Emergency medicine (EM) physicians have a heightened duty to advocate for the interests of their patients. They provide care for the most vulnerable people, including those who are physically and mentally impaired as well as those who are uninsured. EM physicians in this role may find themselves in conflict with hospital administration. “Physicians need due process rights at hospitals in order to fulfill their duty to serve as patient advocates,” explains Robert M. McNamara, MD, FAAEM.

A Complicated Issue

The term “due process” means that a person will not lose rights without access to fair procedures. In the hospital setting, due process means clinicians will not lose their medical staff privileges without a fair hearing, according to Dr. McNamara. In 1998, a survey of EM physicians showed that many had been threatened with adverse actions when serving as advocates for quality of care or raising concerns about financial matters. Since that survey, the healthcare system has come under increasing strain, with ED volumes increasing significantly. At some institutions, admissions to hospitals through the ED can generate more profit than non-ED admissions, creating potential pressure on EM physicians to increase admissions.



Further complicating matters is that many EM physicians nationwide are employed by contract management groups (CMGs). These are for-profit business entities, and Dr. McNamara says the relationship between EM physicians and CMGs may cause financial pressures. “Some of these CMGs are publicly held and run by lay corporate officers who must answer to shareholders. This is in contrast to physicians, who have a primary ethical duty to patients. This can lead to potential conflicts regarding patient care.”

Surveying the Scene

In the Journal of Emergency Medicine, Dr. McNamara and colleagues had a study published that surveyed EM physicians about their ability to advocate for patients. They also asked about the financial pressures EM physicians experienced relating to hospital-based practices. More than 60% of respondents reported that their employer could terminate them without full due process, and more than half reported that the hospital administration could order their removal from the clinical schedule (Table 1).

“Despite legal requirements of due process, it’s apparent from our survey
that many EM physicians do not believe they possess this protection.”

“Our survey also found that nearly 20% of EM physicians reported possible or real threats to their employment if they raised quality-of-care concerns,” says Dr. McNamara. “In addition, many respondents reported experiencing financial pressures relating to admissions, discharges, and transfers of patients. Our findings are concerning because they impact the well-being of physicians.” He notes that a lack of job security usually increases levels of career dissatisfaction among EM physicians. Just as important, the lack of due process makes it difficult for physicians to advocate for vulnerable patients.

Physicians who worked for CMGs reported a higher incidence of impaired practice rights than those who did not (Table 2). CMGs depend on a good relationship with hospitals to maintain their contracts for physician services, Dr. McNamara says. “Our results indicate that EM physicians working for CMGs may have less protection regarding their job security and are more concerned about speaking up about the quality of care.”

Assessing the Implications

Due process rights for physicians come from several sources, including several constitutional amendments. In private hospitals, physicians receive due process rights from other sources, most importantly the Health Care Quality Improvement Act of 1986. This act applies to all hospitals receiving federal funds and requires hospitals to fulfill a long list of requirements to ensure that physicians receive a fair hearing. Physicians also receive due process rights from guarantees in medical staff bylaws of nearly every hospital in the country due to Joint Commission standards that require these rights. “Despite legal requirements of due process, it’s apparent from our survey that many EM physicians do not believe they possess this protection,” says Dr. McNamara.

Considering results of the survey, Dr. McNamara says that EM physician organizations should bring their concerns about these issues to policymakers because they have major implications for the healthcare system and patient care. “The problems identified in our study may exacerbate as more ED contracts are acquired by the CMGs,” he says. “There should not be external pressure on EM physicians to admit patients. This should be an independent professional decision. Overall, better awareness of these issues is needed, and physicians need to advocate for due process. Without this necessary protection in place, the ability of physicians to speak on behalf of their patients may worsen in years to come.”