Abstract
Throughout the medical education continuum, some students encounter difficulty in meeting academic or professional standards that leads to remediation or dismissal. Termination of a student without due process may lead to litigation by deprivation of a student’s property or liberty interest. This article outlines the concept of procedural and substantive due process as applied to litigated student dismissal cases in undergraduate and graduate medical education. Determination of the amount of due process owed is based on whether the dismissal is academic or nonacademic. The decision to dismiss a student where the entire student record has been reviewed, due process provided, and the institution complied with its own policies is usually upheld by the courts in litigation.
“University faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation.” This excerpt from the US Supreme Court’s decisions in
Due Process Issues in Medical Student/Resident Dismissal Cases.
Common Scenarios in Student Due Process Dismissal Cases.
Due Process Defined
Section 1 of the 14th amendment to the US Constitution states in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
Due process of law refers to safeguards and procedures that are in place to protect a person’s rights from state government (14th amendment) 3 or federal government (5th amendment) 4 action. 5 Due process has 2 components, procedural due process and substantive due process. Procedural due process implies that an individual being deprived of a liberty or property interest will receive notice and is presented with the opportunity to be heard. Substantive due process implies that the state’s (institution’s) decision is not arbitrary or capricious.
In the academic setting, students dismissed from their respective UME or GME programs have argued deprivation of liberty and property interests due to lack of due process. In
Whereas property interests are a creation of state law, some jurisdictions hold that admission to medical school is a property interest requiring due process. 1,2 This view is not universal. 6, 7
Accreditation Standard
Due process is a UME and GME accreditation standard (Table 3). 8,9 Students dismissed from their respective programs for not meeting academic and professional requirements have raised accreditation standards in litigation.
Liaison Committee on Medical Education (LCME)* and ACGME† Due Process Accreditation Standards.
Legal Precedent Used by the Courts
Medical education is divided into UME and GME. Failure to provide due process is raised in many cases of medical student and resident dismissal. The critical question is how much due process is required. This question was addressed in the following 2 Supreme Court cases. The Court’s findings are summarized in Table 4.
Case 1
Charlotte Horowitz was a medical student admitted to the University of Missouri with advanced standing in 1971. Her preclerkship grades and National Board of Medical Examiners (NBME) examination scores were passing. During her clerkship in pediatrics, the faculty expressed dissatisfaction with her clinical performance (including her personal hygiene, peer and patient relationships, and timeliness) concluding it was below the standards of her peers. As part of the institutional policy, student performance was reviewed by a committee composed of faculty and students (Council of Evaluation) who made a recommendation on student disposition including probation and dismissal. Their findings were subsequently reviewed by a faculty committee and then by the Dean. The Council of Evaluation recommended probation for Horowitz. Further faculty dissatisfaction was encountered as the year progressed and the Council recommended absent “radical improvement” dismissal. On all occasions, Horowitz was notified of the committee’s findings and dissatisfaction with her performance. As part of an appeal process, the school allowed her to be examined by 7 practicing physicians. Two of the 7 recommended she continue as a student. The other 5 recommended continuation on probation or dismissal. Subsequently, the student received poor evaluations in 2 more clinical rotations and the Council recommended dismissal. The Coordinating Committee and Dean upheld the recommendation. Upon appeal by Horowitz to the Provost, the Provost upheld the Dean’s recommendation. Based on the school’s action, Horowitz filed a lawsuit stating she had not received due process. The district court found due process was adequate. On appeal, the Court of Appeals reversed the lower court’s findings stating there was failure of procedural due process, since Horowitz was not allowed a formal hearing before the Council of Evaluation. The Supreme Court reviewed the case and concluded there was adequate procedural and substantive due process and upheld the student’s dismissal.
