Loses Job After Criticizing Hospital’s Virus Response), Time Magazine (A Washington ER Doctor Was Allegedly Terminated After Publicly Criticizing His Hospital for Not Protecting Its Staff), and the Seattle Times (ER doctor who criticized Bellingham hospital’s coronavirus protections has been fired)
Many people have questioned how a hospital can just fire a physician like this. Keep reading to see why such terminations occur regularly in certain physician specialties.
Hospital Credentialing, Due Process And Hospital Bylaws
Physicians must go through months of credentialing before they can begin working at a hospital. They must complete an application. Hospital staff must query the NPDB and check references to make sure that the physician’s prior performance does not raise any concerns. A hospital committee must then review the physician’s application. Only after completing all of the credentialing steps may a physician begin practicing medicine at a hospital. Once a physician has been accepted onto a medical staff, the hospital bylaws provide the physician with some protections from being removed from the medical staff. In general, once a physician has been appointed to a hospital medical staff, hospital bylaws require “due process” before a physician can be removed from the medical staff. Due process gives you the right to a hearing, the right to present evidence, the right to a neutral arbiter, the right to face and cross examine witnesses, and the right to judicial review of any decisions – among other rights.
The procedure granting a physician due process before removal from a hospital medical staff is usually described in detail within the bylaws. Procedures may include requirements to list the reasons for discipline, descriptions of the various levels of discipline, timelines for responding to inquiries, how the outcome of cases are decided, and any rules for appeal. Due process makes it difficult to remove a physician from a hospital’s medical staff without sufficient cause. The drawback to due process proceedings is that if a physician loses the proceeding, then the physician is removed from the medical staff and must be reported to the National Practitioner Databank.
Why Some Physicians Receive Due Process And Others Don’t
The due process provided in hospital bylaws can be contractually waived. If they could, hospitals would probably require that all physicians waive due process before being removed from a medical staff. It would be much easier for hospitals to silence those deemed as “troublemakers” by simply terminating the privileges of those physicians. Such arbitrary terminations often occur with the “ERAP” hospital-based specialists (Emergency medicine, Radiology, Anesthesiology, Pathology) who generally MUST agree to due process waivers before they will be considered for admission to a hospital staff. Hospitals almost never require general staff members to waive due process protections. It may seem illogical for hospitals to provide protections to some medical staff and not to others, but consider why the system is set up this way. Hospitals depend upon patients for their revenue. Patients often choose hospitals based upon where their primary care provider is on staff or where a physician refers a patient for a procedure or an operation. Patients seeking surgery often look at the reputation of a surgeon. If primary care providers and surgeons were unwilling to join a hospital staff because there are no due process protections available, then the hospital would lose a significant portion of revenue from those referral sources.
On the other hand, patients seldom go to a specific hospital because they will see a certain emergency physician or because a certain radiologist will read their studies. ERAP specialties are often viewed as expendable widgets in the health care process. Even now, during the COVID pandemic, physicians are being terminated and silenced quickly if their public pleas for help are viewed as being detrimental to the image of their hospital or contract management group.
Physician Contract Terms That Negate Due Process
There are several ways in which hospitals or contract management groups can force a physician to waive due process. When a group signs a contract to manage the emergency department services at a hospital (called a “Hospital Service Agreement,” an “Emergency Services Agreement,” or something similar), such an Agreement almost universally requires that the hospital have the right to remove a physician from the schedule without cause. Below are a couple of examples I have pulled from many of the Hospital Service Agreements I have reviewed.
HOSPITAL may request that GROUP replace a physician within thirty (30) days, without cause, and GROUP shall give prior, written notice to the physician of HOSPITAL’S ability to replace him/her, and thereafter shall arrange for a replacement physician within this period. HOSPITAL reserves the right to require GROUP to replace a physician immediately if HOSPITAL determines that the physician’s continued provision of services may jeopardize patient safety or care.
Removal of Physician. Upon receipt of notice from Hospital … Corporation immediately shall remove such Physician from the Schedule until such time that Hospital provides its written approval for such Physician to resume performing Emergency Services. … If Hospital deems, after discussion with the Corporation, the Physician Breach [of Hospital’s expectations] to be of such a nature that it is not curable, Corporation shall permanently remove such Physician from the Schedule and replace said Physician with a Physician who satisfies [Hospital’s expectations]. … The clinical privileges and medical staff membership any Physician removed pursuant to this section shall automatically expire, without any procedural rights under Hospital’s medical staff bylaws.
