A chief resident did.

He reported the physician. The physician was suspended for five days for “unprofessional behavior.”

The physician has Tourette’s syndrome. He had not disclosed his condition to his colleagues or employer.

Was the hospital within its rights to take action?

First, and importantly, the hospital is not Nostradamus. It cannot presume there is a biological cause for what it labeled as unprofessional behavior. Still, a five-day suspension for an under-the-breath obscenity that the family/patient likely didn’t hear, seems unduly harsh. If physicians were routinely suspended for uttering an occasional obscenity, even in stressful and difficult circumstances, our work force would quickly thin.

Next, Tourette’s syndrome is a spectrum disorder. Each patient manifests symptoms differently.

Symptoms vary from person to person and can range from mild to severe. It’s not uncommon for symptoms to change frequency over short time periods or to disappear for extended time periods (wax and wane). Common motor tics include: eye blinking, head jerking and facial movements. Common vocal tics include: throat clearing, sniffing and tongue clicking.

Coprolalia is an extreme and rare case of Tourette often sensationalized by the media. It is the involuntary utterance of obscene and socially unacceptable words and phrases. It is relatively rare in individuals with Tourette (only 10% of those diagnosed have this symptom), is not required for diagnosis, and does not persist in many cases.

While a hospital may not want its staff occasionally uttering an obscenity, the legal calculus may change if Tourette’s is considered a disability covered by the Americans with Disabilities Act.

For the ADA to be triggered, the hiring entity must have 15 or more employees. And the basic definition of “disability” is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment.

Hospital and healthcare employers may try to terminate an employee with a disability arguing they pose a risk to patients. It’s hard to imagine how occasionally uttering an obscenity would pose a risk to patients. Even then, the analysis does not stop there. If the employer can reasonably accommodate the employee’s disability, they have an obligation to do so. Imagine a scenario where a physician is hearing impaired. The hospital might argue that without sufficient hearing, patients might be placed in harm’s way.  But with a specific accommodation, say a hearing aid, this physician hears reasonably well. In that situation, the employer cannot argue the employee physician is dangerous. With the hearing aid, he isn’t.

Here’s what Congress wrote:

42 U.S.C. §12182(b)(3) specifies that nothing requires an entity to permit an individual to participate in or benefit from the facilities of such entity where that individual poses a direct threat to the health or safety of others. That provision continues to say that the term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policy, practices, or procedures, or by the provision of auxiliary aids or services. Therefore, it is fair to say that congressional intent includes the safety of others as being necessary.

My friend, Bill Goren, is a nationally recognized disability lawyer. He has written about the standards that apply in fields such as healthcare:

[I]n the licensing field the “ability to practice safely,” arises frequently. This opinion emphatically says that the standard is direct threat and that any threat involving safety requirements must be legitimate safety requirements based upon actual risks and not upon stereotypes.

The Equal Employment Opportunity Commission writes about “direct threat” as follows.

An employer only may exclude an individual with a … disability from a job for safety reasons when the individual poses a direct threat. A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job. This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider:

• • • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur; and
    • the imminence of the potential harm.

The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.

With that as a backdrop, the Americans with Disabilities Act is not a get out of jail free card to avoid accountability for an employee’s actions. From an ADA lawsuit against a telephone carrier in 1998:

[In Hamilton] we held that an employer was not liable for firing a man with PTSD who had an angry and profane confrontation with his manager even though the episode was arguably caused by his condition. Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052–53 (5th Cir. 1998). Though his outburst was arguably caused by his PTSD, it also violated company policy. Id. at 1053. We went on to say that “the ADA does not insulate emotional or violent outbursts blamed on an impairment.” Id.

In another case from the Fifth Circuit:

Another is Seaman. That case involved an employee verbally abusing his supervisor for denying his vacation request. Seaman v. CSPH, Inc., 179 F.3d 297, 298–99 (5th Cir. 1999). The employee suffered from bipolar disorder, and when he was fired for insubordination, he sued. Id. at 298–99. In affirming summary judgment, we said that though the employee’s reaction could have been attributed to his bipolar disorder, he could “not use the ADA as an aegis and thus avoid accountability for his own actions.” Id. at 301.

In yet another case from the Fifth Circuit, an employee with history of sleepwalking had a problem while on a business trip. In the middle of the night, she entered a male co-worker’s room (adjacent to hers) just after midnight, uninvited and wearing only a robe, and got into his bed. She apparently was sleepwalking. She was fired. She sued.

The district court granted summary judgment for NextGen (the employer). The district court concluded that Harkey (the employee) could not establish a prima facie showing of disability discrimination because she “fail[ed] to meet the requirements of proving a disability” and that “she fail[ed] to show evidence that she was subject to an adverse employment decision because of her sleepwalking.” The district court further held that NextGen fired Harkey for “misconduct”—a legitimate, nondiscriminatory reason—and that Harkey could not demonstrate that this was pretext.

That Harkey’s “severe, unprofessional, [and] inappropriate” conduct was purportedly caused by her sleepwalking disorder is of no matter. The ADA does not give employees license to act with impunity. See Seaman, 179 F.3d at 300–01; Hamilton, 136 F.3d at 1052. When Harkey sleepwalked into her male coworker’s room in the state that she was in, NextGen had a reason to fire her. So, the ADA is no barrier to her termination. Harkey has not shown she was fired because she had a sleepwalking disorder. She was fired because of what she did when she was sleepwalking.

It’s a wide gulf between terminating a sleepwalking employee for unintentionally jumping into a married man’s bed on a business trip compared with uttering a coprolalic obscenity heard by almost no one. Regarding the opening vignette, will the ADA save the physician’s reputation and career? Maybe.

What do you think?

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.