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Will My Job Be Safe If I Defend My Patients?Patient Advocacy vs Obedience to Employer: When Patient Advocacy Collides With Employment Law FREE TO VIEW

Constantine A. Manthous, MD, FCCP; Abigail R. Moncrieff, JD
Author and Funding Information

From the Department of Medicine (Dr Manthous), Yale School of Medicine, New Haven, CT; and Boston University School of Law (Dr Moncrieff), Boston, MA.

Correspondence to: Constantine A. Manthous, MD, FCCP, 4450 Whitney Ave, Hamden, CT 06518; e-mail: cmanthous@thocc.org


Reproduction of this article is prohibited without written permission from the American College of Chest Physicians. See online for more details.


Chest. 2013;144(4):1106-1110. doi:10.1378/chest.13-0040
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Physicians are moving increasingly from self-employed, private practices to at-will employment relationships. This historic change in the organizational administration of medical services is likely to accelerate as the Affordable Care Act is implemented and as accountable care organizations permeate the medical marketplace. Physicians vow an ascendant oath to safeguard patients’ welfare, but as they become employees, they may sign legal contracts that also oblige obedience to the institutions that hire them. What happens when an employer makes a decision that is not in the best interests of patients and the physicians fulfill their Hippocratic obligation to voice dissent on their patients’ behalf rather than abiding by their contractual obligation to obey their employer? This article explores the philosophical and legal ramifications of this potential collision of obligations to patients and to employers.

As health-care spending is reined in, hospitals will face the ever-increasing challenge of balancing financial considerations with ethical responsibilities to patients. In efforts to control costs, providers might make decisions that endanger patient health, provoking dissent from clinician-employees who are ethically obligated to advocate for their patients.1,2 Hospitals might implement cost-saving measures that inadvertently negatively affect health because they deem such measures to be the lesser of evils when the alternative is financial distress. But when that happens, could a clinician be fired for speaking against corporate policy, or does he or she have a right to speak without fear of retribution? As more clinicians become employees rather than independent contractors, the protections available for employee speech become highly relevant to health care, and particularly to patient safety. Current understanding is that there are > 100,000 preventable deaths each year in American hospitals,3 and only clinicians’ empowered participation through speech aimed at defining and repairing unsafe systems can curb this unacceptable statistic.

The law in most states, however, does not provide clear protection from retaliation for health-care professionals engaged in patient advocacy. This article, therefore, urges reform to provide such protection as well as urges health-care professionals within and beyond corporate entities to work toward construction of just cultures in which every member of the health-care team is empowered and encouraged to report problems.4

The right to free speech is arguably the most important American constitutional right. Democracy is predicated on the opportunity to participate in public decision-making, and speech is the means of that participation. It is a fundamental engine and nutrient of democracy.

Speech, however, coexists with private enterprise, another liberty afforded in the US constitution’s property protections. Private for-profit enterprises aim to create capital and wealth, which support the public good, and private nonprofit enterprises, like many hospitals, must maintain enough capital to survive and pursue their missions. Some speech by employees could disrupt those ends. Especially when employees speak for public interests that conflict with employers’ capital interests, there is a potential for collision of liberties. The question, then, is which liberty should prevail when speech and property interests collide. Can a corporation in the name of wealth creation or preservation punish its employees for public-regarding speech like patient advocacy?

On first approximation, the answer is that a private corporation clearly may fire employees for their speech because the First Amendment does not constrain private actors. Under the state action doctrine, constitutional rights apply only if government acts, not if private parties do. To see why, one must simply look to the text of the First Amendment, which states, “Congress shall make no law...abridging the freedom of speech.” Thus, the clinician who is fired by a private hospital cannot object that his or her constitutional right has been violated. Moreover, since the landmark Supreme Court ruling of Garcetti v Ceballos, even employees of government entities do not enjoy federal constitutional protections for speech in the public interest if that speech constitutes work product that is part of the employee’s job.5 Although many or most hospitals are not for profit, hospital executives and directors have a fiduciary responsibility to serve the community and to pursue that end responsibly; they must balance the budget. Even though the focus is not on profits, every hospital administrator is required to juggle complex cost-benefit ratios, and because employee dissent can cause costly disruption, the nonprofit and for-profit hospital administrator alike must decide how much of such dissent is tolerable in light of budget constraints. Sometimes patient advocacy asks for more resources that may not be available or are dissonant with a sound financial plan. The answer to a provocative employee may simply be no, and if the employee persists in vocal dissent, the hospital can punish the employee’s disobedience. But are there constraints on employers’ actions or protections for specific forms of employee expression?

