Health Law Pointers - Volume XVIII, No. 2

Health Law Pointers


Volume XVIII, No. 2

August 10, 2016


Brought to you by Hurwitz & Fine, P.C.
Editor: Lawrence M. Ross
[email protected]


As a public service, we are pleased to present this issue of our health law newsletter addressing the legal concerns of health practitioners. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.


If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail or call the Editor, Lawrence M. Ross, at (716) 849-8900.


What Not To Do When Terminating an Employee

By: Kinsey A. O’Brien, Associate Attorney


Subscribers, I write today with a cautionary tale: how an employer can make an appropriate, justified termination look suspicious and possibly discriminatory. Specifically, this article covers a recent medical facility case out of Massachusetts, Bulwer v. Mount Auburn Hospital, which should be of interest to all employers, including those in New York State.


The Facts: The plaintiff, Dr. Bulwer, was a black physician who hailed from Belize. After receiving his medical degree and practicing medicine abroad, he came to the United States and was admitted to the residency program at Mount Auburn Hospital.


At the outset of his residency, Dr. Bulwer and the residency program entered into an Employment Agreement. The Agreement stated that the program would comply with the requirements of the Accreditation Council for Graduate Medical Education (ACGME). Among other things, ACGME requires that residency programs provide residents with a set of written procedures to be followed in cases of academic or other disciplinary action.


The program did maintain such written procedures, which gave residents facing discipline or other action the right to convene and sit on a due process committee. The committee was to consist of the resident, department heads, and another resident selected jointly by the program. The committee would conduct a review of the employment decision and the resident would be “assured of the fundamental aspects of a fair hearing,” including the rights to receive a written statement of the specific issues to be addressed and advanced notice of all committee meetings, to be present at all such meetings and be given an opportunity to rebut the evidence, and to present “any other information.”


Throughout his various rotations, Dr. Bulwer “received diametrically opposing reviews from supervising physicians.” Some reviewers were very impressed with Dr. Bulwer’s knowledge, skills, and attitude. Others, however, were deeply critical. One evaluator noted that Dr. Bulwer was “too confident for his own good.” Another said that Dr. Bulwer was “the least respectful person with whom [she had] ever worked,” and a third opined that Dr. Bulwer “is not well suited for a career in internal medicine in this country.”


Before Dr. Bulwer’s first year of residency was over, the program informed him that it would not renew his employment agreement beyond the current year. The letter cited “concerns about his ability to analyze information and ‘build effective therapeutic relationships’ and his difficulty presenting information to other members of his teams” as the reasons for the decision. It also indicated that Dr. Bulwer would be permitted to finish his first year of residency.


Dr. Bulwer exercised his right under the written procedures to convene a due process committee. Contrary to the written procedures, no other resident was seated on the committee and Dr. Bulwer was only permitted to attend one of three committee meetings. When Dr. Bulwer sought copies of materials considered at the meetings he did not attend, his request was ignored.


After the final committee meeting, the committee sent a letter to the Chair of the Department of Medicine stating that it would affirm the non-renewal decision. Nearly two weeks later, the Chair informed Dr. Bulwer verbally that because of “serious additional concerns” that had recently arisen, he would be terminated immediately and not allowed to complete his first year of residency. The due process committee never considered immediate termination, and Dr. Bulwer was never notified that immediate termination was an issue to be considered.


The Discrimination Claim: Dr. Bulwer filed a discrimination claim alleging that the program and several of its staff members had discriminated against him based on race and national origin in violation of the Massachusetts anti-discrimination law. The Massachusetts law is very similar to the New York State Executive (Human Rights) Law as well as Title VII of the federal Civil Rights Act.


In this type of claim, an employer can defend allegations of discrimination by showing that there were legitimate, non-discriminatory business reasons for the employment decision at issue. The employee, however, can overcome this defense if he or she can show “pretext,” meaning that the reason given by the employer is not the true reason for the employment action. If an employee offers enough evidence from which a jury could find pretext, the court will allow him or her to proceed to a jury trial on the discrimination claims.


The Ruling – Or, What Not to Do: The program defended against Dr. Bulwer’s claim by arguing that his poor reviews and patient safety issues were legitimate, non-discriminatory reasons for the program’s employment decisions.


The Court, however, found that Dr. Bulwer had presented sufficient evidence from which a jury could determine that these reasons were “mere pretext.” The Court laid out five pieces of evidence that, in its view, supported Dr. Bulwer’s pretext argument:


  1. The action was inconsistent with many of Dr. Bulwer’s evaluations. While some of Dr. Bulwer’s evaluations were negative, some were strikingly positive and ran directly contrary to the program’s claims. For instance, some reviews acknowledged Dr. Bulwer’s strong clinical skills, his ability to formulate a management plan for his patients, his thorough charting and presentations, and his ability to connect with patients’ family members. Thus, these reviews contradicted the reasons offered by the program for its actions.


  1. Dr. Bulwer was treated differently from similarly situated residents/interns who were not black. For example, other residents/interns who were not black and experienced similar issues “were given opportunities to remediate or repeat rotations.” Dr. Bulwer was not given such an opportunity.


  2. Other employees with deficient performance or who exhibited discriminatory behaviors were not subject to timely disciplinary action. The evidence showed that the hospital received numerous complaints from staff members regarding deficient performance of three white doctors. These doctors were not subject to disciplinary action “until months or years after the complaints were made – and then only because of pressure from patients and other hospitals.” In addition, a witness testified regarding an incident where “‘white supremacist’ literature” was found in the hospital’s break room. While the incident was reported to hospital administrators, the hospital declined to discipline the perpetrators.


  3. Several comments in Dr. Bulwer’s evaluations could reasonably be viewed as reflecting “stereotypical thinking.” The Court viewed the evaluator comments that Dr. Bulwer was “too confident for his own good,” “disrespectful,” and “not well suited for a career in internal medicine in this country” as potentially reflecting stereotypical thinking. Specifically, the Court stated that these comments “reflect a subconscious sense that the plaintiff, as a black man and a foreigner, did not ‘know his place.’”


  4. The program did not follow its written procedures. The evidence was clear that the program did not include a resident on the due process committee, did not allow Dr. Bulwer to attend all committee meetings, and did not give him notice of the specific issues to be considered. The Court found that the program’s failure to abide by its own written procedures for a termination suggested that the reasons offered by the program were not the real reason for Dr. Bulwer’s termination.


Based on this evidence, the Court found that there was enough evidence of pretext to allow Dr. Bulwer to reach a jury trial on his claims.


The Take-Aways: In light of Bulwer, what should an employer do to reduce the risk that an employee will successfully challenge his or her termination?


  • Before every termination, consider whether the termination is justified by and consistent with the personnel file, including past reviews and discipline.


  • Consistency is critical. Before terminating an employee, evaluate how similar situations have been handled in the past with other employees, both at and above the employee’s job level and inside and outside of any “protected characteristics” the employee may possess. If the current situation is being handled differently, there needs to be a legitimate reason for doing so.


  • If there are any applicable written procedures, follow them precisely.


  • Ensure that any discriminatory behaviors or “stereotypical thinking” is appropriately addressed whenever it occurs and be mindful of retaliation issues.


A failure to take these steps can undermine an otherwise justified termination and may give credence to a former employee’s discrimination claim.


If you are interested in reading the Bulwer decision, the citation is: Bulwer v. Mount Auburn Hospital, 473 Mass. 672 (Feb. 29, 2016). And, as always, please reach out to us with any questions. Our Employment Practices team would be happy to help you navigate discipline, terminations, or any other employment-related matter. I can be reached at (716) 849-8900 or [email protected].

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