(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 22, l997 -- Decided April 30, 1997
GARIBALDI, J., writing for a majority of the Court.
The issue in this appeal is whether a medical resident is entitled to counsel at an internal hearing
regarding her academic termination from a private hospital's residency program and whether a court
reporter may transcribe such proceedings.
Dr. Allyn Hernandez was a medical resident pursuing post-graduate training in the Internal
Medicine Residency Program at Overlook Hospital, a private non-profit hospital in Summit, New Jersey. By
contract, a resident is entitled to remain in the Program so long as his or her services are deemed
“satisfactory” by the Program Director and the Hospital. The contract expressly provided that Overlook
may terminate the resident's appointment “for just and sufficient academic cause” and that a terminated
resident may use the Employee Appeal Procedure as outlined in the House Staff Manual. Any
determination rendered by the Appeal Board, which is comprised of a Program Director and the Chairman
of the Department of Medical Education, is final and binding on both the resident and the Hospital.
Dr. Hernandez was terminated for academic reasons in October 1994. Following her termination
and pursuant to the Employee Appeal Procedure set forth in the House Staff Manual, Dr. Hernandez
challenged the Program Director's decision on the grounds that the academic judgment was arbitrary,
capricious, or a prejudicial judgment not based on documented evaluations. She demanded that her attorney
be permitted to appear and participate in the appeal proceedings and demanded that various documents,
including patient records, be disclosed to her and her attorney. Overlook denied both requests, maintaining
that the appeal procedure was intended to provide a medical review by experienced physicians of a Program
Director's academic judgment and was not a legal proceeding. Overlook further advised Dr. Hernandez that
only she, and not counsel, could review certain relevant documents and patient files prior to the hearing.
Thereafter, in an effort to avoid legal proceedings, Overlook agreed to permit plaintiff's counsel to
attend the hearing, to provide advice to Dr. Hernandez, and to make a brief opening and closing statement.
Counsel was also given authority to review relevant documents, with the exception of patient records.
Overlook refused, however, to allow counsel to present evidence or provide a shorthand reporter to
transcribe the proceedings. Dr. Hernandez rejected Overlook's offer, insisting on the presence of counsel
and a shorthand reporter at the proceeding, on the right to present evidence at the proceeding, and, finally,
on counsel's unlimited access to relevant patient records.
Unable to reach an acceptable agreement, Dr. Hernandez sought injunctive relief. The trial court
denied some of Dr. Hernandez's requests for injunctive relief, but held that she was entitled to the
representation of counsel at the internal review of her dismissal. Specifically, the trial court directed that
counsel be permitted to participate in the termination proceedings, offer evidence in the doctor's behalf,
explain adverse data, and present arguments to the Appeal Board. The trial court further allowed the
proceeding to be transcribed. The Appellate Division affirmed the trial court's determination.
At the subsequent appeals hearing, the Appeal Board of the Hospital rendered a decision to
terminate Dr. Hernandez. Thereafter, the Hospital filed, and the Supreme Court granted, a petition for
certification.
HELD: A medical resident does not have the right to counsel at a private academic hearing and any such
hearing does not have to be transcribed.
1. The doctrine of exhaustion of remedies requires that parties pursue available internal proceedings to
conclusion before seeking judicial intervention and discourages premature judicial intervention in
administrative proceedings. (pp. 6-7)
2. Assessing a student's academic performance must be left to the sound judgment of the individual
academic institution. (pp. 7-12)
3. Residents facing termination proceedings are not entitled to an adversarial type of hearing prior to
dismissal. Rather, all that is required is a “fair procedure.” To hold otherwise would severely hinder
expeditious review of academic judgments. (pp. 12-16)
4. There may be situations in which the employer's interest in academic freedom is outweighed by other
considerations, such as claims that the termination was motivated by reasons that violated the resident's Civil
Rights. (p. 16)
5. A “fair procedure” includes the right to adequate notice of the deficiencies, an opportunity to examine
the evidence of those deficiencies used by the hospital to make its academic decision, and the right to present
a case to the decision-making authority. (pp. 17-18)
Judgment of the Appellate Division is REVERSED.