Despite the unavailability of a constitutional claim, a fired clinician might not be wholly without legal remedy. In 49 states, the default rule for employment is at will, which means that an employee may quit or be fired for any reason or no reason at all. But 47 at-will states have created public policy exceptions to the default rule, giving employees a wrongful discharge claim when they are fired for reasons that violate well-settled public policy.6 Although this protection is broader in some states than in others and although very few states provide such protection for general speech (Table 1), many states have passed statutes or established judicial precedents that provide potential claims for health-care professionals who are fired for patient advocacy.

Table Graphic Jump Location
Table 1 —State Protections for Patient Advocacy6
a 

During the managed care crisis of the early 2000s, many states passed statutes protecting clinicians from disenrollment in managed care entities if they advocated on behalf of a particular patient’s claim for insurance coverage. Most of these statutes protect clinicians only in the specific situation of advocacy for insurance benefits.

b 

These statutes protect clinicians (and other employees) who report their employer’s illegal behavior to the authorities. These statutes apply to patient advocacy only when the reported patient safety violation is a crime or a clearly established civil infraction.

c 

These states have broad language in their statutes that protects clinicians from discharge for objecting to corporate policies. Only in California have the courts applied the statute to protect broad patient advocacy. In Illinois, a court held that identical statutory language was too vague to create a public policy exception to at-will employment.

d 

These states hold that a clearly stated code of ethics establishes a public policy of the state and that clinicians cannot be fired for refusing to commit an ethics violation.

That said, all claims of wrongful discharge must contend with the countervailing public policy of an employer’s freedom to discipline employees, and the success of any public policy argument, therefore, crucially depends on the facts. As the law currently stands in most states, employee speech gains clear protection when the employee is identifying unlawful conditions in the workplace, such as objecting to a boss’s fraudulent conduct. At the other end of the spectrum, employee speech gains no protection when the employee is advocating for his or her individual subjective needs, such as objecting to the lack of candy bars in the vending machine. The hard cases are those in which an employee contends that his or her employer is neglecting a public (rather than a personal) need, but the employer clearly is not breaking the law. In those cases, the courts may not consider themselves equipped to conduct the balance of interests required to determine whether the employee’s disruptive conduct is worth protecting, leaving judges and juries with the default rule of at-will employment and termination. Unfortunately, patient advocacy falls squarely into this category of hard cases. When a physician-employee points out unsafe conditions for patients, he or she is not pursuing a subjective personal interest like candy bars in the vending machine but is not pointing out conduct that clearly is illegal either. Hospital-wide choices to value other goods over patient safety or even other safety and quality initiatives, particularly when those choices are necessary for budgetary reasons, are not illegal, even when they clearly cause harm to patients. In short, most cases in which clinicians’ public-regarding activities might collide with obedience to their employers are subject to state (not federal) statutes and tort precedents, and all such claims currently face the significant hurdle of fitting their facts into explicit statutory or precedential public policy exceptions (Table 1) as well as the hurdle of establishing that protection for the relevant public-regarding behavior will not undermine employers’ disciplinary freedom. Finally, although physicians might seek contracts with explicit protections for patient advocacy, such contracts are by no means universal, and other clinicians, such as nurses, respiratory therapists, nutritionists, and physiatrists, remain subject to at-will termination.

Despite its narrow focus on federal constitutional rights (and, therefore, public employees), Garcetti v Ceballos could have implications for the patient safety movement. Garcetti creates an implicit requirement for retaliatory discharge law (the federal constitutional equivalent of wrongful discharge in the states) that employees can gain legal protection for workplace speech only if they make their objections public outside of the workplace. A publicity requirement, while serving the values of debate and democracy, creates a risky situation for the whistle-blower; supervisors and colleagues might see him or her as a traitor for leaving the chain of command, and because the employee must go public with this “treachery,” he or she might risk future employability. Furthermore, such a rule might conflict squarely with clinicians’ obligations of patient confidentiality. To the extent that Garcetti will discourage patient advocacy, it is anathema to clinicians’ values, and its impact has already been felt. The Connecticut Supreme Court applied Garcetti as the legal underpinning to overturn a lower court ruling on behalf of a clinician claiming termination for patient advocacy:

We disagree with those cases holding Garcetti inapplicable in the private sector because of their incongruous effect of giving private sector employees greater workplace free speech rights than those afforded to their public sector counterparts—a result plainly not envisioned in the Supreme Court’s decision, which recognized that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services....Thus, we conclude that the rule in Garcetti v. Ceballos, supra, 547 U.S. 410, applies to claims under § 31-51q grounded in the first amendment that are brought against private employers.”7

State legislatures must determine, therefore, whether the health-care workplace—where conduct has great import for the public good—deserves explicit statutory protections for speech expressed on behalf of patients.

