mind, this is referring to credentials and privileges and not employment.

The Health Care Quality Improvement Act of 1986 (HCQIA), which applies to all hospitals receiving federal dollars, further clarified physicians’ rights around due process, requiring, in part, a reasonable 30 day notice, right to legal representation at the hearing, right to call and question witnesses, opportunity to present evidence, a mutually agreed upon hearing officer, and receiving a written response as to the result of the hearing with a final right to appeal the decision (42 U.S.C. Sections 11101-11152). The Joint Commission also requires hospital medical staff to have due process rights and fair hearing procedures for physicians. It is the role of the hospital medical executive committee (MEC) to initiate these fair hearing processes as required, and any decision by the MEC regarding suspension of privileges must be approved by the hospital’s board of directors as a final check and balance. Some reasons for these type of actions against physicians include significant patient safety or quality events, disruptive behavior, or incompetent physicians.

This long but important legal background of due process and anti-retaliation protections for physicians is important to better understand the current real-world situation we practice in. The 14th amendment applies to the government, and what is required if the government tries to take away real or tangible property from an individual. The subsequent court cases from the Supreme Court and the 5th Circuit Court of Appeals apply the concepts in the 14th Amendment to hospital MECs. The MEC controls credentialing and privileging, and the denial or suspension of these property rights. The HCQIA of 1986 and the Joint Commission add specific requirements to what due process means in the hospital setting and with the MEC.

What Does Your State Say?

Where emergency physicians may get confused is that these protections do not currently apply to private employers in all states, except potentially Arizona. If a private employer wishes to terminate a physician, the employer and physician are both bound to the terms of the contract between the parties, which may or may not include any of the above due process rights. Assuming no duress in the process, these contracts are negotiated and agreed upon by both parties. It is easy to argue that these contracts are written by employer’s attorneys, and therefore are slanted in favor of the employer. However, the physician is ultimately responsible for understanding all the terms of the contract signed. Looking closely at reasons for, and the process of, termination is something many young physicians do not think about when they get their first employment contract out of residency. Also, with the current tight market for new graduates, I am concerned there will be fear from new graduates, or anyone looking for a new job, of asking too many questions or sharing too many concerns around termination conditions. The pressure to get a job could push someone to accept unfavorable contract conditions out of concern for unemployment. Clearly this creates a potentially unbalanced negotiation process.