JUSTICE POLLOCK filed a separate dissenting opinion in which both JUSTICE HANDLER and
JUSTICE STEIN join. Justice Pollock considered it fundamentally unfair to deny a medical resident the
right to counsel at a proceeding to terminate his or her residency.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN and COLEMAN join in JUSTICE
GARIBALDI'S opinion. JUSTICE POLLOCK filed a separate dissenting opinion in which JUSTICE
HANDLER and JUSTICE STEIN join.
SUPREME COURT OF NEW JERSEY
A-
114 September Term 1996
ALLYN HERNANDEZ, M.D.,
Plaintiff-Respondent,
v.
OVERLOOK HOSPITAL,
Defendant-Appellant.
Argued January 22, l997 -- Decided April 30, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
293 N.J. Super. 260 (l996).
James E. Patterson argued the cause for
appellant (Greenbaum, Rowe, Smith, Ravin,
Davis & Himmel, attorneys).
Christopher J. Carey argued the cause for
respondent (Tompkins, McGuire & Wachenfeld,
attorneys; Mr. Carey and Mary Ann McConeghy,
on the brief).
The opinion of the Court was delivered by
GARIBALDI, J.
The central issue presented in this case is whether a
medical resident is entitled to counsel at an internal hearing
regarding her academic termination from a private hospital's
residency program. We also decide whether a court reporter may
transcribe such proceedings. We hold that a medical resident
does not have the right to counsel at a private academic hearing
and that the hearing does not have to be transcribed.
Plaintiff, Dr. Allyn Hernandez, a graduate of the Universidad Central Del Caribe Medical School, was a medical resident (also known as "house staff") pursuing post-graduate training in the Internal Medicine Residency Program at Overlook Hospital, a private non-profit hospital in Summit, New Jersey. The Program consists of three years of training under the supervision of a Program Director, the Program Associate Director, various attending physicians from the hospital medical staff, and the residents, including the Chief Resident. The Program is accredited and reviewed by the Accreditation Council for Graduate Medical Education (ACGME).
By contract, a resident is entitled to remain in the Program so long as his or her services are deemed "satisfactory" by the Program Director and the Hospital. The contract expressly provides that Overlook may terminate the resident's appointment "for just and sufficient academic cause." The contract also states that a terminated resident may use the Employee Appeal Procedure as outlined in the House Staff Manual.
Plaintiff was a second-year resident when she entered into a one-year written contract with Overlook for appointment to the hospital's "House Staff" for the term of July l, l994, through June 30, l995. As a second-year resident, plaintiff's right to
practice medicine was very restricted. She was not a member of
the medical staff, could not admit or discharge patients, and
could not prescribe drugs for out-patients without the signature
of a licensed physician.
Plaintiff was terminated for academic reasons in October
l994. A report prepared by the Chief Resident stated that it was
the Chief Resident's opinion that plaintiff lacked the clinical
judgment necessary for a second-year resident, failed to offer
adequate leadership or guidance to her interns, and had
difficulty with professionalism and decorum when dealing with
other staff members. The Chief Resident also addressed various
incidents where plaintiff improperly treated or diagnosed
patients.
In addition, the Program Director, Michael Bernstein, M.D.,
stated that plaintiff had been counseled previously about the
deficiencies in her academic performance, but failed to improve
to a satisfactory level. In fact, plaintiff had been rotated
into the medicine service on July l, l994, as an intern rather
than as a supervisor because of her weakness in clinical
assessment, decisionmaking, and follow-up. Dr. Bernstein states
that in the exercise of his academic judgment, he terminated Dr.
Hernandez because she was deficient in her academic performance
in several areas, including diagnosis and academic development.
Following her termination, plaintiff, pursuant to the
contract for employment, invoked the Employee Appeal Procedure
set forth in the House Staff Manual. The Manual allows
residents, who are terminated for academic reasons, to challenge
the Program Director's decision on the grounds that the academic
judgment was arbitrary, capricious, or a prejudicial judgment not
based on documented evaluations. The Appeal Board consists of a
Program Director other than the terminated resident's Director
and the Chairman of the Department of Medical Education. The
Appeal Board's determination is final and binding on both the
Hospital and the terminated resident.
Overlook notified plaintiff by letter that an Appeal Board
meeting was scheduled on January 24, 1995. Plaintiff demanded
that her attorney be permitted to appear and participate in the
proceedings. Plaintiff also demanded that various documents,
including patient records, be disclosed to her and her attorney.
Overlook denied both requests.
