Beware Venting About Staffing Problems

By Stacey Kusterbeck

Emergency providers know staffing shortages can delay diagnosis and treatment — to the patient’s detriment. “How EPs and ED nurses memorialize those concerns may differ,” says Caitlin Lentz, JD, an associate attorney at Hamil Little in Augusta, GA.

Some providers verbally complain about how care was delayed because the ED was overwhelmed. Others put in writing how the physician or nurse compensated for the delay. “In my experience, EPs and ED nurses think that noting concerns will protect them from an adverse employment action. But that’s not always the case,” Lentz cautions.

Disciplinary action by the employer could include termination. A termination and abrupt revocation of hospital privileges in some situations could result in additional licensure impacts. That could include a report to the National Practitioner Data Bank or a state licensing board investigation.

Some states protect providers from termination for advocating for patient care. Not every state offers such protection.

“We’ve experienced hospitals that terminate EPs for vocalizing concerns about the ED, generally alleging that the physician is a disturbance,” Lentz reports.

Even in states with such a protection, such as recognizing a tort for wrongful termination in violation of public policy, the strength of a terminated provider’s claim could be weakened by not following hospital grievance policies. For example, an ED provider could claim he or she was terminated for advocating for patient care by raising concerns regarding staffing issues.

“If the provider violated hospital policies in making those grievances by posting on social media, then the provider’s claim may be weakened,” Lentz explains.

The hospital’s defense could be the provider was terminated for violating social media policy. “The method of grievance could lend the hospital a more defendable position in taking an adverse employment action,” Lentz offers.

Some hospital leaders fire complaining EPs because of concerns about malpractice actions arising from complications attributable to staffing shortages. “Whatever the reason, complaining about staffing shortages does not necessarily offer employment protections to the person complaining,” Lentz warns.

Not following the specified grievance mechanism could place the provider at risk of employment repercussions. For example, if a frustrated EP vocalizes during the shift frustration with the lack of nurses, the hospital could treat the physician as a disruptive employee under its bylaws.

“That may allow the hospital to terminate the physician in a streamlined way,” Lentz says.

Emergency providers should follow proper channels for making such complaints. There may be a patient safety organization to which staff are directed to submit complaints, or the hospital could view the situation as an HR issue. “Whether complaints should be initially submitted through peer review would depend on the hospital’s policies,” Lentz says. “Peer review documents do have additional protections — but aren’t necessarily untouchable.”