Fortunately, wrongful discharge rules can protect more patient advocacy than the First Amendment (under Garcetti v Ceballos) would. The states that have crafted public policy exceptions could specify either through case law or by statute that those exceptions apply to patient advocacy even when such advocacy occurs internally. Alternatively, Congress could provide federal statutory protection for patient safety advocates to ensure a fair balance between clinician speech interests and hospital capital interests. This balance must preclude frivolous or personal complaints but embrace honest speech directed at protecting patients. Additionally, individuals could request explicit contractual protection for speech pertaining to patient advocacy. Although physicians who are aware enough to request such contractual provisions might receive protection, it is not a solution that will work for the average clinician-employee. Most employment contracts in most settings, including hospital settings, are not subject to provision-by-provision negotiation. In fact, all of these legal considerations may be logistically moot. In reality, employers can discharge employees and force them to seek legal (eg, whistle-blower or other statutory) redress. Cases can take years to wind through the courts, and in the meantime, employees must find other employment and pay legal fees for an uncertain result. The emotional toll of legal confrontation is another factor that weighs against a litigious solution, and even when the employee prevails, resuming his or her previous job often is infeasible and undesirable.

Although somewhat idealistic, a more potent solution would be for all health-care settings to build and maintain a just culture4 in which patient advocacy is not only tolerated but also encouraged. If clinicians and hospital boards of directors insist on just cultures, they can legislate de facto reversal of the philosophical underpinnings of Garcetti simply by refusing to punish dissent on behalf of patient safety and quality of care. Cases like Garcetti are obviated in cultures that view dissent not as a threat to an organization but rather as a means to fortify the long-term financial well-being of a corporation. Although the Courts may assist in egregious cases, the solution to employees’ free speech is not the legal process but rather just cultures enforced by all stakeholders. Nonetheless, public exceptions to at-will termination should include explicit protections for clinicians who act professionally in advocacy of patient safety and quality-of-care interests.

So, the answer to the question, “Will my job be safe if I defend my patients?” is it depends. It depends on both the clinician’s means of voicing his or her concerns and the culture of the organization. In 2013, however, most clinicians cannot count on legal protections for speech on behalf of patient safety. There is no First Amendment right to speak on behalf of patient safety, and as a recent front-page story The New York Times reflected:

Doctors at numerous hospitals said it was often difficult to criticize the policies instituted by hospitals or investor-owned physician groups because, as employees, they could easily be fired.

“We all have families, and we have mortgages,” said an emergency room physician. “If you get fired, it looks bad and it’s hard to get another job.”8

Specific Suggestions
Legal Remedies:

  • 1. Employees can request contractual protections for patient advocacy, but some (eg, nurses) are unlikely to receive them. Furthermore, even if installed, contractual provisions do not solve the fundamental problem of misaligned values.

  • 2. Unionization is another mechanism to protect employees. Historically, unions have focused activities on protecting the selfish interests of employees (eg, wages, working conditions, hours). Unions could, however, work to protect other-regarding employee behavior, like patient advocacy. That said, unions’ primary lever is work actions that could harm patients and are, thus, anathema to clinicians’ ethics. Unions have not captured a preponderance of US clinicians (ie, doctors, nurses). Health-care unions designed instead to protect patients first and employees’ speech and other rights second could offer a mechanism for defending professionally expressed patient advocacy. No such union exists, but in theory, such unions might permit a counterbalance to corporate abuse that undermines patient care.

  • 3. Legislation to protect patient advocacy either by explicitly acknowledging it as a public exception to at-will termination or through global federal legislation would require political activism on the part of clinicians. We acknowledge that most clinicians do not view this as a serious threat to their autonomy or patient safety. Many are able to navigate crucial conversations. Others may be frustrated but are unwilling to participate in the activism required to carve out legal protections. So legal solutions are more likely to arise from case law unless or until physicians more globally find themselves in at-will employment relationships and unable to satisfy their ethical obligations to patient safety. Nonlegal strategies are likely to obviate such a scenario.

