In a bunch of recent posts (here, here, and here), I’ve been piling on employment-at-will, mostly from the perspective of the aggrieved employee. Employment-at-will, I’ve argued, has problematic consequences for employees who are terminated at will, without cause. Terminations-without-cause incentivize arbitrary, unaccountable exercises of power in the labor market of the sort aptly described as “dominations” by Philip Pettit in his account of republican freedom.

There is, however, an equally bad consequence worth highlighting. As suggested in a previous post, employers will often resort to at-will terminations even in cases where they have a very good reason to terminate. The reason is simple: if you have unaccountable power, it becomes a habit to use it unaccountably. Reason-giving incentivizes accountability. Hence reasons themselves become the enemy: best not to give any. Contrary to a great deal of pro-business rhetoric, corporate leadership often hates accountability. So it becomes natural to them to insulate themselves from it. Since at-will power allows this, the exercise of at-will power becomes an addiction.

The result, however, is that employees who commit serious infractions are terminated without anyone’s identifying the reason why. They then walk off the job free to give future employers the impression that they were merely laid off, not fired for cause. And strictly speaking, they’re right. Practically speaking if a letter of termination doesn’t identify a cause, there isn’t one. One form of unaccountability then comes to facilitate another: The terminating employer doesn’t want to give a reason for the termination, so he fires at will. The terminated employee doesn’t want to give a reason for the termination, so she cites the termination-at-will to suggest that there wasn’t one. If the employee was terminated for some serious malfeasance, she is free to continue what she started.

In some contexts, even a very limited degree of candor can be self-undermining: the suspicion that you’ve been fired for cause can lead a would-be employer to suspect the worse and decline to hire. But the employment market is highly context-variable. In other contexts, for instance where demand for a certain kind of practitioner is high (and the practitioner is a good bargainer), the reverse happens: since no cause was identified, none is thought to exist. So the applicant is hired, only to continue the same malfeasances at the new job that had gotten them terminated at the old. Once they’re caught engaging in those malfeasances at the new job (if they are), they’re once again terminated at will, only to repeat the process indefinitely until a catastrophic event takes place that no one can ignore.

Consider a case of the catastrophic sort. Back in July 2020, a woman named Estefania Mesa underwent a Caesarian section in the operating room at Hoboken University Medical Center (HUMC) in Hoboken, New Jersey. During the procedure, Mesa had a heart attack and went into cardiac arrest as a result of errors in the administration of her anesthesia. The OR medical team failed for eleven minutes to take appropriate action. The predictable and avoidable result was hypoxic brain injury and permanent brain damage. Mesa’s child was born, apparently without ill effects, but Mesa herself remains immobile and non-verbal in a rehabilitation facility. It’s unlikely she will ever recover.

Mesa’s family recently settled a medical malpractice suit over the case for $11.9 million.

Per the settlement, CarePoint Health [of which HUMC is a part] is responsible for $10 million, Dr. Selvia Zaklama is responsible for $900,000, and Zaklama’s then-employer Hudson Anesthesiology Services will handle the remaining $1 million.”

How did this happen? Was it a one-off or something more systemic?

The now-settled litigation paints the incident as more than a matter of poor judgment, but rather a systemic failure to provide quality patient care.

Zaklama should never have been working at the hospital, the litigation alleged, blaming a “faulty credentialing process” for allowing her in the door, where she then proceeded to accrue dozens of complaints from colleagues and patients about her bully-like communication methods.

The New Jersey health care scene is both a big world and a small one. Once you find your way in, you end up knowing someone who knows someone who knows the subject of any given health care story in the news. By pure chance, just as I encountered this article, I had a series of conversations with some of Zaklama’s colleagues, physicians who’d known her from working with her at a different hospital.

None of the physicians I talked to have any connection to the HUMC malpractice case, and none stand in any way to gain from it, or from anything they said. All of them, however, confirmed the judgments just quoted: Zaklama, they insisted, was arrogant and incompetent; accrued dozens of complaints from colleagues and patients; and somehow managed to bully her way through all attempts at accountability. So the plaintiff’s complaints are not just a matter of clever lawyering. They appear to be true.

What happened to Zaklama at her previous hospital?, I asked my interlocutors. Well, I was told, having discovered serious malfeasance on Zaklama’s part, the hospital demanded her resignation. She resigned.

But what about the underlying cause of the problem? I asked. Zaklama’s incompetence wasn’t just an inconvenience, but a positive danger to the public. What was done about that? Answer: the causes for Zaklama’s termination ceased to be causes once Zaklama left the premises of the hospital in question. Once she did, she became someone else’s problem. Someone else’s problem = not a problem. Caveat emptor.

This is, I admit, not precisely an at-will termination: Zaklama was forced to resign at will rather than terminated at will. But it amounts in practical terms to the same thing. As with an at-will termination, Zaklama was forced to resign without anyone’s having to take responsibility for the reason why she was terminated. No such reason ever became part of any written record. She was then free to go to the next hospital to continue the same pattern of behavior somewhere else. Who knows the full extent of what she did, and with what effects?

Eventually, decades down the line, Zaklama’s incompetence and recklessness led to a case with an outcome so egregious that it couldn’t be ignored. But it’s unlikely that Estefania Mesa was the only casaulty in the overall sequence. It’s very possible that Selvia Zaklama’s career is littered with unknown casualties. What made that possible was our national allergy to for-cause terminations.

The Zaklama case is hardly unique in this respect, and hers is hardly the only pattern that unaccountability can take in a medical (or more generally, business) context. One of my physician interlocutors told me about a case in which a surgeon tasked with removing a cancerous lung from a patient’s chest ended up removing the wrong one. That is, the surgeon mistakenly removed the patient’s only healthy lung, leaving her with the cancerous one. That meant leaving the patient without any functioning lungs at all. When questioned how he could possibly have made this mistake, the surgeon argued that he removed the healthy lung because he feared that the cancer of the cancerous lung might spread to it. Pause. Laughter. Was he fired for that? No. Why not? He just wasn’t. Was anyone fired for not firing him? No. Why would they be?

If you spend as much time as I have among ideologues of American capitalism, you’ll doubtless have encountered the sort of person who likes to insist that the business world is a domain of hard-nosed, clear-eyed accountability as contrasted with the soft-headed mushiness of, say, the humanities division of the average liberal arts college or university. In the business world, as opposed to, say, higher education (we’re told), merit is clearly-defined and rewarded; productivity metrics are equally well-defined and non-productivity penalized. The discipline of the market ensures that no one slacks for long, and ensures that no one does a shoddy job without scrutiny by some merit-focused, productivity-driven supervisor. If only everything was run like a business! If only everything was run by business!

These claims collide with a single undeniable fact: if you can fire anyone for any reason or none, nothing stops you from firing them without citing a reason whether you have one or not. The resulting lack of accountability is a fertile breeding ground for every variety of abuse. Contrary to the claims of its propagandists, what standard business practice actually incentivizes is the counter-causal thinking that arises when powerful people are granted immunity from the consequences of their actions and from rational scrutiny. Only magical thinking would induce someone to believe that a reckless or incompetent physician ceases to be a danger because she’s practicing medicine over there rather than over here. But when lack of accountability prevails, so does magical thinking. Divorced from accountability, the profit motive may or may not be the root of all evil, but it definitely isn’t the root of all good. The world is littered with its victims. They may not always be visible or audible, but that’s because some of them can neither move nor speak.

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Many thanks to my anonymous physician interlocutors for their valuable insider knowledge of this and many other cases.