Medical Residents: The Need to Address Regulatory Difficulties Early

It's critically important for medical residents who find themselves in academic or professional difficulty to address the problem early and head-on, says Lonny Rosen.

“It’s challenging to complete a medical residency program, but when residents encounter problems, it’s vital that they address the situation quickly in order to try to get back on track, otherwise, they may find themselves in a cycle of failure that could ultimately result in their dismissal from the residency program.”

The assistance of legal counsel, experienced in such matters, can be a significant factor in preventing or stopping this cycle before it is too late, he adds. Rosen, a partner with Rosen Sunshine LLP, says a recent case highlights the uphill battle medical residents can face after they are placed in the remediation process, which can lead to probation and, ultimately, dismissal from a faculty of medicine.

In this matter, a medical resident requested a judicial review of a decision by the Academic Appeals Committee of the Governing Counsel of the University of Toronto, after he had been dismissed from a residency program at the faculty of medicine, says the court ruling. The school held that the resident “failed to achieve the requirements of a remediation plan intended to rectify his deficient performance,” it says. The faculty had initially identified that the resident had “gaps in knowledge and decision-making skills” in October 2012 and placed him on the first of three remediation plans. The resident, who failed to meet the requirements of the final remediation/probation plan, argued that the appeals committee was “unreasonable in not recognizing that there were multiple deficiencies in the implementation of the remediation plan that made it manifestly unfair.” He asked the court to set aside the committee’s decision.

The court ruled that the committee’s findings were “entirely reasonable” and that there was no basis for it to interfere with the decision to dismiss the resident’s appeal.

Rosen, who often represents medical residents who are having these kinds of difficulties, says it’s important to note that medical residents are subject to regulatory requirements of the College of Physicians and Surgeons of Ontario, which issues them an educational licence.

“Therefore, they are required to meet the same obligations around professionalism that all physicians must meet, but additionally, they are being evaluated on all aspects of their professional conduct throughout the course of their residency program,” he says. Rosen, who comments generally and was not involved in the matter, says medical residents who find themselves in trouble academically, will often soon be in regulatory difficulty as well because they require a student licence to participate in the residency program. “When residents have serious academic or professional issues, the Registration Committee of the College of Physicians and Surgeons sometimes simply refuses to issue or renew an educational certificate,” he says. “As a result, without a hearing before the Discipline Committee of the College and without all of the procedural fairness to which a licensed physician would be entitled, residents can find themselves without a licence and then unable to return to the residency program — even when the residency program will accept them.”

Rosen explains that poor performance in academics or breaches of professionalism can result in a resident’s failure to pass a block of training, which can lead to them being required to complete a remediation program.

“Residents in a remediation program would hopefully get more support, but they are also under more scrutiny,” he says. “Therefore, the failure to meet expectations in that environment is that much greater.”

Failing a remediation program will usually result in probation, and completing a probation plan is exceptionally difficult given its terms and level of scrutiny, Rosen says. “Often, remediation is designed with the support of the resident in mind, whereas probation is often designed strictly on an evaluative basis," he says. "That’s why avoiding these formal designations is the best approach. If residents can’t, it’s important to ensure that the remediation or probation plan is fair and achievable.

“It’s also critical that the resident meets all requirements of remediation to avoid probation, and while on probation, to avoid dismissal from the program overall.”

Rosen says the courts are loath to interfere with a school faculty committee regarding its members’ evaluation of a resident.

“Even with the best support, it’s challenging to overturn a decision of a review board,” he says.