Overlook offered the following reason to justify its
decision to exclude counsel from the academic termination
hearing:
The Appeal's procedure is intended to provide
a medical review by experienced physicians of
a Program Director's academic judgment. It
is not a legal proceeding and, therefore, no
attorney (either for the hospital or the
resident) will be permitted to participate or
attend the meeting with the Appeal Board.
Overlook also advised plaintiff that only she, and not counsel, could review certain relevant documents and patient files at least five days prior to the hearing. The Hospital reached this
decision because of its strict policy of maintaining the
confidentiality of patient's records.
Nevertheless, in an effort to avoid legal proceedings and
settle the dispute with plaintiff, Overlook subsequently agreed
to permit plaintiff's counsel to attend the hearing, to provide
advice to plaintiff, and to make brief opening and closing
statements. Plaintiff's counsel was also given authority to
review relevant documents, with the exception of patient records.
Overlook refused, however, to allow plaintiff's counsel to
present evidence or provide a shorthand reporter to transcribe
the proceedings. Overlook's counsel would also be permitted to
present a brief opening and closing statement to the Board.
Plaintiff, by letter, rejected Overlook's offer, insisting
on the presence of counsel and a shorthand reporter at the
proceeding. Plaintiff also reasserted her position that counsel
should have the right to present evidence on her behalf.
Additionally, plaintiff claimed that to prepare adequately for
the charges against her, she and her counsel needed to review the
patient records on which her termination was primarily based.
Unable to reach an acceptable agreement, plaintiff sought
injunctive relief. The trial court denied certain of plaintiff's
requests for injunctive relief, but held that plaintiff was
entitled to the representation of counsel at the internal review
of her dismissal. Hernandez v. Overlook Hosp.,
291 N.J. Super. 462 (Ch. Div. 1995). The trial court directed that plaintiff's
counsel be permitted to participate in the termination
proceedings, offer evidence on plaintiff's behalf, explain
adverse data, and present arguments to the Board. The court also
allowed the proceedings to be transcribed. The Appellate
Division affirmed.
An employee appeals hearing was held on August 23, 1995.
Pursuant to the trial court's order, plaintiff and defendant were
represented by counsel and the proceedings were transcribed by a
shorthand reporter. A final decision to terminate plaintiff has
been rendered by the Board. At oral argument, both parties
agreed that the hearing was satisfactory and in full compliance
with the trial court's order.
We first address defendant's argument that the decisions below should be reversed because they ignore the principles of "exhaustion of remedies." The doctrine of exhaustion of remedies requires that parties pursue available internal proceedings to conclusion before seeking judicial intervention. Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 559 (1979). That policy discourages premature judicial intervention in administrative proceedings. As in Garrow, we do not find any "crucial need which would justify judicial intervention" or that plaintiff's "claim to . . . counsel rise[s] to such level as to warrant interlocutory judicial interference" in this matter. Id. at 562. Because the parties have briefed and argued the issues,
and the issues are recurring, we will proceed to discuss the
nature and extent of procedural rights available to a terminated
medical resident during an internal review of her academic
termination.
Although our courts have addressed the procedural protections owed to fully-licensed practitioners when denied staff appointments or privileges, Garrow, supra, 79 N.J. 549 (1979); Zoneraich v. Overlook Hosp., 212 N.J. Super. 83 (App. Div.), certif. denied, 107 N.J. 32 (1986), this case involves issues of a different dimension.
Residents, unlike licensed physicians, are generally considered students subject to the academic requirements of a residency program. See, e.g., Muhammed v. Mats, 635 F. Supp. 748, 751 (E.D. Mich. 1986) ("[a]s a resident, plaintiff was undeniably a student, subject to the academic requirements of the . . . program"); Samper v. University of Rochester, 528 N.Y.S.2d 958, 961 (N.Y. Sup. Ct. 1987) "[T]he residency program was both a job and an educational prerequisite to the career goals of the plaintiffs"). While staff members are licensed and accredited physicians, plaintiff held only a temporary permit, allowing her to practice medicine on an extremely limited basis.
