What Rights Do Foreign Medical Students Have When Facing Termination in Their Medical Residency Programs?

Being accepted into a residency program is not an easy task and requires significant investments of time, hard work, and money. Being threatened with a warning, suspension, or termination can be shocking and damaging to one’s career. Facing these kinds of allegations can be incredibly overwhelming for a medical resident.

Entering U.S. Residency Programs

Physicians who have received medical degrees from medical schools outside of the United States that are not accredited by the Liaison Committee on Medical Education, the American Osteopathic Association, or another American accrediting body, are classified as international medical graduates (IMG). The physician’s citizenship does not determine this;

it is dependent on the medical school’s accreditation and location. Therefore, a U.S. citizen who graduated from a foreign medical school is an IMG, while a non-U.S. citizen who graduated from a medical school in the United States is not an IMG.

To enter the Accreditation Council for Graduate Medical Education (ACGME) residency program in this country, IMGs have to be certified by the Educational Commission for Foreign Medical Graduates (ECFMG) and take the U.S. Medical Licensing Examination (USMLE). Also, an IMG may start a graduate medical education program to be certified.

Once accepted, IMGs must continue to work hard to complete their programs.

Is it Easy for Foreign Medical Students to Transfer into American Medical Residency Programs?

It is not surprising that foreign medical students can face problems while transitioning into American medical residency programs. Meeting the rigorous academic standards and understanding all of the regulations can be quite difficult for medical students. Unfortunately, some students end up facing remediation or termination for alleged issues with performance, test scores, and other knowledge-based problems. These students may not be aware of what resources can help them or their due process rights.

What is Due Process?

Due process is the legal requirement that stipulates that a person who is deprived of an interest or liberty will be notified and offered the opportunity to present their side of the story.

When the student is accused of a minor infraction, they can try reaching out to a program director who might decide to use corrective measures without levying any penalties. In other cases, and when due process is not completed, foreign medical students may choose to pursue legal action. Since it is an academic setting, students may be able to argue that they were deprived from their liberty and property interests.

How can I Obtain Information on an Institution’s Policies?

Students can investigate their employment contract and their institution’s policies that apply to house staff discipline. The procedure manual can also provide good information about how things should be handled. Students normally receive a notice ahead of time about the disciplinary action, and an intermediary may be assigned to mediate between the student and the medical institution.

The majority of residency programs are accredited by the ACGME and follow their guidelines. These stipulate six core competencies for medical students:

- Medical knowledge
- Professionalism
- Patient care
- Systems-based practice
- Practice-based learning and improvement
- Communication and interpersonal skills

The guidelines also provide some due process rights for medical residents and fellows who face disciplinary actions. In essence, these residency programs should allow students to be heard. This is usually done in front of a panel of medical staff members who make determinations based on the core competencies. Afterwards, a decision can be made regarding whether or not the discipline is appropriate; the Chief Medical Officer or another administration member can then accept or reject the panel’s recommendation.

The procedure manual should explain how long the panel has to make its decision along with information about an appeal process. Students should not sign any documents given to them by the institution unless they have consulted with an experienced physician lawyer.

What Should I Do if I am Facing Suspension or Termination?

Suspension times can differ and will reflect the particular circumstances. Though suspension and termination decisions should be objective, this is not always the case. One resident who did something wrong might be suspended while one who committed the same act might not. This could be a result of a board member’s preference for one student, past history, or employment discrimination.

Some institutions permit residents to resign or withdraw voluntarily from their residency programs. This may allow the students to be accepted into different residency programs. The student will need to explain exactly why they want to resign and then apply for admission into another residency program. The old records will need to be submitted along with an explanation for the resignation and references.

Instead of resigning, students may decide to challenge a panel’s decision of a suspension, termination, or another disciplinary action. They are different ways that this is handled, including:

Arbitration: Many residency employment contracts bind the students to mandatory arbitration when legal concerns arise between them and the hospitals. This is because arbitration costs less, is held in private, court-like settings, and the parties may choose the time, place, and an arbitrator who acts as the judge. The results are not part of the public record, either. Arbitrations are faster, but arbitration decisions are binding and hard to appeal.

Complaints: Students may also try to file complaints with the ACGME if the institution is accredited by this agency. The ACGME has a Resident Services division, although this does not resolve disputes between students and their sponsoring institutions and fellowship or residency programs.

Lawsuits: Residents may be able to pursue lawsuits if they are terminated for illegal reasons. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on a person’s race, color, religion, gender, nationality, country of origin, or sexual orientation.

What Evidence Do I Have to Show to Pursue a Lawsuit?

There must be solid facts to support these types of lawsuits. For example, the resident can gather evidence to contradict a supervisor’s negative evaluations and testimony from physician supervisors who can attest that the resident’s work was satisfactory.

Another category for evidence is proof that other residents who had poor evaluations and unsatisfactory test scores were not disciplined. A resident who completed a residency program after leaving the hospital can also use this successful completion as evidence.

Is the COVID-19 Pandemic Affecting Guidelines?

The American Medical Association (AMA) supports IMG physicians and has issued guidelines for foreign medical students and physicians who are licensed or are seeking licensure. The AMA hopes to ensure that visa problems do not affect IMGs’ abilities to continue work. The AMA helped convince the U.S. Department of State to continue processing foreign-born medical professional visa applications at U.S. embassies and consulates.

In addition, the United States Medical Licensing Examination (USMLE) program has extended their eligibility period for examinees who hold scheduling permits. The new end date is December 2020. Examinees should receive notifications and updated scheduling permits after their extensions are processed. If a medical resident needs help, they should also contact an experienced physician lawyer.

---

---

ABOUT THE AUTHOR: Sidney L. Gold
Mr. Gold is the principal shareholder of the Pennsylvania & New Jersey employment law firm of Sidney L. Gold & Associates, P.C. in Philadelphia, which has been recognized by the Martindale-Hubbell Bar Register as a preeminent law firm in the field of employment law and civil rights litigation. His practice, as well as that of the law firm, is exclusively concentrated in the representation of both employees and employers in all aspects of employment related litigation in Pennsylvania and New Jersey, including claims under federal and state anti-discrimination laws and federal civil rights laws.

Copyright Sidney L. Gold & Associates, P.C.



Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.