1
Case 2
Scott Ewing was a student enrolled in a 6-year program of study at the University of Michigan in 1975 where an undergraduate degree and MD degree were awarded upon successful completion of the program. In 1981, he completed the requirements of the first 4 years of the program. The program had a requirement that students pass Part 1 of the NBME exam (predecessor to United States Medical Licensing Examination (USMLE) Step 1). Ewing failed Part 1 with a score of 235 (345 was passing, 380 was required for state licensure, and the national mean was 500). The 235 score was the lowest score ever recorded in that program. The performance of several students was subsequently reviewed by a 9-member Promotions and Review Board. The Board reviewed Ewing’s entire academic record that included marginally passing grades, a number of incompletes and makeup examinations while on a reduced course load, and recommended dismissal. Ewing subsequently appeared before the Board offering reasons for his substandard performance to include his mother’s heart attack 18 months prior to the exam, breaking up with his girlfriend 6 months prior to the exam, and being distracted with an essay contest. The Board affirmed their original recommendation. Ewing subsequently appeared in front of the Executive Committee on several occasions who upheld the decision and denied readmission. In 1982, Ewing commenced litigation in District Court arguing that his “dismissal was arbitrary and capricious, violating his ‘substantive due process rights’ guaranteed by the 14th amendment.” Testimony documented that Ewing had academic difficulties throughout his tenure even with a reduced course workload and had appeared on several occasions before the Board. Evidence was introduced that other students who had failed Part 1 were given subsequent opportunities to pass the exam. The school admitted that should a student fail either part of the NBME exam, an opportunity is given to the student to retake the exam. The District Court found Ewing had a property right in his education, but there was no violation of his due process rights. The court stated the “decision to dismiss the student was reached in a fair and impartial manner, and only after careful and deliberate consideration.” It was “not arbitrary or capricious.” Upon appeal, the Court of Appeals reversed the decision stating the failure for Ewing not to be allowed to retake the NBME exam violated its practice of allowing students a second retake opportunity. Evidence indicated Ewing was the only student who initially failed between 1975 and 1982 who was not allowed to retake the exam. The Court directed the University to allow him to retake the exam and if he passed the exam to reinstate him. The University of Michigan appealed the decision to the Supreme Court. The Supreme Court reversed the Court of Appeals’ decision and agreed with the District Court. They commented that there was no established rule that students had a right to retake the exam. It was just a customary practice. Evidence indicated other students with academic deficiencies were not allowed to take Part 1 at all. Their conclusion was that the Board’s decision was “made conscientiously and with careful deliberation, based on an evaluation of the entirety of Ewing’s academic career.” The decision to dismiss him “rested on an academic judgment that is not beyond the pale of reasoned academic decision-making when viewed against the background of his entire career at the University of Michigan, including his singularly low score on the NBME Part 1 examination.”
2
In
In both
Due Process in Undergraduate Medical Education
Common issues in UME resulting in student dismissal are classified into failure of basic science course work, failure of USMLE Step examinations, failure of clerkships, and professionalism. Table 5 outlines several cases where the preceding issues and lack of due process arose in addition to other causes of action. 1,2,5 –7,10 –30
Medical Student Dismissal Cases That Raised Lack of Due Process in Addition to Other Causes of Action.
Abbreviation: LCME, The Liaison Committee on Medical Education.
Failure of Courses/Modules in the Preclerkship Curriculum
Case 3
Jacqueline Leacock was a student at Temple University School of Medicine. During her first year of medical school, she received nonpassing grades in 7 courses obtaining 21 of 30 points in their grading scheme. Based on their written policy available to students, the student had not achieved the required 30 points to be promoted to the next academic year. The student was notified she would be dismissed by the Associate Dean for Curriculum consistent with the student handbook. The student appealed the decision to the Student Promotions Committee citing learning difficulties that became apparent during the first year. The record indicated she asked for a leave of absence and that she had never notified the school of the issue (learning difficulties) prior to her appeal letter. The Committee deferred on her request requiring more documentation on the learning deficit. The student was evaluated and found to have attention deficit disorder and mixed receptive expressive language disorder by an expert. Expert opinion from 2 other individuals in testing and education was not conclusive of the disorder. Based on the documentation received, the Promotions Committee upheld its decision for dismissal. Consistent with the student handbook, Leacock appealed the decision to the Dean. Stating no procedural irregularities, the Dean upheld the Promotions Committee's recommendation.
10
Addressing potential substantive due process rights and relying on
Failure of USMLE Step Exams
As previously discussed in
In a related case,
The student handbook issue has been raised in many cases. Many courts uphold the creation of a contractual relationship between the school and student.