Last term, we faced similar issues in In re University of Medicine & Dentistry, 144 N.J. 511 (1996). In that case, we interpreted the New Jersey Employer-Employee Relations Act,
N.J.S.A. 34:13A-1 to -29 (the Act), as it related to the
University of Medicine and Dentistry of New Jersey's (UMDNJ)
right to academic freedom. The principal issue in that case was
"whether UMDNJ, a public employer, violated the Act when it
refused to allow an intern's union representative to be present
at an investigatory interview concerning the extent of discipline
to be imposed on that intern for his alleged incompetence." Id.
at 515. We were also called on to decide whether UMDNJ's refusal
to provide the union with notice and pertinent information
regarding the disciplinary action violated the Act. Ibid.
We began our analysis by finding that the intern was a
"public employee" for the purposes of the Act and that the Act
provided New Jersey public employees with the same right to have
union representation at disciplinary investigations ("Weingarten
right") as contemplated by the Federal National Labor Relations
Act (NLRA). Id. at 529-30 (citing NLRB v. J. Weingarten Inc.,
420 U.S. 25l,
95 S. Ct. 959,
43 L. Ed 2d l7l (l975)). The next
step, however, was to decide whether the Weingarten right was
limited by the public policy of academic freedom or contractually
waived by a collective negotiating agreement entered into between
UMDNJ and the union. Id. at 530.
Although we observed that the Act, under most circumstances,
required UMDNJ to provide the union with notice and information
when initiating disciplinary actions against employees, we
recognized that "this case involve[d] a university teaching
hospital deciding to terminate a student/employee for his alleged
inability to treat patients in accordance with medical standards.
That situation triggers a concern for academic freedom that might
temper the rights provided in the Act." Id. at 532.
We found that the union was not entitled to interfere with
UMDNJ's academic and medical decisionmaking process and that
UMDNJ had the right "to determine for itself on academic grounds
who may teach, what may be taught, how it shall be taught, and
who may be admitted to study." Id. at 533 (quoting Sweezy v. New
Hampshire,
354 U.S. 234, 263,
77 S. Ct. 1203, 1217,
1 L. Ed.2d 1311, 1332 (1957) (Frankfurter, J., concurring)). We summarized
the concept of "academic freedom" that Justice Frankfurter
contemplated in Sweezy, supra, 354 U.S. at 234, 77 S. Ct. at
1217, 1 L. Ed.
2d at 1332, in the following manner:
The concept of academic freedom that the
university invokes in support of its claim of
privilege is not unfamiliar to the judiciary.
The public interest in promoting higher
education reflects the view that `it performs
an essential social function' by promoting
`the pursuit of truth, the discovery of new
knowledge through scholarship and research,
teaching and general development of students,
and the transmission of knowledge and
learning to society at large.' As a result
of this interest, courts have developed a
concept of `[a]cademic freedom, [which]
though not a specifically enumerated
constitutional right, long has been viewed as
a special concern of the First Amendment.'
[Dixon v. Rutgers, The State Univ.,
110 N.J. 432, 448 (1988)(citations omitted).]
Accord Snitow v. Rutgers Univ.,
103 N.J. 116, 121-22 (1986).
In In re University of Medicine & Dentistry, supra, we found
that the union had "the right to notice and information about
pending discipline so that it may decide . . . that the
discipline does indeed involve an academic or medical judgment."
Id. at 536. We therefore held that interns were entitled to
union representation at termination hearings pursuant to
Weingarten. Ibid. We emphasized, however, that a union
representative is not to act
as an adversarial advocate in a proceeding;
instead the union representative is simply
there to consult with the intern, to explain
the proceedings and provide a sympathetic ear
during the hearing. However, while the
intern is entitled to those rights, those
rights end as soon as it is clear that the
matter involves a truly academic or medical
judgment. At that point the University's
interest in academic freedom predominates
over the rights guaranteed by the Act, and
the union representative should leave the
hearing and expect to receive no further
information.
In this case, the decision to terminate plaintiff was based
solely on her academic performance. The circumstances
surrounding plaintiff's termination arose entirely out of her
status as a medical student participating in an academic
residency program that was designed to teach plaintiff the skills
necessary to become a fully-licensed physician. Thus, Overlook's
dismissal of plaintiff was indistinguishable from any other
institutional decision to pass or fail a student for failure to
meet academic requirements.
In a case based on very similar facts, the Minnesota Court
of Appeals reached a similar conclusion. Ross v. University of
Minnesota,
439 N.W.2d 28 (l989). In Ross, a resident was
dismissed from the University of Minnesota's psychiatric
residency program. 439 N.W.
2d at 31. The resident claimed,
inter alia, denial of substantive and procedural due process
rights. Ibid.