Nonlegal Methods of Protection From Shortfalls of At-Will Employment:

  • 4. The surest way not to be fired for patient advocacy is to be self-employed. Nurses are seldom, if ever, self-employed hospital workers. And although some physicians continue to own (and govern) their own practices, self-employed physician numbers are dwindling rapidly (57% in 2000 to 39% in 2012).8 The economic safety of practicing in large groups or hospitals comes at a cost of reduced autonomy (ie, required obedience to an employer). Current economic forces favor continued movement of physicians from private practice to at-will employment, and once medical practices are corporatized, it may be difficult to reprivatize them. If at-will employment is an unavoidable tidal wave, clinicians must be aware of the autonomy they cede and consider measures (discussed next) to mitigate risks associated with stalwart patient advocacy.

  • 5. Clinicians employed by hospitals or other corporate entities need not abrogate what is arguably their ascendant duty to advocate for patients. Tact and diplomacy, however, are required. An increasing body of literature advises a judicious approach to crucial conversations,9 but the ideal is to remain collaborative and nonaccusatory and to examine how one’s patient advocacy goals can be aligned with an employer that may not initially understand or agree. In fact, many more hospitals are coming to embrace just, high-reliability cultures that embrace creative thinking and dissent. But as with all human interactions, success often hinges on the manner in which ideas are communicated, and clinicians ought not to assume or infer that they alone speak for patient welfare, an assumption that may undermine constructive engagement and successful advocacy. Unfortunately, employees too often engage in petulant misbehavior under the pretext of defending patients that actually undermines patient safety. Clinicians must discern the difference between courageous, respectful advocacy and disruptive behavior.10 Disrespectful patient advocacy can inadvertently become self-defeating. It is only human nature for employers to tune out employees who complain without offering constructive solutions. Even worse, if employees assume or imply that the employer is willfully neglectful, that only the clinician truly cares about patient welfare, employers are likely to react rather than collaborate. Courageous conversations include treating others nonjudgmentally and working as a team where possible to align both patient and financial interests to solve problems. Sometimes the strength of patient safety arguments will win the day, but sometimes other institutional priorities may prevail, leaving clinicians to make the best of a suboptimal situation or find a new position if the conclusion is intolerable. Although fighting on may seem appealing, the risks of termination are real, and even in egregious cases, vindication through the courts comes at the cost of dislocation and years of unpleasant litigation. Even successful cases come at a high price, so we advise strongly against legal remedies except to correct flagrant misconduct or illegality.

  • 6. Employees (and communities served by hospitals) can unite around and insist on just cultures4 in which patient-centered dissent is not only tolerated but also embraced as a means of improving institutional quality and safety cultures. But such principles must simultaneously be embraced by all levels of an organization and enforced by boards of directors. To the extent that boards include clinician-members, those members should be chosen for their patient championship, and they should maintain strong ties with and open doors for clinicians who have concerns about patient welfare.

Although no data are available to quantify and qualify penetration of just cultures in US hospitals, we are optimistic that most hospitals hire well-meaning administrators whose primary focus is serving communities and patients. Nonetheless, as financial pressures mount, hospitals will inevitably face hard choices on where to invest resources, and all those choices could potentially come at a cost to quality or safety. Clinician-employees would be well advised to fully understand the limits of free speech expressed on behalf of patients, build just cultures to the extent possible, and learn skills to successfully navigate this tension of obedience to employer vs obligation to patient.

Financial/nonfinancial disclosures: The authors have reported to CHEST that no potential conflicts of interest exist with any companies/organizations whose products or services may be discussed in this article.

ABIM Foundation. American Board of Internal Medicine;ACP-ASIM Foundation. American College of Physicians-American Society of Internal Medicine;European Federation of Internal Medicine. Medical professionalism in the new millennium: a physician charter. Ann Intern Med. 2002;136(3):243-246. [CrossRef] [PubMed]
 
Manthous CA. Hippocrates as hospital employee: balancing beneficence and contractual duty. Am J Crit Care. 2012;21(1):60-66. [CrossRef] [PubMed]
 
Institute of Medicine. To Err is Human. Washington, DC: National Academy Press; 2001.
 
Khatri N, Brown GD, Hicks LL. From a blame culture to a just culture in health care. Health Care Manage Rev. 2009;34(4):312-322. [CrossRef] [PubMed]
 
Garcetti v. Ceballos, 547 US 410 (2006). Supreme Court of the United States website. http://www.supremecourt.gov/opinions/05pdf/04-473.pdf. Accessed March 6, 2012.
 
