The Non-negotiable Employment Contract-diagnosing the Employment Rights of Medical Residents

• Publication year: 2022

44 Creighton L. Rev. 705. THE NON-NEGOTIABLE EMPLOYMENT CONTRACT-DIAGNOSING THE EMPLOYMENT RIGHTS OF MEDICAL RESIDENTS

THE NON-NEGOTIABLE EMPLOYMENT CONTRACT-DIAGNOSING THE EMPLOYMENT RIGHTS OF MEDICAL RESIDENTS

Robert N. Wilkey(fn*)

"One goes through school, college, medical school and one's internship learning little or nothing about goodness but a good deal about success."(fn*)

INTRODUCTION

The recent debate concerning healthcare reform is wholly void concerning the ongoing employment plight of medical residents, who comprise a substantial percentage of the United States healthcare workforce. According to the National Resident Matching Program's ("NRMP") Results and Data Report, in 2009, there were approximately 25,185 medical residency positions for both first (PGY-1) and second (PGY-2) year medical residents within the United States.(fn1) Additionally, the Accreditation Council for Graduate Medical Education ("ACGME") reports that in 2009-2010, there were approximately 8,914 total United States medical residency programs and 111,386 total available United States medical resident positions.(fn2) Despite the significant number of medical residents enrolled in thousands of Graduate Medical Education ("GME") programs, medical residents continue to be at a severe disadvantage with respect to employment rights and other corollary issues involving negotiation, due process, sexual harassment, discrimination, unlawful termination, and wage and hour matters. As Stephen L. Cohen, a physician and journalist observed,

[medical] residents typically work longer hours than any other professionals on the planet. In seven days, they are expected to cram in as much as 100 hours of work, and a single shift can last as long as the average mortal's entire workweek... . Potentially abusive practices occur in other specialties too. The JAMA [Journal of the American Medical Association] survey indicated that 93% of doctors-in-training experienced at least one incident of harassment or verbal abuse and more than half reported episodes of being belittled or humiliated by more senior physicians. Perhaps even more important, 70% of the residents reported seeing colleagues working in an impaired condition, most often due to a lack of sleep. In addition, the survey documented a pattern of mistreatment that closely paralleled similar reports of abuse by American medical students.(fn3)

During the past decade, medical residents' working conditions have not dramatically improved.(fn4) A recent survey in 2009 by the Association of American Medical Colleges ("AAMC") highlighted the significant wage and economic inequities faced by medical residents. For example, since 1969-1970, the mean first-year resident stipend nationwide, after adjusting for inflation, has remained relatively unchanged (and arguably decreased).(fn5) Additionally, for advanced medical residents, salaries also remain stagnant, where in 2009 the weighted mean stipend for residents in seventh (PGY-7) and eighth (PGY-8) year post-MD programs was $60,166 and $61,776 a year respectfully.(fn6) This wage disparity for medical residents is significant given that tuition and fees for GME programs (typically four to six years depending on the type of program) is at an all time high, averaging annually $39,822 (non-resident) and $20,234 (resident) for public institutions and $39,755 (non-resident) and $39,233 (resident) for private institutions.(fn7) Additionally, the median amount of medical school student loan debt for graduates in 2009 was $150,000 for public medical schools and $177,500 for private medical schools.(fn8)

The results of a 2009 GQ Medical School Graduation Questionnaire, published by the AAMC, similarly identified ongoing quality-of-life issues among medical students.(fn9) For instance, in 2009, approximately 17% of all medical students surveyed reported that they had "personally been mistreated during medical school."(fn10) More specifically, approximately 48.9% of the medical students surveyed reported general mistreatment in the form of "occasionally" being "publicly belittled or humiliated."(fn11) Additionally, 8.2% experienced either being "threatened with physical harm or been physically punished (e.g. hit, slapped, kicked)" either "once" or "occasionally."(fn12) Furthermore, 9.5% reported being "subjected to unwanted sexual advances by school personnel" either "once" or "occasionally."(fn13) When asked whether a medical student had ever been "subjected to offensive sexist remarks/ names directed at you personally," approximately 12% of medical students surveyed indicated they had "occasionally" experienced such mistreatment. other issues such as gender mistreatment,(fn14) racial and ethnic mistreatment,(fn15) and sexual orientation mistreatment,(fn16) were also identified as areas of concern. Concerning the sources of such mistreatment, medical students overwhelmingly reported that such mistreatment was derived from clinical faculty (in hospital), residents/interns, and nurses.(fn17)