For the purpose of reviewing the University's decision to
terminate the resident for academic reasons, the court found that
the resident was a student, not an employee, of the University.
Id. at 33. The court's finding was based on the fact that the
gravamen of the resident's complaint "arose in the academic arena
and must therefore be considered an academic problem concerning a
student." Ibid.
As such, the University's dismissal was viewed as a pass or
fail decision based on the student's ability to meet curriculum
standards. Ibid. In consideration of the academic context of
the decision, the court deferred to the University's expertise in
the academic area. Ibid.
Assessing a student's academic performance must be left to
the sound judgment of the individual academic institution. See
In re University of Med. & Dent., supra, 144 N.J. at 536. The
process of rendering an academic decision frequently involves a
subjective assessment of a student's ability to meet curriculum
standards. Those evaluations should be conducted in an academic,
rather than a legal, environment because such decisions do not
lend themselves to the traditional fact-finding process of civil
litigation.
We briefly comment on the cases relied upon by the trial court to support its finding that residents have a right to counsel at termination proceedings. Despite the trial court's findings, the cited authorities do not stand for the proposition that residents are entitled to an adversarial type of hearing prior to dismissal, but rather all that is required is a "fair procedure." Those cases place the responsibility on the institution to devise a system that provides the resident with adequate notice of the charges and a reasonable opportunity to be heard; formal proceedings involving trial-like procedures are not, however, required. See, e.g., Mauriello v. University of Med. & Dent., 781 F.2d 46, 52 (3d Cir.), cert. denied, 479 U.S. 8l8, l 07 S. Ct. 80, 93 L. Ed.2d 35 (1986) (holding resident not entitled to full adversary hearing, but requiring notice of deficiencies, opportunity to examine evidence, and opportunity to be heard); Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 369 (9th Cir. l976) (same); Ezekial v. Winkley, 572 P.2d 32, 39 (Cal. 1977) (refraining from requiring "formal proceedings" or "rigid procedure[s]").
The other staff-privileges cases, primarily relied on by plaintiff in support of the right to counsel and discovery,
recognize that those rights are founded upon the concept of
"fundamental fairness," arising out of a licensed physician's
dependence on staff privileges to earn a living and not based on
a constitutional right to due process of law. Garrow, supra, 79
N.J. at 566-68; Zoneraich, supra, 2l2 N.J. Super. at 9l. Those
cases do not, however, apply to the termination of a resident
from a private hospital program for academic reasons, but rather
concern the denial of staff membership or privileges to fully-licensed physicians.
In Garrow, supra, we addressed the right of a surgeon or
physician to counsel and discovery at an internal hearing
concerning a non-profit hospital's denial of the physician's
staff appointment. 79 N.J. at 549. We found that, although
constitutional due process was unavailable in the absence of a
showing that the hospital's action constituted state action,
principles of "fundamental fairness" required that the hospital
inform the physician of the specific charges and afford the
applicant the opportunity to appear and present evidence on his
or her own behalf. Id. at 564-65.
We also addressed an applicant-physician's right to counsel
during the hearing. Id. at 566. Although we recognized the
potential hazards in allowing the presence of counsel at such
hearings, we held, "[i]n view of the physician's substantial
interest in proceedings of this nature, . . . the physician
should have the right to have counsel present at mandated
hospital hearings with respect to his [or her] application for
admission to the staff." Ibid. (citations omitted).
In 1986, the Appellate Division revisited Garrow in an
appeal regarding a licensed physician's action against Overlook
Hospital for termination of her staff privileges. Relying on
Garrow, the Appellate Division held that "a physician is entitled
to fundamentally fair procedures in a non-profit hospital's
consideration of staff membership." Zoneraich, supra, 2l2 N.J.
Super. at 91. The panel, in compliance with Garrow, further held
that notice must be given by the hospital of any charges or
proposed action before the hearing and a qualified right to have
counsel present and engage in discovery of relevant materials
exists. Id. at 91.
Those cases, however, are clearly distinguishable from the
instant case because they did not concern academic judgment.
