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One potential liability risk for occupational health nurses involving weight reduction programs is malpractice lawsuits in the event that an employee suffers injury or death as a result of exercise.
"I have seen claims that health care professionals are liable for exercised-induced injury or death, or for not screening out unfit or medicated employees," reports John W. Robinson IV, an employment attorney at Tampa, FL-based Fowler White Boggs Banker. "I have had some death cases where exercise or nursing staff did not render proper first aid for a heart attack or stroke. Then there are the typical injuries due to falls, overexertion, or repetitive motion."
Having employees sign waivers or consent forms before they participate in wellness programs is a start, says Robinson. "But every malpractice suit against health care professionals or providers tries to get around these barriers, and many suits do so," he says. "Still, it's better than nothing."
If an occupational health professional was provided sufficient information about the physical requirements of a job and then certified an unfit person for duty, it is possible that a professional negligence claim could result, says employment attorney Robert J. Zech, of Seattle-based law firm Miller Nash LLP. However, if the occupational health nurse is employed by the same entity as the obese employee, they probably would be protected from liability by a workers' compensation statute.
"If fitness is a job requirement, then employers can and should take reasonable steps to hire fit employees and give them appropriate feedback if their level of fitness drops below that required for adequate work performance," advises Zech.
Documentation, or lack of documentation, is usually what makes the difference in lawsuits involving medical care. "With all the paperwork for their own medical care, juries have an unusually high expectation of good and contemporaneous treatment records," says Robinson. "Still, you find fewer cases against occupational health nurses than other professionals — probably because they have fewer asset and less insurance. They are not the 'deep pockets.'"
However, the individual could sue the nurse as a professional on her own license, and thus a malpractice or negligence claim could ensure, says Deborah V. DiBenedetto, BSN, MBA, RN, COHN-S/CM, ABDA, FAAOHN, president of Michigan-based DVD Associates, an occupational health/disability management consulting firm, and past president of the American Association of Occupational Health Nurses (AAOHN). Low-cost malpractice insurance is available from AAOHN and the Association of Occupational Health Professionals for members, she notes.
"It behooves the nurse to have her own malpractice policy to cover situations such as these," says DiBenedetto.
[Editor's note: For more information on liability risks for occupational health nurses, contact Deborah V. DiBenedetto, BSN, MBA, RN, COHN-S/CM, ABDA, FAAOHN, President, DVD Associates, 207 Parkshore Drive, Battle Creek, MI 49014. Phone: (269) 830-3063. Fax: (805) 522-7275. E-mail: Deborah.Dibenedetto@gmail.com. Web: www.DVDandHaag.com.]