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May 22, 2015

By Howard Mavity

Big law firms, accounting houses, and especially hospitals, have long prided themselves on requiring young professionals to work extraordinary hours, and perversely, young professionals wear their sleep deprivation as a badge of honor.

Their seniors reason that they put in such absurd hours, so why should the youngsters be any different. Why indeed?

Perhaps because fatigued professionals may make mistakes? Or because they burn out early and the employer’s investment in them is lost?

Making their case on social media

The safety concerns have arisen in numerous settings. Do you recall the outcry about the commuter aircraft crash involving sleep deprived pilots and the subsequent 2014 FAA rule changes? How about the D.C. and Chicago train operators who fell asleep? Will we learn that the recent Amtrak crash was related to operator fatigue?

The current generation is less willing to tolerate this scenario and will go to social media to make their case. Witness the recent south of the border phenomena in which exhausted health care employees are posting photos of sleeping professionals to make a point. It started with a blogger blasting a Mexican medical resident for sleeping while on duty:

In the blog post, the writer chastised the young resident, who reportedly fell asleep at 3 am doing paperwork, and posted a picture of her asleep on a desk.

“We are aware that this is a tiring job but doctors are obliged to do their work,” the blogger wrote. “There are dozens of patients in need of attention.”

Rather than be embarrassed, other medical professionals began posting photos of sleeping health care professionals in a sympathetic show of solidarity. These posts and tweets were accompanied by the hashtag #YoTambienMeDormi or to oversimplify, “me too!”

I’ve linked to a Buzzfeed article showcasing posts explaining that crashing after 36 or even 80 hours on duty does not mean that the professional is a slacker (see Doctors are posting pictures of themselves asleep to defend a resident caught sleeping)

Fatigued workers are a big concern

As you might imagine, even in countries with less ravenous plaintiff bars, these confessions have unnerved health care providers who know that, regardless of whether patients sympathize with the young doctors and nurses, they will now be suspicious of the care that they are receiving.

While an official campaign has not yet sprung forth in the U.S., the social media universe is slammed with sympathetic tweets and posts. Health care is a huge industry and this message strikes a sympathetic chord with workers ranging from housekeepers to resident physicians.

I’m going to go out on a limb and speculate that this movement will take off in the U.S. and have a more significant effect. Why?

First, fatigued workers and especially doctors are already a U.S. concern. As one of many examples, the esteemed JAMA Internal Medicine described a 2014 study, Time of Day and the Decision to Prescribe Antibiotics, in which doctors prescribed antibiotics far more often at the end of a shift than at the beginning:

The radical notion here is that doctors are people too,” said the lead author, Dr. Jeffrey A. Linder, an associate physician at Brigham and Women’s Hospital in Boston, “and we may be fatigued and make worse decisions toward the end of our clinic sessions.” (See The New York Times Well Blog.)

Unions are seizing these issues

Or go back to the 2006 Harvard Gazette article, Doctor Fatigue Hurting Patients. Read the first three sobering paragraphs:

Too many 24-hour shifts worked by hospital interns cause medical mistakes that harm and may even kill patients, according to a new Harvard Medical School study. Doctors in training who fall asleep during surgery or while examining patients make four times more errors that cause deaths than their better-rested colleagues, the research reveals.

Young doctors also suffer from their mistakes with emotional problems that can haunt them for years. They admit that their distress includes fear, guilt, anger, humiliation, and decreased compassion. What’s more, the distress coupled with reduced empathy can increase the odds of more medical errors and even alcohol and drug abuse.

“The evidence demonstrates that academic medicine is failing both doctors and patients by routinely requiring exhausted doctors to work marathon shifts,” says Charles Czeisler, Baldino Professor of Sleep Medicine. “The human brain simply does not perform reliably for 24 consecutive hours without sleep.”

The second reason for my prediction is that unions and other third parties are seizing such issues, such as the union push to unionize graduate assistants or recent efforts to embarrass fast food restaurants using safety issues.

You don’t want to make things worse

And many health care employers are going to exacerbate the situation by imposing draconian rules prohibiting sharing photographs or making any disparaging comments about the hospital. While such rules would seem to be an appropriate effort to protect an employer’s image, the National Labor Relations Board has struck down scores of such rules as chilling employer National Labor Relations Act Section 7 free speech rights.

A union or other third party will not only attack the employer for the hours worked, but for allegedly trying to trammel employees’ rights.

Our advice? Proactively evaluate the scheduling issues and deal with even long-held traditions. Review your rules and be tactical in your responses to employee statements in social media.

This was originally published on Fisher & Phillips’ Workplace Safety and Health Law Blog.