Here, plaintiff's dismissal from the Internal Medicine Residency
Program at Overlook Hospital only involved issues of academic and
medical judgment. The relief sought by plaintiff and granted by
the courts below would diminish the Program Director's ability to
exercise academic judgment and deny the Appeal Board the
opportunity to apply the procedures that it deems necessary to
attain appropriate levels of performance from its residents. As
such, Overlook's interest in academic freedom predominates
because the relief sought by plaintiff will result in an
"appreciable interference" with the Appeal Board's academic
judgment. Cf. In re University of Med. & Dent., l44 N.J. at 534.
A graduate or professional school is, after all,
the best judge of its students' academic
performance and their ability to master the
required curriculum. The presence of attorneys or
the imposition of rigid [procedural] rules . . .
would serve no useful purpose, notwithstanding
that the dismissal in question may be of permanent
duration.
[Board of Curators of the Univ. of Mo. v.
Horowitz,
435 U.S. 78, 85 n.2,
98 S. Ct. 948,
953 n.2,
55 L. Ed 2d l24, l32 n.2 (l978)
(quoting Greenhill v. Bailey, 5l
9 F.2d 5 (8th
Cir. l975)).]
If academic termination hearings are transformed into legal
proceedings that involve legal procedures, the academic hearing
would become an adversarial and litigious contest. The panel of
doctors would no longer be acting as academics reviewing medical
decisions, but rather as judges, ruling on legal issues that they
are not trained or qualified to evaluate. The procedure would
become complicated, legalistic, and time consuming and
expeditious review of academic judgments would be severely
hindered.
In addition, candid input and evaluations from attending
physicians and senior residents regarding the residents' academic
performance could be discouraged, raising a concern that
residents may escape critical review of poor academic and
practical performance. Those evaluations ensure that residents
are performing at acceptable levels of competency and
professionalism. Without such input, the integrity of the
program and the public interest is at stake.
As Justice O'Hern recognized in his concurrence in Dixon v.
Rutgers, The State Univ., ll
0 N.J. 432 (l988):
What we must avoid at all costs is the
pursuit of mediocrity that can result from
judicially supervised academic decisions.
Tenure and promotion processes invariably
involve the most solemn educational actions
of a university. Snitow v. Rutgers Univ.,
l03 N.J. ll6, l23 (l986). Courts that
recognize the qualified academic privilege
`seek to foster frank and candid evaluation
of candidates by their colleagues during
hiring and tenure review committee
deliberations.' R. Allen & C. Hazelwood,
`Preserving the Confidentiality of Internal
Corporate Investigations,' l
2 J. Corp.L. 355,
362 n.63 (l987). What they seek to avoid are
the vapid generalities and euphemisms that
supplant `telling it like it is.'
There may, however, be situations in which the employer's interest in academic freedom is outweighed by other considerations such as claims that the termination was motivated by reasons which violated the resident's Civil Rights. In such cases, the right to counsel at a resident's termination proceeding would be appropriate to vindicate those substantive rights and protect the public from discriminatory hiring and termination practices. This case, however, does not raise such concerns, as plaintiff has failed to demonstrate that the dismissal was motivated by bad faith or ill-will unrelated to academic performance.
We also recognize that the Accreditation Council for
Graduate Medical Education's current requirements for resident's
contracts includes procedures providing for the opportunity of
counsel in the event of a resident's termination. Those
guidelines, however, are intended only to provide "advice" to
institutions providing residency training, to resident
organizations, and to individual residents; they are not
mandatory. Furthermore, the record is devoid of any evidence
indicating that Overlook adopted those guidelines or made any
representations to plaintiff that the guidelines controlled in
the event of an academic termination.
Because of plaintiff's unique status as a doctor-in
training and considering the strong public policy of ensuring
that only qualified physicians serve the public, we find that
Overlook is qualified, both substantively and procedurally, to
pass judgment on whether plaintiff is fit to practice medicine in
its programs. To hold otherwise and not afford great deference
to a Program's expertise in this area would, in effect, threaten
the autonomy of such a programs to determine the academic
standards by which residents are to be educated, trained, and
judged.
Nevertheless, residents, like plaintiff, have an interest in
acquiring a medical license, other licensed residents have an
interest in becoming board certified in their specialty. All
residents have an interest in earning income, and preserving
their professional reputations. Those institutions must,
therefore, guarantee an academically terminated resident a "fair
procedure." Such "fair procedure" includes the right to adequate
notice of deficiencies, an opportunity to examine the evidence of
those deficiencies used by the hospital to make its academic
decision, and the right to present a case to the decision-making
authority. As in In re University of Medicine and Dentistry,
supra, 144 N.J. at 535, a resident also may bring a peer or other
physician, including a professor to the hearing. Such a person
could consult with the resident and provide a sympathetic ear
during the hearings. However, such a person could not act as an
adversarial advocate. Those mandates not only accord great
weight to the institution's judgment as to a resident's
competence, but also ensure that all of the relevant evidence is
considered and protect against the risk of arbitrary or
capricious decisionmaking.
