A Skilled Surgeon Should Stay Out of the Forest

A Skilled Surgeon Should Stay Out of the Forest

A Skilled Surgeon Should Stay Out of the Forest

 

The temperature at dawn today was minus 18 degrees.  My day today is about bringing in more firewood, working on an online curriculum for a new course, and writing a blog or two. The pleasant thing about splitting or moving firewood is that I get into the flow of thinking.

Today’s thought: if you were allowed only one phone call (or text) would you choose to call a tree feller, a surgeon, a reasonable accommodation manager, or Saul?

Let’s start with a tree feller in New Hampshire. Often referred to as a “tree faller”, a feller/faller is a woodsman with expertise in harvesting trees. Tree harvesting is a major industry in New Hampshire with capital consequences for those not skilled in the discipline.

When a tree falls in the woods nobody worries much about nearby buildings because there aren’t any. But a professional feller’s pride focuses his mind: can I drop this tree exactly where I want it even though I am the only one who will know? Given the wind, the slope of the hill, and the lean of the tree, can I minimize damage to the tree so as to get maximum value out of this gift of nature?

When a feller is working in a small town like Keene, New Hampshire, the stakes are different and draw on a different set of this professional’s skills. Yes, people can be killed by a misjudged drop but, additionally, buildings can be damaged or destroyed. Take for example a 50 foot hardwood tree that has succumbed to climbing vines. Put that tree between a school for occupational therapists and physical therapists, a gymnastics school, a tennis club, and high voltage power lines. Put the power lines 25 feet from the tree. What would the professional feller do?

Next let’s look at another real-life situation. This one comes from Florida where Dr. Lianette Campos-Sackley applied for a position as a general medical practitioner. During her initial interview with the supervising surgeon, she notified him that she had epilepsy, which required her to not exceed an eight-hour work day.  Her prospective supervisor agreed to Dr. Campos-Sackley’s scheduling request and, after she interviewed with other members of the staff, she was ultimately hired. What should best practice require the supervisor to do at the conclusion of the interview?

In these two cases we have two competent individuals working at the edge of their expertise. The tree feller’s boundary is that space between the forest and the town line. The surgeon’s expertise is at the boundary of the interview room. (The surgeon-as-hiring authority must have the skills to determine whether an applicant is fully qualified for the position of general medical practitioner.)

The problem for each of these professionals begins at the border of proven skill and the ability to acknowledge it is time to call in another expert rather than reaching beyond proven skill.

In the case of the tree at the edge of the parking lot of my office, the feller decided to not get involved unless he could use a cherry picker to disassemble the tree. He was wise to know that his skill and tools worked best in the forest, not in town. (Thanks, for your wisdom Billy!)

The surgeon’s thought process went in a different direction. As soon as the new hire began working, he altered the pre-determined schedule and demanded Dr. Campos-Sackley work additional hours. Assuming that the request for accommodation during the interview carried over to the employment phase of their relationship, this action equated to a unilateral withdrawal of an agreed upon accommodation. Further, the longer work hours were cited as the cause of a rapid decline in her health. This situation now is headed to a constructive discharge and a violation of ADA Title I.

Under the umbrella of the interactive conversation, Dr. Campos-Sackley consulted with hospital management and renewed her request for a reasonable accommodation in the form of a modified work schedule, but the request was denied. Within a few days, Dr. Campos-Sackley was terminated, not just a constructive discharge but an actual adverse employment decision based on her disability.

The decision that should have been made by the supervising surgeon was to call in a reasonable accommodation manager with the skill necessary to manage the situation. At the very least the surgeon should have received training in how to recognize and triage a request for accommodation.

And what about calling the AMC’s mythical Saul Goodman, Esq.? Dr. Campos-Sackley’s situation continued to deteriorate after her request for accommodation was denied. The fact that the EEOC filed suit (EEOC v. Baptist Health South Florida, Case No. 1:13-cv-21411) in U.S. District Court for the Southern District of Florida, Miami Division, after attempting to reach a voluntary settlement through conciliation probably meant that one or two quiet options that should have been successful were not.

First, assuming a complaint was filed with the EEOC, assuming that an investigator was assigned to the complaint, and assuming the investigator sent a Request for Information to the surgery center or to its parent company, one of many possibilities occurred that caused the EEOC to continue to push the case. Typical of this turn of events is that an insufficient response to the RFI was supplied. This happens if the responding party (the employer) did not memorialize the Interactive Conversation and does not realize that their case is already lost.

The second possibility is that “Saul” was not experienced in employment law to the level required of this serious situation. If, and I have no knowledge of the details of this stage of the charge, legal counsel for the surgery center (1) responded but did not know the details of the case, (2) proceeded with a non-cooperative tone, or (3) lectured the EEOC investigator about employment law, the result was that the file was moved to mediation. One’s goal is to not get to mediation.

At mediation another series of events must have unfolded. Whatever those were, the charge resulted in filing of a suit. In this case, a long series of events had indeed unfolded. And each of these events may have been avoided if the wisdom of a tree feller could have been applied to each opportunity for resolution.

Save your practice from inadvertent violations of federal, and, in some cases, state employment discrimination law, register for our Defending Your ADA Title I Medical Examinations Course.

Roy Matheson

http://reasonableaccommodation.com/about/

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