Will My Job Be Safe if I Defend My Patients?: When Patient Advocacy Collides with Employment Law
healthcare professionals, physicians, patients
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. 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, 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.
Moncrieff, Abigail R. and Manthous, Constantine A., "Will My Job Be Safe if I Defend My Patients?: When Patient Advocacy Collides with Employment Law" (2013). Law Faculty Articles and Essays. 1274.