Last Updated on February 6, 2024 by Laura Turner
Many residents and fellows in graduate medical education programs who reach out to me for help are already facing the most severe adverse actions possible: termination/dismissal, non-renewal, and non-promotion. (I’ve previously written about prudent steps to take in that event.) In most of those cases, a period of residency remediation or probation preceded the harsher sanctions. It may not surprise most readers that policies and best practices were not observed or that the items the program pledged to assist the trainee never materialized. These missteps can often be key factors in the more severe discipline now being imposed. There are some basic steps that residents placed in remediation, probation, or some type of warning or counseling status can think about and do to clarify the issues at hand and prevent problems down the road.
With the caveat that these guidelines are not legal advice and do not form a lawyer-client relationship between the reader and the author or his firm, here are my top five steps for dealing with residency remediation and probation:
1. Read and Understand the Applicable Policies
Universities and hospital systems that sponsor graduate medical education programs should have policies in place that address at least the rudimentary considerations and processes for placing a trainee on remediation or probation. If the ACGME accredits the institution, it is arguable that the ACGME’s Institutional Requirements mandate that those policies are contained in or incorporated into the training contract. These policies may have titles that contain words or phrases like the following: conditions for reappointment and/or promotion, probation, remediation, corrective action, or due process. Locate your orientation materials and check your institution’s webpage for graduate medical education to find the policy or policies that address your status. If you can’t find them, ask your GME office. Once you have them, read them closely and ensure the required steps are followed. Sometimes, individual programs also have their own policies, so be mindful of seeking them out, too.
2. Ask Questions
“Knowing is half the battle,” as they used to say on a favorite cartoon from my childhood. It is critical that any trainee being placed on remediation or probation have a firm understanding of the what, why, when, and how. That information can both help a resident gain insight on how to meet expectations and correct misperceptions that may be undergirding some or all of the proposed corrective action.
Often, residency remediation documents are prepared by a program director who may be relying heavily on feedback he or she is getting from other attendings or even nursing staff or patients. This can lead to problems one can try to nip in the bud. It may be that the program director does not have specifics and is relating the purported deficiencies second- or third-hand. It is crucial to clarify what particular case or conduct led to this action. Maybe important context was lost on the way to the program director. Maybe the facts are demonstrably different. Maybe there is a mistake of identity. All manner of miscues can occur that should be addressed sooner than later. It should go without saying that specifics are needed to truly make the events in question a teachable moment. It pays to inquire what the specific expectations are going forward.
What are other legal quagmires you could fall into as a resident? Check out some of other SDN articles on protecting yourself and your interests:
3. Politely Point Out Mistakes or Other Issues
It can be helpful to narrow the issues in dispute by addressing mistakes early on, which makes the task of remediating all easier and less stressful. Likewise, it can become important if more severe actions are taken later to have gone on the record with your perspectives lest you be deemed to have accepted all criticisms as valid because of your silence. When trainees do this, it is important to strike a respectful and professional tone or risk being labeled as unprofessional on top of anything else the program says. Also, be careful not to proclaim that your performance has been perfect, as that is likely to be perceived as being resistant to feedback and lacking insight.
4. Be Proactive
There is an instinct trainees often feel to just “put your head down and struggle through.” This passive approach can backfire and lead to problems. The ACGME’s Program Requirements mandate that programs include the resident or fellow in forming a remediation plan. Take full advantage of that. In addition to politely pushing back on mistakes, as noted above, give meaningful suggestions for resources and information the program can provide to help make the plan successful. Request specific, measurable, and objective goals to determine whether residency remediation has been completed satisfactorily. Seek feedback and make a contemporaneous record. Often, busy attendings don’t fill out written evaluations, and all you have to go by is verbal feedback that, if more severe action is taken later on, was given months prior and lost to time and memory. Sending a quick email to an attending to confirm verbal feedback is a simple but effective way to do this. Attend all meetings required by your plan and document when they are canceled on you.
5. Get Competent Legal Guidance
There are important considerations in each of the preceding four steps, as well as in the analysis of what arguments you may have in your favor, that should be assessed by an attorney who has experience in these matters. Every residency remediation situation is unique and should be assessed with an eye towards the details.
We have regularly represented residents and fellows for over a decade in large and small matters. We know which strategies can provide leverage and opportunities for success. Contact us to see how we can put that experience to work for you. I would urge all medical residents and fellows facing remediation, probation, warning, reprimand, or letters of concern or counseling to reach out to see how we can assist. A version of this article was previously published on the Brown, Goldstein & Levy webpage.
Greg Care is a lawyer who specializes in resident physician disciplinary Issues, employment, commercial litigation, appeals, civil rights, and disability rights. The protection of employees’ and students’ rights is a priority for Greg.