Such Hospital Service Agreement terms then trickle down into contracts that physicians must sign with contract management groups. Because the groups have contractually agreed to require their physicians to agree to waive due process, for physicians, a due process waiver becomes a “take it or leave it” part of the contract. However, in many cases, the contract management groups add additional requirements to those imposed by the Hospital Service Agreements. I don’t have a copy of the Hospital Service Agreement for PeaceHealth St. Joseph Medical Center, but I have reviewed many versions of Team Health physician contracts. With respect to physician termination, Section 11.1 of Team Health’s standard employment contract contains the following language:
This Agreement may be immediately terminated by Company for cause upon the occurrence of any of the following events:
(vi) if Facilities request reductions in coverage or that Professional be removed or no longer scheduled for any reason;
(vii) acts of Professional which involve professional misconduct, dishonesty, moral turpitude, criminal acts, or any act which in the good faith judgment of Company impairs or adversely affects the relationship between Company and Facilities …
Section 11.2 of Team Health’s standard employment contract adds to the due process waiver by permitting Team Health to sue the physician if the physician fails to provide services for 90 days after giving notice of intent to terminate the agreement, but this Section also allows Team Health to terminate a physician immediately once the physician does give 90 days’ notice – called an accelerated termination clause. Therefore, not only is the physician subject to termination at the whim of the hospital, but the physician also has no way of knowing when to begin scheduling shifts at a new position because the physician has no way of telling when the contract with Team Health will officially end.
Hospital Risk in Terminating Physicians
There is significant risk to hospitals and contract management groups that terminate physicians who advocate for their patients. First is the Streisand Effect. Rather than working with Dr. Lin to improve patient safety, which would have gained TeamHealth and PeaceHealth positive news coverage, once news of Dr. Lin’s abrupt termination was reported, it became a national story causing significant criticism to both TeamHealth and PeaceHealth.
OSHA whistleblower laws forbid any type of retaliation against employees who report safety issues at work. Click here to see my other post explaining how OSHA protects the rights of workers. Note that OSHA protections do not apply to independent contractors. Companies that terminate physicians for raising public awareness about safety issues are also subject to significant civil judgments. Juries – who are comprised of patients – are unlikely to forgive hospitals or contract management groups that are accused of trying to hide issues involving safety for … patients. For example, in one recent case, an emergency physician was terminated from Overland Park Regional Medical Center in Kansas for reporting understaffing in the emergency department, alleging that keeping only one physician on an overnight shift in a busy emergency department was putting patients at risk. When he complained to his superiors at EmCare (now Envision Physician Services), instead of addressing the issue, EmCare allegedly told him to “resign or be fired.” When he refused to resign, EmCare terminated him without cause. The physician sued EmCare but apparently did not name the hospital. After a trial on the merits, the physician was awarded $29 MILLION, including $9 million for compensatory damages and $20 million in punitive damages. While EmCare vowed to appeal the verdict back in 2018, no such appeal was found in state or federal legal databases.
Takeaway Points
- Contracts often require that physicians agree to waive due process before being removed from a hospital’s medical staff. Since such terms are often required by Hospital Service Agreements, it is unlikely that contract management groups will remove the terms from physician contracts. Physicians who sign such agreements have NO job security.
- In all likelihood, Dr. Ming Lin was able to be immediately terminated from his position with TeamHealth at PeaceHealth St. Joseph Medical Center because he signed a contract agreeing to that stipulation. If that is the only hospital at which Dr. Lin worked, his sudden termination may cause him financial hardship if he needs to spend several months obtaining staff privileges at another facility. This is a perfect example of why every emergency physician should have staff privileges at more than one hospital or have a backup plan to maintain an income stream.
- OSHA provides some legal protections for employed physicians who are the subject of adverse actions by an employer when complaining about workplace safety issues. Those protections are not generally available for independent contractors.
- Lawsuits for retaliatory termination can generate large judgments against hospitals or contract management groups as jurors generally have ill will toward corporations that thwart patient safety – especially when those corporations attempt to hide such actions.
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