Could EDs be sued for requiring staff to work during disasters?
Could EDs be sued for requiring staff to work during disasters?
Follow policies and plan for fewer workers
More than half of nurses surveyed in a San Francisco hospital said they would not report for work if a influenza pandemic hit, and nearly half said they wouldn't report following a denotation of a radioactive bomb or during a smallpox attack.1
ED directors should plan on a 30% absentee rate in the aftermath of a disaster, says Amy Kaji, MD, director of the Disaster Resource Center and assistant professor of clinical medicine at the David Geffen School of Medicine at University of California-Los Angeles. "I don't think that legal binding actions would be effective," she says.
In Los Angeles, all county employees are required to work, by contract, during a disaster. "However, how this would actually be enforced is unknown," says Kaji. "I do not know of any legal case precedent mandating emergency physicians to show up to work."
What is the potential liability exposure to the ED if staff are required to put themselves in harm's way or neglect family responsibilities during disasters?
For the most part, if your personnel policies are drafted well and you follow them, you should not have liability worries, says Robert W. Markette, Jr., CHC, a health care attorney with Indianapolis-based Gilliland & Markette. He refers to wrongful termination lawsuits that arose after the Three Mile Island disaster, involving four employees who failed to report to work at a large hospital and were fired as a result. "They appealed and litigation was involved, but the hospital won all four cases," says Markette. "The hospital's policies were clear, they chose not to come back, and the employer was vindicated."
If staff are called in during a disaster, this differs from a normal standard commute. Therefore, if an injury occurs during hazardous driving conditions on the way to work during a blizzard or hurricane, it could result in a worker's compensation claimbut not general liability, says Markette.
However, if driving conditions were bad enough that the employee felt his or her life was at risk, chose not to report to work, and was terminated as a result, that might be a case in which an arbitrator might decide the ED should have given a written warning instead, says Markette.
Regarding caring for patients during a smallpox outbreak, Markette says that the ED employee actually might have a weaker argument, since that's the kind of thing that society expects health care workers to do.
"There is some argument from the employer's perspective, and the courts might follow as well, that you became a nurse or a doctor and knew that exposure to infectious diseases is part of the job," he says. "If you can walk out because you think there is a risk, where does that line end? If that were the case, any time the ED fired someone for not coming to work, that employee could claim they didn't feel safe."
However, if the ED is not following policies and procedures to protect staff, the employee might have a more solid argument. "Anything can happen in a courtroom," says Markette. "But if there is a national emergency and the ED says, get in here, we need you, and they don't come in out of fear, I would be surprised to see the employer lose that case."
Tension is particularly pronounced when ED personnel are under work orders to report and there are safety concerns for staff or their families, says John W. Robinson, IV, a shareholder in the litigation department in the Tampa, FL, office of Fowler White Boggs Banker. "It is probably best to make it a written job requirement that ED personnel will work during disasters," says Robinson. "If personnel refuse to work, you can then treat the absence as job abandonment or terminate."
He points to recent cases of employees suing for wrongful termination after they were fired for failing to report during a disaster. The cases involved a Florida nursing home employee who failed to report to work after a mandatory evacuation order for severe fires, and a Mississippi phlebotomist who failed to report to work during a mandatory evacuation order during Hurricane Ivan.2,3
"Both cases did not even get to juries the judges threw out the cases," says Robinson. "I am not aware of any emergency room cases, but the same logic should apply."
References
1. Anderson K, Dahl C, DeBaun B. Are all disasters created equal? A survey of nurse's ability and willingness to work during a healthcare crisis. Am J Infect Control 2007;35:E45-E46.
2. Gillyard v. Delta Health Croup, Inc., 757 So. 2d 601 (Fla. 5th DCA 2000).
3. Howard v. Hancock Medical Center, 2006 WL 3487109 (S.D. Miss. Dec. 1, 2006).
Sources
For more information, contact:
- Amy Kaji, MD, David Geffen School of Medicine at University of California-Los Angeles, Box 951768, 1000 W Carson St., Box 21, Torrance, CA 90509. E-mail: [email protected]
- Robert W. Markette, Jr., CHC, Gilliland & Markette LLP, 3905 Vincennes Road, Suite 204, Indianapolis, IN 46268. Phone: (317) 704-2400. Fax: (317) 704-2410. E-mail: [email protected]
- John W. Robinson IV, Shareholder, Litigation Department, Fowler White Boggs Banker, 501 East Kennedy Blvd., Suite 1700, Tampa, FL 33602. Phone: (813) 222-1118. Fax: (813) 229-8313. E-mail: [email protected]
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