QUESTION:        Our state law says that employers may not make hiring decisions based on criminal convictions unrelated to the employee’s suitability for a particular job. What makes a person suitable for practicing medicine?

ANSWER:        There is not a single, fully-accepted answer to your question. Accordingly, in order to comply with your state law, you will have to use your professional judgment to define the types of crimes that are related to practicing medicine.

At least one court has held that conviction of any felony is a legitimate consideration when looking at the qualifications of a physician for Medical Staff appointment or clinical privileges (See Bouquett v. St. Elizabeth Corp. (Ohio 1989), holding that the “best interest of patient care encompasses more than technical skills and professional competence. It includes the perceived integrity of the physician which becomes suspect after he has been convicted of a felony.”) But, that case was not decided recently and with the passage of time may have lost a bit of its persuasive authority, especially since the modern trend is to more significantly limit the consideration of criminal background.

A number of health care organizations have begun to think through the issue of job?related crimes – and, in assisting them, we have come up with a short list of criminal activity that is pretty obviously related to the practice of medicine:

• crimes related to violation of the state’s medical practice statute
• crimes related to possession or distribution of controlled substances
• insurance or health care fraud and abuse
• violence
• sexual assault
• abuse of a member of a vulnerable population (child abuse, elder abuse, etc.)

Some employers choose to limit consideration of criminal activity temporally (a practice that is strongly encouraged by the EEOC). For example, you may choose to consider only those crimes occurring in “the past 7 years” or “since the commencement of medical training.” Of course, you should work with your counsel to ensure that any time frame you choose is consistent with your state’s laws.

Finally, also consider incorporating mitigating factors into any examination of an applicant’s criminal background. For example, while a conviction or plea of guilty or no contest might result in automatic elimination from consideration with respect to some crimes, for other crimes, you might examine the circumstances of the crime on a case-by-case basis, along with the following factors:

• The nature of the conviction
• How closely the actions of the applicant, with respect to the crime, bear on his or her ability to safely practice medicine
• The time elapsed since the conviction
• The applicant’s age at the time of conviction
• Evidence that the applicant has rehabilitated himself or herself
• Evidence that the applicant has been practicing medicine since the conviction, without additional incident

For more details on employment trends affecting physician employment and hospital?physician relations, please join us January 15-17 for the Institute on Employed Physicians and Their Impact on the Medical Staff. We will discuss criminal background checks, the EEOC’s guidance on how to lawfully consider criminal background during the hiring process, and many other interesting issues. Consult the brochure for more information about the program.