12,15,22
,25
In
Failure of Clerkships
Failure of clerkships, where student knowledge, clinical skills, and professionalism are assessed, is also addressed in
Case 4
Philip Hill, a medical student at the University of Kentucky, had a poor academic record failing several courses that he remediated as well as failing USMLE Step 1 twice before passing it on the third attempt after a prolonged leave of absence to prepare for it. During this time, the student had received notice and had his academic record reviewed by a Promotions Committee as well as appeals to the Dean. During his third-year surgery clerkship, the student did not meet the grading requirements specified in the syllabus. The syllabus also included the phrase “The Department of Surgery reserves the right to assign an unsatisfactory grade for the entire clerkship if the student performs in an unsatisfactory manner in terms of professional behavior, interactions with patients, or on examinations.” Based on a number of incidents, including 6 absences of which 2 were excused, choosing patients with the same disease for examination in conflict with the syllabus and changing his on-call night schedule without notifying other students, the student received a failing grade. Specifically, the clerkship director stated that the failing grade was based on “several episodes of intellectual dishonesty, unsatisfactory ratings from both the students and myself, and a deficit in performance in areas such as self-responsibility for learning, relationships with peers and faculty, and attendance.” The student appealed the grade to the clerkship director and then to the Dean. The failing grade was upheld. The school’s Promotions Committee reviewed the clerkship performance and the student’s entire academic record and recommended dismissal. Subsequent appeals upheld the Committee’s decision with the Dean affirming the decision after reviewing the student’s seven-and-a-half-year association with the school. The student filed a lawsuit for being dismissed arguing violation of his “substantive and procedural due process rights.”
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The Court relied on the factors cited by Dr Schwartz, the “six absences with only 2 being excused; 18 unsatisfactory peer evaluations; “virtual absence” in attending operating room procedures during the first 10 weeks of the class; switching the on-call night without informing the other members of his rotation group; and the repeated use of identical material in patient writeups” in upholding the dismissal. The documented findings that were part of the legal transcript were found persuasive. Given that the student had notice, the opportunity to appeal, and have legal representation, the student was provided adequate due process. The school’s decision was careful and deliberate. 19
Lack of Professionalism
Professionalism is a competency demanded by one’s profession and the public. Specifically, “professional competence is the habitual and judicious use of communication, knowledge, technical skills, clinical reasoning, emotions, values, and reflection in daily practice for the benefit of the individual and community being served.” 32 Each institution has its own guidelines on what constitutes unprofessional behavior. In student dismissal cases for unprofessional behavior, due process arguments are held to a higher standard.
In
Upon reviewing the case, the District Court held the incident was nonacademic given the student lied about his cheating, and the university did not follow its procedures for nonacademic offenses. Following the decision, the Court of Appeals held it was an academic issue, but agreed that there was a contractual obligation between the school and the student. The student handbook stated “that a University Committee hearing may be requested in
In
Case 5
Michael Stathis was a student at the University of Kentucky. He completed his first 2 years of medical school with distinction. During his clinical OB/GYN rotation, he was found to have made hostile threats against a fellow student. An investigation was performed that documented violations of the school’s Health Sciences Student Professions Professional Behavior Code. A hearing, that Stathis elected, determined that Stathis physically threatened a fellow student while engaged in clinical activities. Similar incidents of hostile behavior directed toward others were also documented. A psychiatric report documented the type of behavior Stathis had was difficult to treat. Based on the totality of the evidence and the school’s responsibility to maintain a “safe and nonthreating clinical environment,” he was recommended for dismissal without the possibility of readmission. The Dean in writing upheld the Hearing Committee’s decision. An appeal to the university Chancellor upheld the Dean’s decision. Litigation was subsequently instituted claiming gender, racial discrimination, breach of contract, and lack of due process. Regarding the due process claim, the court stated, relying on
Amount of Due Process for Academic Dismissals Is Notice and Opportunity to Be Heard
In
In
However, the Supreme Court argues in nonacademic cases that procedural due process requires that a “student be given oral or written notice of the charges against him, and if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” 33
Due Process in Graduate Medical Education
Failure to provide due process is also considered in cases of residents being dismissed from training programs or not having their contract renewed (Table 6). 34 -43 Inadequate knowledge of basic concepts, lack of clinical skills, failure of in-service exams, and professionalism apply to GME in a similar fashion to UME.
Graduate Medical Education Dismissal Cases That Raised Lack of Due Process.
Abbreviation: ACGME, Accreditation Council for Graduate Medical Education.
Graduate medical education differs from UME based on residents being students as well as hospital employees. Residents have renewable 1-year contracts based on performance. Where residents are dismissed or do not receive a renewed contract, questions about what level of due process is owed to them, given their simultaneous student and employee status, are raised.
