There have been several headlines recently about emergency physicians being fired or suspended from their jobs after speaking out on social media about their concerns related to how their hospital systems were handling the COVID-19 pandemic. For example, Dr. Ming Lin was, “fired from his position as an emergency room physician at PeaceHealth St. Joseph Medical Center in Bellingham, Washington, after publicly complaining about the hospital’s infection control procedures.”¹ Dr. Cleavon Gilman was, “asked not to return to his work at Yuma Regional Medical Center for his social media posts about the severity of the COVID-19 pandemic in Arizona . . .”² Dr. Kristin Carmody, formerly of NYU Langone Hospitals, filed a lawsuit, “alleging that her December 2020 termination was an act of retaliation, and that she was defamed and discriminated against in the process of her ousting.”³

These highly publicized cases have led to significant discussion on social media, an approved resolution at the ACEP 2021 Council Meeting, and for one state, Arizona, passage of an anti-retaliation law. I want to discuss some history behind the current due process and anti-retaliation laws as well as current efforts to provide more protection for physicians in these challenging situations.

Due Process Rights

The United States concept of due process rights is firmly rooted in our Constitution’s 14th Amendment ratified on July 9, 1868. Section 1 states in part, “No State shall . . . deprive any person of life, liberty, or property, without the due process of law . …” “Property” is defined by the courts as, “tangible and intangible possessions . . . if they have real value.”⁴ This amendment’s protections, “in the medical setting . . . only protects individuals working in government hospitals, including federal, state, county, and municipal hospitals. Likewise, when a physician faces a suspension or loss of licensure from a state medical board, the physician has a right to a predeprivation hearing. Physicians working in private hospitals receive their due process rights from other sources.”⁵

Larry Weiss, MD, JD, FAAEM, wrote “Due Process White Paper” 15 years ago and it remains just as relevant today as it did then. He explains how due process rights were clarified by the Supreme Court in Matthews v. Eldridge, 424 U.S. 319 (1976). He explains the Matthews court held “the amount of procedural protection depends on a flexible balance between the interests of government and those of the individual.”⁵ In Darlak v. Bobear, 814 F.2d 1055 (5th Cir. 1987), the Darlak court used the “flexible balancing rule to conclude an informal hearing satisfied the due process rights of a temporarily suspended physician, and a formal hearing before the hospital credentials committee satisfied the physician’s hearing rights prior to a final suspension.”⁵ Keep in