There is strong evidence that such quality of life issues carry over into the medical residency. For instance, in a survey measuring the degree of stress among medical residents, approximately 23% of all medical residents surveyed expressed that "they had become less humanistic over the course of their residency training."(fn18) The same study also discussed that approximately 61% additionally reported "becoming more cynical."(fn19) Another study of internal and surgical medical residents revealed that increased levels of "stress were associated with increased levels of both job and patient-related burnout later in the residency year" and accordingly suggested that programs "designed to assess and address perceived stress, health, mood and level of burnout may be most effective in alleviating the professional and personal difficulties often associated with medical residency."(fn20) There are similar reports of abuse that continue into the medical resi-dency.(fn21) For instance, in 2006, it was reported that a group of medical residents in an anesthesiology GME program "felt intimidated and scared to complain" about non-compliance issues occurring in the program.(fn22)

Although there is significant literature concerning excessive medical resident work hours,(fn23) collective bargaining or unionization,(fn24) taxliability,(fn25) and medical malpractice-liability issues among medical re-sidents,(fn26) no comprehensive legal literature discusses, assesses, or evaluates the employment rights of medical residents.(fn27)

The purpose of this Article is to: 1) provide a brief historical overview of medical residents within the employment setting; 2) discuss the various employment issues faced by medical residents; 3) summarize the relevant legal case law governing medical resident employment related issues; and 4) present various legislative and policy reform proposals with respect to medical resident employment and the workplace. The goal of this Article is to provide medical residents, fellows, and medical students enrolled in GME programs, as well as legal practitioners representing the employment interests of medical residents, a comprehensive guide to legal issues arising in the context of the medical residency and hospital workplace.(fn28)

I. HISTORICAL OVERVIEW OF MEDICAL RESIDENTSWITHIN THE EMPLOYMENT WORKPLACE

To fully understand the prevailing employment issues faced by medical residents within the workplace, it is important to understand the historical development of medical residents within the healthcare system.(fn29) A resident physician, often referred to as a medical resident or in the United Kingdom as a "registrar" or "house-officer," is a "person who has received a medical degree (MD, DC, MBBS, MBchB)" and practices medicine under the supervision of fully licensed physicians, usually in a hospital or clinic setting.(fn30) More precisely, a medical resident refers to:

any physician who has graduated from medical school, and is participating in a post-graduate, hospital-based training and education program ... [including] both not-yet-licensed physicians (formerly referred to as 'interns') who are completing a shorter period of post-graduate training and licensed physicians who are continuing on in their graduate medical education ... and training in order to become qualified (board certified) in their chosen medical specialty (and sometimes in a further subspecialty).(fn31)

Historically, medical residency or accredited Graduate Medical Education ("GME") programs have been viewed "as an opportunity for advanced training in a medical or surgical specialty."(fn32) By the end of the twentieth century in North America, "very few new doctors went directly from medical school into independent, unsupervised medical practice, and more state and provincial governments began requiring one or more years of postgraduate training for medical licensure."(fn33) In fact, the medical internship was eventually introduced as an "optimal form of postgraduate medical education," offering students "a concentrated exposure to clinical medicine and [] hospitals [a] supply of relatively cheap labor."(fn34)

Over time, given the increased demand and competition among hospitals for qualified medical interns and residents, labor unrest arose in the selection process as "hospitals began to try to hire interns earlier than their competitors, so medical students could...