This concern led leaders in ACEP to introduce Resolution 31(21) at the 2021 Council Meeting. “The ACEP Council adopted the resolution to submit a resolution to the June 2022 American Medical Association (AMA) House of Delegates Annual Meeting, ‘promoting the concepts of the Arizona House Bill 2622 (2021).’ The resolution also states the College will develop model legislation fashioned after the Arizona bill, which it will share with all ACEP chapters.”⁶ The resolution addresses these issues about doctors losing their jobs when they speak out about real concerns around patient safety and quality of care. It goes on to say “[e]mergency physicians have been retaliated against numerous times for raising concerns regarding patient safety, harassment, and/or fraud and these physicians have been affected mentally and financially as results of such retaliation and job loss and many report worsening anxiety, depression, financial hardships, family trouble and need to relocate….”⁶ Clearly there is work to be done in this area to level the playing field for doctors working for private groups and private systems. The State of Arizona understood this and what happened to Dr. Cleavon Gilman and acted upon these issues.

Rebuttable Presumption

Rebuttal presumption is a brand new civil law which has not been tested in the courts. It is strongly worded in favor of physicians and puts third party contractors in Arizona on notice, that if they terminate a health care professional within six months of an action the contractor does not approve of, it will be considered retaliatory until proven otherwise in court. Because Arizona chose to call this retaliatory action a “rebuttable presumption,” the employer taking the retaliatory action against a health care provider would have to prove more likely than not they did not do it based on retaliation. This is similar to, but somewhat opposite of, the rebuttable presumption in criminal law of innocent until proven guilty. In the criminal world, the prosecuting attorney has to prove guilt beyond a reasonable doubt. For example, if this was law in Washington state, Dr. Ming Lin could use this law against his employer, Team-Health, as a presumptive retaliatory action for his letter to the CMO at PeaceHealth St. Joseph Medical Center that he posted on Facebook. He still may have violated a termination clause in his contract, and his employer could be found justified, but this would force his employer to prove Dr. Lin’s termination was not retaliatory. If this was law in the State of New York, then Dr. Kristin Carmody could also use it in her case against NYU Langone Hospitals.