Take these steps to cut liability risk
When staff act suspicious, take action
When an employee is reported to be acting suspiciously around partially clothed and/or semi-conscious patients, investigate and interview the patient and/or the employee reporting the suspicious actions, as well as the employee accused, experts suggest.
"Once you’re put on notice, you can’t ignore it," says Stephen Trosty, JD, MHA, CPHRM, director of risk management and continuing medical education at American Physicians Assurance Corp. in East Lansing, MI.
At HealthSouth Aurora (CO) Surgery Center, "We want to have a safe environment," says Rosalie Bodenhamer, MA/MSN, administrator. "If there are any reported problems, such as harassment or any inappropriate behavior, we follow through and correct it immediately."
Waldene K. Drake, RN, MBA, vice president of risk management at Cooperative of American Physicians-Mutual Protection Trust (CAP-MPT) in Los Angeles, says, "If serious enough, I would get the facility’s attorney involved to guide me." Interviewing the suspicious employee with the attorney may make the counseling session nondiscoverable, she adds.
If possible, determine if other employees have noticed inappropriate activity either at the time reported or in prior incidents, Trosty says. However, it is important to keep the employee’s name confidential, he says. If a patient is reported to have been involved, you may want to ask the patient whether he/she is concerned or whether anything inappropriate may have happened.
Depending upon the amount of verifying evidence you obtain, you may need to temporarily suspend an employee or move them into a position where they don’t have ready access to patients or where another employee is always in the room with them, he says.
However, there my be legal implications to removing the employee from duty if there is not sufficient evidence and it is a "she said/he said"-type of situation, Drake warns. "With the attorney’s guidance, I may even put a write-up about the incident in the employee’s file so I could prove that action/investigation was initiated should a further incident take place," she says. "It would provide a defense as well as grounds for disciplinary action or termination, if necessary in the future."
If the allegation proves to be true, you have an obligation to notify a professional’s licensing board, Trosty says. If major action is taken, such as an employee’s license being suspended or taken away, you are obligated to report that information to The National Practitioner Data Bank (www.npdb-hipdb.com), he emphasizes.
Consider these additional steps to avoid staff abuse of patients:
• Ensure your employees are legal citizens.
To avoid potential liability by employing someone who isn’t a legal U.S. citizen, you may want to ask all applicants if they are U.S. citizens, and if they aren’t, ask their status, advises Trosty. Avoid an appearance of discriminating against particularly individuals, such as persons of Latin extraction, he warns.
At Harmony Ambulatory Surgery Center in Fort Collins, CO, new employees must fill out an ID9 form for tax purposes their first day and provide appropriate documentation, says Rebecca R. Craig, RN, CNOR, CASC, administrator.
• Perform a credit check for business office applicants.
At HealthSouth Aurora (CO) Surgery Center, a credit check is performed for all people seeking positions as business staff or in any other positions that handle money, says Rosalie Bodenhamer, MA/MSN, administrator.
"It’s amazing that a lot of people do have credit problems," she says.
• Have procedures for employees to report unusual behavior of other staff.
The facility should have policies that make it easy for employees to report unusual or inappropriate behavior of other staff, says Drake. "This may be the facility’s only early warning,’" she says. "Small facilities, however, may be lax in this area, as it seems too time-intensive."
• Ensure professional employees maintain current licenses.
Ensure your professional employees maintain their current licenses, Drake says. "Don’t leave it up to the employees," she warns. "A facility needs a mechanism to check the licensing boards themselves."
Loss of a license may be an early warning of an employee problem, Drake adds.
• Take extra precaution with temporary employees.
At HealthSouth, all applicants for internal temporary positions undergo a criminal background check, just as applicants for full-time positions do, says Bodenhamer.
One of the best defenses for a surgery program is to have a contract with a temporary hiring agency that says that the agency has checked the employee’s licensure and references and, perhaps, even performed a background check prior to contracting out that employee to the facility, Drake says. "A background check would be good for temp employees as employees with problems may hide out’ by working through temp agencies — especially those that are not careful about references/history — rather than at hospitals/facilities with strong [human resources] policies, she says.
Regarding having an agency perform the background check, Trosty says, "Courts and others are saying that you can do that, but there is an obligation to make sure the agency is reputable and is following appropriate procedures."
When an outside agency performs background checks, review your contact to find out what specific information the agency will ask for, what information will result in a more in-depth examination, what sources the agency will use in its review (e.g., licensing boards, prior employers, and/or The National Practitioner Data Bank), and whether the search will include other states in an effort to identify individuals who might move from place to place because of past employment problems, Trosty says. "Make sure you’re comfortable it is adequate and sufficient," he says.