Case 6
Dr Hernandez was an internal medicine resident. During her second year of residency, her contract was terminated based on observations from the Chief Resident and Program Director that she lacked the clinical judgment required of a second-year resident, failing to offer leadership and guidance to interns, lack of professionalism when dealing with staff, and weakness in clinical decision-making, assessment, and patient follow-up. Following her termination, Dr Hernandez filed an appeal in accordance with the House Officer’s manual for judgment that her dismissal was arbitrary or capricious and not based on documented evaluations. An Appeal Board meeting was scheduled. Dr Hernandez demanded her attorney be allowed to appear and participate in the process and various documents including patient records be provided to her. Initially, Overlook Hospital denied the requests. In order to avoid litigation, Overlook agreed to allow Dr Hernandez’s attorney to attend and provide advice to Dr Hernandez and review relevant documents except for patient records. Overlook refused the attorney from presenting evidence and having a shorthand reporter transcribe the meeting. Dr Hernandez rejected the offer stating that her attorney should be allowed to attend and present evidence, the incident should be transcribed, and she needed to review patient records which served as the basis for the termination. Dr Hernandez brought legal action, the trial court agreed with Dr Hernandez that she be allowed to have her attorney present and participate in the proceedings offering evidence and presenting arguments on her behalf as well as allowing the proceedings to be transcribed. Based on their ruling, an Appeal Board hearing was held pursuant to the trial court order where Dr Hernandez’s attorney was present and the session transcribed. The Appeal Board upheld its decision to terminate Dr Hernandez. Subsequently, the Supreme Court of New Jersey reviewed the case and held that a resident does not have the right to counsel at a private academic hearing and there is no requirement that it be transcribed.
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Case 7
Dr Allahverdi entered a Family Practice residency at the University of New Mexico. Four months after the start of his residency, the Program Director sent him a letter placing him on administrative leave for inappropriate and threatening comments while on duty and for inappropriate communications with coworkers. A psychiatric evaluation was also requested. During the examination, Dr Allahverdi admitted a problem using foul language. The psychiatric evaluation also commented that Dr Allahverdi’s “personality defenses rationalized his behavior and minimize his own blame.” Five months into the residency, the Family Practice Residency Competence Committee notified him in writing, which he acknowledged receipt, that he was being fired for the following conduct: repeatedly calling women derogatory terms in violation of the University’s sexual harassment policy, and Code of Professional Conduct, threatening those individuals who complained about his inappropriate language in violation of University policy against campus violence and falsification of his residency application for failing to disclose a prior residency program he had been enrolled in. Their decision was based on University staff, rotation evaluations, faculty supervisors, his prior undisclosed residency program, and the psychiatrist’s evaluation. Dr Allahverdi appealed the decision by filing a grievance. A university GME committee reviewed the record and found “just cause” to support the dismissal but that he should be reinstated and placed on probation subject to several conditions to include zero tolerance for any behavioral difficulties. Dr Allahverdi was notified in writing of the GME committee’s constraints which he acknowledged by signing it. A new residency agreement was instituted in early March. Later that month, he received a letter from the Program Director placing him on administrative leave for allegations of misconduct. The Family Practice Committee met and recommended dismissal for violation of his probation based on derogatory language to a hospital employee, failure to complete accurate and timely checkouts, making misrepresentations, and inability to perform all duties of first-year house officers in a satisfactory manner due to inadequate medical knowledge and clinical skills. Dr Allahverdi was notified in writing that he could appeal the decision. Subsequently, Dr Allahverdi challenged the dismissal and raised numerous procedural issues. He subsequently filed a grievance with the University’s GME committee. He explained the allegations were unwarranted and requested all documentation made against him. The GME committee met. Dr Allahverdi and his attorney were present. He was allowed to make a statement, answer, and ask questions. The GME committee subsequently interviewed witnesses and ultimately upheld the dismissal. After several procedural challenges, the Dean of the School of Medicine upheld the termination leading Dr Allahverdi to pursue litigation alleging his due process rights were violated.