Finally, the record clearly indicates that plaintiff was fully aware of Overlook's dissatisfaction with her academic performance and was afforded sufficient notice and an opportunity to be heard. Although we pass no judgment on whether plaintiff's dismissal was warranted, we are satisfied that the decision to dismiss plaintiff was carefully and deliberately rendered.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN and COLEMAN join in JUSTICE GARIBALDI'S opinion. JUSTICE POLLOCK filed a separate dissenting opinion in which JUSTICE HANDLER and JUSTICE STEIN join. SUPREME COURT OF NEW JERSEY
A- 114 September Term 1996
ALLYN HERNANDEZ, M.D.,
Plaintiff-Respondent,
v.
OVERLOOK HOSPITAL,
Defendant-Appellant.
POLLOCK, J., dissenting.
The majority acknowledges that in a proceeding to terminate
a medical resident from a residency for academic reasons a
private hospital must provide the resident with a fair procedure.
Ante at , slip op. at 18-19. According to the majority, the
resident's right to a fair hearing includes the right to
representation by a union representative, a peer, another
physician, or a professor. Ante at , slip op. at 10, 18-19.
Contrary to the rulings of the lower courts, however, the
majority denies the resident the right to representation by
counsel. I respectfully dissent.
In my opinion, it is fundamentally unfair to deny a medical
resident the right to counsel at a proceeding to terminate his or
her residency. Consistent with that conclusion, the Chancery
Division held "that a resident terminated from a private
hospital's residency program has the right to have counsel attend
and introduce evidence at a hospital hearing concerning the
resident's termination."
291 N.J. Super 462, 473 (1995). The
Chancery Division further held that Dr. Hernandez had the right
at her expense for a court reporter to record the hearing. Id.
at 477. The Appellate Division affirmed both holdings.
293 N.J.
Super 260 (1996).
In denying Dr. Hernandez the right to counsel, the majority
emphasizes that Overlook Hospital's decision to terminate her
residency involves only academic freedom. The majority also
emphasizes that the presence of a lawyer would unduly complicate
the conduct of the hearing. I disagree with both
characterizations.
Admittedly, a residency is a critical part of a doctor's
training. A residency, however, differs significantly from the
education that a medical student receives in medical school. In
the first two years of medical school, students generally attend
lectures as they would in other graduate schools. During the
last two years, the training is more clinical. Following
graduation, the ensuing residency is often described as "post-graduate training." Dr. Hernandez was a medical school graduate
to whom The New Jersey State Board of Medical Examiners had
issued a residency training permit.
As critical as a residency is to the training of a doctor,
it is not solely an academic exercise. Residents also care for
patients. Often they are the doctors present in the hospital
during evening hours, on weekends, and on holidays. In many
hospitals, they respond to patient emergencies such as cardiac
arrest, arrhythmia, and bleeding. On patients' charts, residents
sometimes change medication, make adjustments in intervenous
fluids, and enter other orders affecting patient care. Although
these entries are subject to review by an attending physician,
the review often occurs after the fact.
The majority points out that as a resident Dr. Hernandez
"could not admit or discharge patients, and could not prescribe
drugs for out-patients without the signature of a licensed
physician." Missing from that description is any acknowledgment
of the acts that Dr. Hernandez could perform. According to the
Board of Medical Examiner's letter that accompanied Dr.
Hernandez's permit, counter-signatures were not required for
"[p]rescriptions and orders written by a permit holder in the in-patient setting." As a resident, Dr. Hernandez supervised
interns, cared for patients, and made diagnoses.
To a patient or visitor at a hospital, a resident in his or
her white coat is indistinguishable from any other physician.
In sum, a resident is more than just a medical student. A
resident in a modern hospital is an integral part of the health-care team.
Overlook Hospital valued Dr. Hernandez's services
sufficiently to agree to pay her $35,000.00 per year, grant her
four weeks vacation, and provide her with professional liability
and life insurance. To characterize the termination of her
residency as involving only academic freedom is to distort
reality.