Littler Mendelson. Chapter 7: 50-state survey of wrongful discharge law. In:The National Employer. San Francisco, CA: Littler Mendelson; 2009. Just Cause Reform website. http://www.justcausereform.com/wp-content/uploads/2012/09/The-National-Employer.-50-STATE-SURVEY-OF-WRONGFUL-DISCHARGE-LAW.pdf. Accessed March 27, 2012.
 
G. Berry Schumann v. Dianon Systems, Inc. SC18655. State of Connecticut Judicial Branch website. http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR304/304CR125.pdf. Accessed November 2, 2102.
 
Creswell J, Abelson R. A hospital war reflects a bind for doctors in the US. The New York Times. November 30, 2012: A1, A18.The New York Timeswebsite. http://www.nytimes.com/2012/12/01/business/a-hospital-war-reflects-a-tightening-bind-for-doctors-nationwide.html?pagewanted=all&_r=0. Accessed January 7, 2013.
 
Patterson K, Grenny J, McMillan R, Switzler A. Crucial Conversations: Tools for Talking When Stakes Are High. New York, NY: McGraw-Hill; 2002.
 
Manthous CA, Ivy M. Commentary: disruptive physicians. Am J Med Qual. 2012;27(3):258-260. [CrossRef] [PubMed]
 

Figures

Tables

Table Graphic Jump Location
Table 1 —State Protections for Patient Advocacy6
a 

During the managed care crisis of the early 2000s, many states passed statutes protecting clinicians from disenrollment in managed care entities if they advocated on behalf of a particular patient’s claim for insurance coverage. Most of these statutes protect clinicians only in the specific situation of advocacy for insurance benefits.

b 

These statutes protect clinicians (and other employees) who report their employer’s illegal behavior to the authorities. These statutes apply to patient advocacy only when the reported patient safety violation is a crime or a clearly established civil infraction.

c 

These states have broad language in their statutes that protects clinicians from discharge for objecting to corporate policies. Only in California have the courts applied the statute to protect broad patient advocacy. In Illinois, a court held that identical statutory language was too vague to create a public policy exception to at-will employment.

d 

These states hold that a clearly stated code of ethics establishes a public policy of the state and that clinicians cannot be fired for refusing to commit an ethics violation.

References

ABIM Foundation. American Board of Internal Medicine;ACP-ASIM Foundation. American College of Physicians-American Society of Internal Medicine;European Federation of Internal Medicine. Medical professionalism in the new millennium: a physician charter. Ann Intern Med. 2002;136(3):243-246. [CrossRef] [PubMed]
 
Manthous CA. Hippocrates as hospital employee: balancing beneficence and contractual duty. Am J Crit Care. 2012;21(1):60-66. [CrossRef] [PubMed]
 
Institute of Medicine. To Err is Human. Washington, DC: National Academy Press; 2001.
 
Khatri N, Brown GD, Hicks LL. From a blame culture to a just culture in health care. Health Care Manage Rev. 2009;34(4):312-322. [CrossRef] [PubMed]
 
Garcetti v. Ceballos, 547 US 410 (2006). Supreme Court of the United States website. http://www.supremecourt.gov/opinions/05pdf/04-473.pdf. Accessed March 6, 2012.
 
Littler Mendelson. Chapter 7: 50-state survey of wrongful discharge law. In:The National Employer. San Francisco, CA: Littler Mendelson; 2009. Just Cause Reform website. http://www.justcausereform.com/wp-content/uploads/2012/09/The-National-Employer.-50-STATE-SURVEY-OF-WRONGFUL-DISCHARGE-LAW.pdf. Accessed March 27, 2012.
 
G. Berry Schumann v. Dianon Systems, Inc. SC18655. State of Connecticut Judicial Branch website. http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR304/304CR125.pdf. Accessed November 2, 2102.
 
Creswell J, Abelson R. A hospital war reflects a bind for doctors in the US. The New York Times. November 30, 2012: A1, A18.The New York Timeswebsite. http://www.nytimes.com/2012/12/01/business/a-hospital-war-reflects-a-tightening-bind-for-doctors-nationwide.html?pagewanted=all&_r=0. Accessed January 7, 2013.
 
Patterson K, Grenny J, McMillan R, Switzler A. Crucial Conversations: Tools for Talking When Stakes Are High. New York, NY: McGraw-Hill; 2002.
 
Manthous CA, Ivy M. Commentary: disruptive physicians. Am J Med Qual. 2012;27(3):258-260. [CrossRef] [PubMed]
 
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