Surgeons as Educators A Guide for Academic Development and Teaching Excellence

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Due process in employment matters follows a fairly simple framework:

1. Notice of the charges (allegations, accusations) against you


2. An opportunity to be heard


3. A reasonable decision-making process

Within the structure of employment settings, progressive discipline is a com-
monly utilized construct to assure due process has been followed. Progressive dis-
cipline typically resembles a “stepwise” process such as a verbal warning, written
warning, and suspension prior to a termination action. These processes, while effec-
tive in many employment settings, generally are not effective in an academic setting
like residency training, which is better suited to the principles of assessment, feed-
back, learning, and performance.

Academic Law and Resident Due Process

Two Supreme Court decisions provide the context and framework for academic due
process, including the concept of a CCC.
University of Missouri v. Horowitz (1978) [ 55 ] Case Summary: Ms. Horowitz
excelled in her first 2 years of medical school but received criticism from the faculty
as she began her clinical rotations in years 3 and 4. She was provided feedback in her
rotational evaluations criticizing her attendance, slovenly appearance, hygiene, and
bedside manner. Despite feedback, Ms. Horowitz’s behavior did not improve. The
school’s faculty evaluation committee ultimately recommended her dismissal from
medical school. Ms. Horowitz appealed the dismissal decision to the Dean. The Dean
allowed Ms. Horowitz the opportunity to be evaluated by seven independent physi-
cians. At the conclusion of the rotations, the faculty provided feedback to the Dean of
varied opinion; three physicians said she was fine, three said she was deficient, and
one physician was indifferent. Based on the feedback of the independent faculty eval-
uators, the Dean upheld the dismissal decision. This case and the issue of academic
due process were ultimately argued in front of the Supreme Court of the United States.
The Court supported the University’s decision based on the following:

1. Ms. Horowitz was provided notice of her deficiencies through private verbal
   feedback and her rotational evaluations.


2. Ms. Horowitz was provided an opportunity to cure her deficiencies.


3. The decision was made carefully and deliberately. The regularly called meeting
   of the faculty, called for the purpose of evaluating academic performance, was
   noted as being a reasonable decision-making process consisting of faculty mem-
   bers, expected to evaluate student performance.

17 Optimizing Success for the Underperforming Resident