Surgeons as Educators A Guide for Academic Development and Teaching Excellence

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practical management, does not need to allow an individual an opportunity to
repeat bad behavior. This premise will be further deconstructed in this chapter as
we differentiate between academic and professional misconduct issues in
residency.
The “reasonable decision-making process” as we know it in residency educa-
tion is the CCC, that is, a regularly called meeting of the faculty for the purpose
of discussing student (resident/fellow) performance. In both Missouri v.
Horowitz (“Horowitz”) and Michigan v. Ewing (“Ewing”), the faculty evalua-
tion committee was identified as being a vital component of the “reasonable
decision-making process.” This structure of a faculty committee is the legal
construct supporting the importance of the CCC in today’s evaluation systems
in medicine and by the ACGME. The Ewing case further supported the idea that
a faculty decision-making committee rendering academic performance deci-
sions that are conscientious and made with careful deliberation (i.e., they are not
arbitrary or capricious) constitutes reasonable decision-making. When making
academic decisions regarding resident/fellow performance, promotion, or dis-
missal, the CCC provides the structure recognized by the highest court in aca-
demic cases.

Resident Misconduct

Prior to approaching an issue involving a problem resident, program directors
should pause and decide if the challenge is one of pure academic issues or of
behavioral misconduct. Issues that are academic in nature can be dealt with most
simply and directly by assuring the resident receives feedback (notice of deficien-
cies) and an opportunity to cure. Earlier in this chapter, we discussed the many
ways in which residents can be provided feedback that meet the framework of
academic law.
However, behavioral problems can be more difficult to navigate. When a poten-
tial behavioral issue arises with a resident, program directors should begin the pro-
cess by talking with the resident regarding the allegation made and providing the
resident with an opportunity to be heard  – to hear their side of the story. In most

Due process

Academic Misconduct

Notice

Opportunity to cure

Reasonable decision-making

Notice

Opportunity to be heard

Reasonable decision-making

17 Optimizing Success for the Underperforming Resident