As the Chancery Division explained:
[T]he effect of a resident's termination from
a residency program [is] substantially
similar to that of a physician being
terminated from hospital staff. In both
cases the resident as well as the physician
have tarnished records affecting their
professional reputations. Such a termination
would indeed adversely impact on the
likelihood of the resident being accepted
into another residency program. This result
would prejudice the resident's right to
become licensed, board certified and practice
in his or her area of specialty. Similarly,
the prejudicial information on the
physician's record may result in his or her
denial of medical staff appointment at other
hospitals. Having found that the effect and
stigma of a resident being terminated from a
residency program is substantially the same
as a physician being terminated from hospital
staff, it follows that a resident should be
granted the same fundamental fairness at a
hospital hearing as is afforded a physician
in a termination proceeding.
Licensed physicians possess the right to counsel at hearings
to terminate their hospital privileges. Garrow v. Elizabeth Gen.
Hosp.& Dispensary,
79 N.J. 549, 566 (1979); Zoneraich v. Overlook
Hosp.,
212 N.J. Super 83, 91 (App. Div.), certif. denied,
107 N.J. 32 (1986). The critical question here is not whether a
residency is purely academic, but whether the academic aspect of
a residency so outweighs all other considerations that the
judiciary should deprive a medical resident of the right to
counsel at a hearing to terminate her residency.
The majority accepts the premise that a staff physician
enjoys the right to counsel at a hearing to terminate his or her
privileges. It fears, however, that by according the same right
to a resident, "[t]he procedure would become complicated,
legalistic, and time consuming and expeditious review of academic
judgments would be severely hindered." Ante at , slip op. at
16. Those fears are exaggerated.
The presence of counsel to review records, advise the
resident, and to present evidence need not unduly protract a
proceeding to terminate a resident. In the present case, for
example, the record reveals counsel's presence did nothing to
confirm the majority's fears. Dr. Hernandez's lawyer presented
no witnesses and did not cross-examine the hospital's witnesses.
His presence, however, assured her that the proceeding was fair,
an assurance that takes on added importance in view of the
Hospital's ultimate decision to terminate her residency.
The majority itself harbors misgivings about its result.
Without explanation, it recognizes that a resident would be
entitled to a right to counsel if the resident's termination were
"motivated by reasons which violated the resident's Civil Rights.
In such cases, the right to counsel at a resident's termination
proceeding would be appropriate to vindicate those substantive
rights and protect the public from discriminatory hiring and
termination practices." Ante at , slip op. at 17. Likewise,
a resident would be entitled to counsel if "the dismissal was
motivated by bad faith or ill-will unrelated to academic
performance." Ibid. I agree with those conclusions, but fail to
see how the presence of counsel at a proceeding to terminate a
residency for such reasons would be any less time-consuming or
complicated than a termination proceeding based on the resident's
performance. For some people, the right to work or to continue
in a profession is as important as a civil right.
The Accredition Council for Graduate Medical Education of
the American Medical Association has reached a similar
conclusion. It recommends that the Guidelines for Resident
Agreement or Contracts should provide for grievance procedures
that include "the right of the resident to counsel." If the
medical profession recognizes that residents are entitled to
counsel at termination proceedings, it ill behooves the highest
court of this State to reach a contrary conclusion.
The majority's calculus does not reveal any appreciation for
the inequality of the contest between a hospital and a resident.
The hospital has virtually limitless resources -- including
administrators, physicians, and lawyers -- at its disposal. The
resident stands alone. Many residents are burdened with debt and
other obligations. Their status in relationship to the hospital
is one of dependence, of an inferior to a superior authority.
Traditionally, courts try to assure a level playing field
for contestants in administrative and judicial proceedings.
Here, however, the majority is content to ignore the inequality
between the hospital and the resident. To achieve this untoward
result, the majority relies on exaggerated notions of academic
freedom and misplaced fears about the conduct of lawyers in such
proceedings.
I would affirm the judgment of the Appellate Division.
Justices Handler and Stein join in this opinion.
NO. A-114 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
ALLYN HERNANDEZ, M.D.,
Plaintiff-Respondent,
v.
OVERLOOK HOSPITAL,
Defendant-Appellant.
DECIDED April 30, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Pollock