Contract language might help avoid diversion liability
Carefully constructed contract language might help shift some liability to the staffing agency when contracted employees divert drugs or otherwise harm patients, says R. Stephen Trosty, JD, MHA, CPHRM, president of Risk Management Consulting in Haslett, MI, and a past president of the American Society for Healthcare Risk Management in Chicago.
Trosty suggests that the contract should include these points:
• It is the responsibility of the contractor agency to do vesting of employees.
• The agency must adhere to the usual and customary standards for vetting.
• The agency indemnifies the hospital for any and all actions or lack of actions taken by employee that results in liability or an allegation of malpractice.
• Any money paid out by hospital in a settlement or litigation arising from such acts or lack of action shall be reimbursed to the hospital.
• The agency shall pay for the defense of employee in any legal action or reimburse the hospital for said expense.
The hospital also can require that certain policies and procedure will be followed in vetting employees, and these will be jointly agreed to by the hospital and the contractor, although the contractor can adhere to a more intense or demanding set of vetting standards.
"There also could be some consideration given to idea of having employees bonded, but I do not know how this would be received. However, it could help in this type of instance," Trosty says. "It also could be another way of allowing hospital and contractor to learn if is a problem with an employee if he or she cannot be employee bonded. This could be a red flag that a problem exists with this employee that did not allow them to be bonded."