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Further, “If academic termination hearings are transformed into proceedings that involve legal procedures, the academic hearing would become an adversarial and litigious contest. The panel of doctors would no longer be acting as academics reviewing medical decisions, but rather as judges, ruling on legal issues that they are not trained or qualified to evaluate. The procedure would become complicated, legalistic, and time-consuming and expeditious review of academic judgments would be severely hindered.” 36 Additionally, “candid input and evaluations from attending physicians and senior residents regarding the residents’ academic performance could be discouraged, raising a concern that residents may escape critical review of poor academic and practical performance. Those evaluations ensure that residents are performing at acceptable levels of competency and professionalism. Without such input, the integrity of the program and the public interest is at stake.” 36 Given Hernandez’s “unique status as a doctor-in-training and considering the strong public policy of ensuring that only qualified physicians serve the public, we find that Overlook is qualified, both substantively and procedurally, to pass judgment on whether plaintiff is fit to practice medicine in its programs. To hold otherwise and not afford great deference to a program’s expertise in this area would, in effect, threaten the autonomy of such a program to determine the academic standards by which residents are to be educated, trained, and judged.” 36
Regarding what is fair procedure, the Court held a fair procedure “includes the right to adequate notice of deficiencies, an opportunity to examine the evidence of those deficiencies used by the hospital to make its academic decision, and the right to present a case to the decision-making authority.” The Court continued “a resident also may bring a peer or other physician, including a professor to the hearing. Such a person could consult with the resident and provide a sympathetic ear during the hearings. However, such a person could not act as an adversarial advocate. Those mandates not only accord great weight to the institution’s judgment as to a resident’s competence but also ensure that all of the relevant evidence is considered and protect against the risk of arbitrary or capricious decisionmaking.” 36
In
The initial question the courts address, as outlined above in
In dismissal of an anesthesiology resident for not disclosing information on a residency application that he had been terminated from a previous residency for competency-related issues, the court considered it an academic dismissal based on the nexus between “dishonesty in the application process as undermining his future credibility as a source of information concerning the care of seriously ill patients.” The Program Director’s “professional judgment that a doctor-in-training who has demonstrated a willingness to withhold damaging information when it serves his purposes cannot be fully trusted to convey all information crucial to the health of the patients committed to his care.” This is clearly an academic decision by school officials who possess expertise on the subjective evaluation of medical doctors.
42
Failure to perform adequately on in-service exams,
34,35
lack of clinical judgment and skills,
34
–39
pass USMLE Step 3
44
were also considered academic dismissals. Therefore, the due process afforded academic dismissals was the guiding principle. In contrast, disruptive behavior and absenteeism in
Academic Versus Nonacademic Dismissal
The distinction between an academic and nonacademic case is important in determining the due process owed. Tables 5 and 6 outline numerous cases that were treated as academic dismissals and several that were treated as nonacademic (disciplinary) in nature. In the disciplinary cases, students were suspended or terminated for breaking specific “rules of conduct” and insubordinate behavior versus academic dismissals where students lacked the professional qualities required by a profession based on faculty judgment that is subjective in nature. 40,42
Nondue Process Claims
Students dismissed for failure of basic science courses,
45
-47
clerkships,
45,48,49
Step 3,
44
and lack of professionalism,
50
where due process was adequate, have raised equal protection, breach of contract, disability, and discrimination causes of action. Courts have deferred to the standards from
Professionalism
Professionalism is also an UME and GME accreditation standard. 51,52 Each institution sets its own standards consistent with its accrediting body. Failure to comply with institutional standards has led to student dismissal. Although academics are important, professional behavior toward patients, peers, and faculty is just as critical. 1 Failure to show up on time for clinical rotations, 1 not meeting clerkship objectives, 19 deceit in an application, 40,42 drug conviction, 28 or abusive behavior toward a peer 30, 40 are deemed unprofessional behavior. Tables 5 and 6 outline several cases where professionalism was an issue. In adjudicating student dismissal cases for unprofessionalism, the courts utilized the standards outlined above on whether the issue was academic or nonacademic in determining the amount of due process owed the student.
Lapses in professional judgment are sometimes difficult to “prosecute” as compared to purely academic issues. They are often difficult to address with students, residents, and even faculty. These lapses may eventually lead to disciplinary actions by state medical licensing boards. 53 These failures are at times ignored or passed up the chain of command when there were findings to terminate the student or resident earlier in the educational continuum. 54 The courts will look to the judgment of the faculty on whether the individual in question met the institution’s standards provided due process was adequate. 2 In dealing with these type of cases, documentation is critical. With adequate documentation, promotions committees and residency review committees have a record they can use in reviewing the totality of a student’s record to render a decision.
Conclusion
Inherent in any academic enterprise are students who lack the academic ability or have unprofessional attributes in their behavior. Academic institutions have a responsibility to protect the public and may need to remediate or dismiss students. Student dismissal has the potential to lead to litigation by deprivation of potential liberty or property interests without due process. Due process considerations in student remediation/dismissal are summarized in Table 7.
Due Process Considerations in Student Dismissal Cases.
Abbreviations: GME, graduate medical education; UME, undergraduate medical education.
Noteworthy is that in several UME and GME cases, committees that evaluated the entire student or resident’s record recommended dismissal. On appeal to a dean or other administrator, the committee’s decision was not upheld. As documented above, many of these cases continued on to litigation creating more work for faculty and potentially compromising patient care at the GME level.
As outlined in
Footnotes
Authors’ Note
The opinions expressed are those of the authors and do not reflect the official positions of the Uniformed Services University, the US Army, Navy, Air Force, or DoD.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.