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Hospital accommodated resident with Asperger's

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrelcovered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted Feb. 7, 2011.

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A federal appeals court has found that a hospital did not fail to accommodate a disabled medical resident who could not do essential functions of his job before firing him.

Experts say the decision is a reminder that, although federal law provides protections for employees with disabilities, accommodating such disabilities requires both parties -- the worker and the employer -- to collaborate in finding a reasonable solution.

Martin Jakubowski, who has Asperger's syndrome, sued Christ Hospital after he was fired in 2007, claiming that the Cincinnati facility failed to accommodate his disability in violation of the federal Americans with Disabilities Act, court records said. Jakubowski had difficulty with communication and organizational skills.

Although Jakubowski proposed certain accommodations to help him overcome his deficiencies, a panel of the 6th U.S. Circuit Court of Appeals found that they did not address what the hospital identified as core functions a medical resident must be able to perform -- in this case, communicating with colleagues and patients. Moreover, the hospital acted in good faith in trying to assist Jakubowski, including offering alternatives, the Dec. 8, 2010, opinion stated.

Judges rejected Jakubowski's request for a trial. His attorney did not return calls for comment, and it is unclear whether Jakubowski will appeal the ruling further. An attorney for Christ Hospital said he was unable to comment on the matter.

Jakubowski secured a residency at Christ in 2007 through the process for applicants who are unsuccessful in the Match program. The residency was his second after one at another hospital that also let him go, and he also trained at a supervised clinical training program at a New York medical college.

Jakubowski received negative evaluations of his communication skills and poor performance ratings. Both Jakubowski and his supervisors were unaware of his Asperger's.

At Christ Hospital, the resident scored well on medical knowledge tests, but supervisors observed that he was unable to keep up with patient loads, did not communicate well with nurses and colleagues and gave unclear, sometimes dangerous orders, according to court records. He never harmed a patient during his training.

Suspecting Asperger's syndrome, the director of the residency program referred Jakubowski for a psychological exam. According to court records, on Aug. 24, 2007, Jakubowski was told he failed his inpatient rotation and would have to repeat it. The next day, he was formally diagnosed with Asperger's, and in a separate communication -- before the hospital was informed of the diagnosis -- learned he would be terminated from his residency based on his poor performance and patient safety concerns.

The hospital also argued in court documents that Jakubowski's alleged concealment of his past failed programs justified his termination.

Jakubowski appealed the decision. He proposed that the hospital accommodate his disability and that his performance would improve if other physicians and staff were made aware of his condition and its symptoms and triggers. He agreed he would have to work on his communication skills but said he could do so on his own.

In a meeting to discuss the proposal, Christ Hospital said it did not have the resources to comply with Jakubowski's request and instead offered to help him find a residency in pathology, which required little patient interaction. Jakubowski disagreed with the proposal and sued after a hospital committee affirmed his termination.

In barring discrimination based on disability, the Americans with Disabilities Act requires employers to make reasonable accommodations, unless the accommodations pose an undue hardship on the employer.

But judges noted that it is up to the one with the disability to propose an accommodation and prove that it is reasonable. That person also must show that he or she is capable of doing the essential job requirements, with or without accommodation.

However, Jakubowski's proposal, which asked for "knowledge and understanding," lacked detail as to how he would accomplish the necessary communication improvements to do his job, the court said. "Because the accommodations -- that Jakubowski had the burden to propose -- do not address a key obstacle preventing him from performing a necessary function of a medical resident, he has not met his burden under the act of proving he is an otherwise qualified individual for the position."

A two-way street

The law also recognizes that, to determine what a reasonable accommodation may be, both parties may have to engage in an informal, good-faith interactive accommodation process, said Gregory W. Moore, chair of the health care practice group at Clark Hill PLC's Detroit area office.

That process involves analyzing the particular job duties at issue; determining an individual's specific performance limitations; and identifying effective accommodations that do not overburden the employer.

"That's really where it has to start and stop," Moore said. "There should always be a cooling-off period where the parties go through the interactive process, and the employee is not digging a bigger hole for himself."

In addition to back pay and other compensatory damages, ADA violations can carry penalties of punitive damages that are capped based on an employer's size, Moore noted.

In Jakubowski's case, because the hospital "considered his proposed accommodations, informed him why they were unreasonable, offered assistance in finding a new pathology residency, and never hindered the process along the way, we agree that there is no dispute that Christ Hospital participated in the interactive accommodation process in good faith," judges said.

Jakubowski contended, however, that because the hospital did not offer him a more detailed remediation program like one proposed to another resident with similar deficiencies, the facility did not act in good faith and failed to accommodate him. The earlier program had four months of clinical supervision and other training.

Seeking remediation

But it wasn't until after he sued that Jakubowski requested the option, the court noted. Judges also pointed to testimony by Christ Hospital doctors that such a program would take significant time and resources away from other educational and patient care activities, and require patient consent. It also failed to address the hospital's patient safety concerns, the facility argued.

An employer need not provide the precise accommodation requested by an employee, said health care and employment attorney Robert C. Ludolph.

Although the initial burden is on the individual to propose an accommodation plan, "a person may not know what may be reasonable, and the employer has a responsibility to provide some sort of alternative before abandoning the process," said Ludolph, of Pepper Hamilton LLP.

While not a requirement, the court noted that taking the extra step of proposing counteraccommodations may be additional evidence of good faith.

"But the employer doesn't have to go beyond and create a whole new job situation or different accommodations that are wholly unreasonable just because it might allow [an employee] to function," Ludolph said.

In refusing a particular accommodation, however, an employer must prove that it poses an undue hardship or financial burden, he said.

Patient safety issues also may be a factor. Ludolph pointed to an exception in the ADA whereby people posing a "direct threat" to themselves or others may not be considered disabled under the law.

Identifying accommodations for mental disabilities may prove more problematic than for physical disabilities, experts added.

When in doubt, and to further protect themselves from liability, legal observers recommend that physician employers get outside help and document the interactive accommodations process.

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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