Protect Your Hospital from Liability

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Protect Patients from Internal Predators and Protect Your Hospital from Liability

Your hospital probably has procedures in place to shield patients and staff from external predators, but does it have similar procedures to deal with employees who engage in improper conduct? Create or, if you already have them, review and consider updating those procedures now.

Not only will doing so better protect patients and staff, it will help protect your hospital from legal liability, investigations and bad publicity.

The need to address this issue is underscored by the trial by fire that 1,000-bed Johns Hopkins Hospital in Baltimore is currently undergoing. The hospital discovered that one of its OB/GYN physicians secretly photographed his examinations of patients using a camera pen he wore around his neck, the hospital says in a statement.

The hospital suspended the physician, Dr. Nikita Levy, from further access to patients on Feb. 5, the day after he was interviewed by security following concerns reported to hospital administration by an employee. His employment was terminated on Feb. 8. On Feb. 18, the hospital learned that Levy committed suicide.

Johns Hopkins is already facing civil action. In addition, the case has been widely reported nationwide.

“The litigation process will have to run its course,” a spokesperson for Johns Hopkins says, adding, “It’s important to remember that Hopkins made free counseling services available to Dr. Levy’s patients immediately, and we continue to do so. Hopkins has also worked with his patients to make sure that their medical needs are being met. We have been cooperating fully with the investigation and all regulatory bodies.”

“It may be tempting to dismiss this event as an ‘aberration,’“ says health care attorney William Sarraille with the law firm Sidley Austin in Washington, D.C. “But the reality is that intentional privacy and security breaches by workforce personnel driven by idle curiosity, or wanting to learn the ‘dirt’ on neighbors, co-workers, celebrities, are becoming all too common. The fallout from these events can include HIPAA civil monetary penalties, privacy tort claims, including punitive damages, and very messy (and public) employment terminations.”

Environment of Care Leader spoke with security professionals about best practices your hospital can implement to minimize the risk of violence, unwanted sexual acts or invasions of privacy from internal predators. In the next issue of ECL, learn how to react when, despite your best efforts, such occurrences do happen.

Best practices to minimize incidents

Among the steps your hospital should already be taking are:

Insist on specific information from past employers when conducting background checks. Do not settle for a statement from a prospective employee’s past employer that it provides only dates of hire and termination, says Steven Millwee, president and CEO of SecurTest in Athens, Ga. and a past president of ASIS International. Include, with your background reference check, a release signed by the prospective employee, demanding specific history of workplace violence or other objective bad behaviors that reflect on the prospective employee’s fitness and integrity. The release, in the form of a demand that holds the former employer harmless, gives the former employer “a critical reason to respond, while mitigating claims of slander or libel,” Millwee says. “The [former employer] is in the position where, when it has real-world experience about the candidate who made threats or acted violently during [his or her] employment, is encouraged to give a full reference or face negligent reference claims.” Presented with such a letter, a past employer who does not release information about past aberrant behavior is “sitting on a ticking time bomb under the false assumption that this person will never act violently in the future, exposing the former employer to future litigation for failure to warn.”

Re-check employee history annually after an employee is hired. An employee may not have had a criminal conviction at the time he or she was hired, but could have received once since then, says Millwee. At a minimum, consider doing this with high-risk employees, such as those who operate motor vehicles. Example: An employee is hired as a hospital shuttle driver, but one year later is convicted of driving while intoxicated. Some SecurTest clients ask for these updated background checks every 90 days and then again on the employees’ anniversary date, Millwee says. “A full-back- ground check should always be completed before giving employees access to patients or coworkers.”

Put expectations in writing and require that employees sign. “The hospital should require that all staff, volunteers, physicians, independent practitioners and contractors sign a detailed agreement regarding acceptable conduct/behavior expected while in the performance of their duties/services for the hospital,” says Lisa Pryse, president of the International Association for Healthcare Security and Safety (IAHSS), and division president for healthcare at Old Dominion Security Company in Richmond, Va.

Train all employees, including clinical, to report inappropriate behavior. “Education is big, big, big,” says Marilyn Hollier, director of security and entrance services at the 980-bed University of Michigan Health System in Ann Arbor, and IAHSS president-elect. If employees are uncomfortable going to Security because they are concerned about repercussions, make sure there is a compliance hotline for them to use, she says, adding these hotlines can be particularly helpful when there is a problem in a doctor/nurse relationship. – Robert Sperber (sperber1@aol.com)