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Here's expert advice on how to handle cases
Many outpatient surgery managers might think that the situation of a clinician sexually assaulting an incapacitated patient is so unlikely that they don't need to prepare for such an event. However, those managers would be mistaken, according to sources interviewed by Same-Day Surgery.
"I have been retained as an expert witness in a number of such cases involving anesthesiologists and other physicians, as well as employees in hospitals, surgery centers, and skilled nursing facilities," says Paul B. Hofmann, DrPH, FACHE, president of the Hofmann Healthcare Group in Moraga, CA, which consults on ethical issues in health care and specializes in performance improvement efforts.
Some of those cases have been publicized by the media recently:
A former plastic surgeon in Tracy, CA, admitted to sexually assaulting 36 female patients, including some who were anesthetized and one who was age 15.1 Peter Chi, 48, surrendered his medical license and will be sentenced to six years in prison.
In Chicago, the medical director of Grand Avenue Surgical Center in Chicago, Nercy Jafari, MD, was convicted of sexually abusing a patient and sentenced to 24 months of sex offender probation.2 When Jafari continued to practice, the state Department of Public Health moved to shut down the center, although the alleged incident took place at another location. According to information obtained by Same-Day Surgery, the center has appealed this ruling to the Cook County Circuit Court. Until the case is heard, the judge granted a temporary stay that allows the facility to remain open, but with the condition that Jafari has a female chaperone during examination and treatment of female patients. Jafari denied that he sexually abused a patient and said routine, normal, and medical necessary procedures can be perceived as sexual misconduct by a nonmedical person.2
When a clinician is accused of abusing a patient, the outpatient surgery manager needs to act quickly, sources advise. "It is not only possible, but it's absolutely imperative to stop any individual who is or may be sexually abusing others, particularly patients," Hofmann says. "Any excuse or rationalization for not doing so because of the person's professional position or organizational status is simply unacceptable."
Managers should put the clinician on administrative leave, advises Elizabeth G. Russell, JD, partner at Kreig DeVault in Indianapolis, IN. "Until they figure out what's going on, they need to relieve that person from continuing to practice at the surgery center," Russell says. If the person is on leave for longer than 90 days, then you have to report the incident to the National Practitioner Data Bank. "You want to do the investigating as quickly as you can, but obviously, the surgery center wants to protect itself," Russell says. "I wouldn't let a physician practice while the investigation is ongoing."
The alleged abuser should not be able to treat patients until the results of the investigation are evaluated, Hofmann says.
What's the next step?
When a clinical has been accused of sexually abusing a patient, inform the individual's chief of service, and obtain legal consultation "to ensure the rights of both the victim and the alleged abuser are recognized," Hofmann says.
Review the bylaws to identify the physician's right to due process, Russell says.
Talk to any witnesses as well as the patients, sources say. If a patient is upset, you might want to encourage them to undergo counseling, suggests Stephen Trosty, JD, MHA, CPHRM, ARM, president of Risk Management Consulting Corp., in Haslett, MI. Be straightforward and honest with patients, Trosty says. "My personal belief is that honesty and openness go further than if you think someone is trying to hide something," he says. If a patient demands that the clinician be suspended immediately, you can explain your processes, Trosty says. If that individual says he or she is going to the policy, try not to be obstructive, he advises. (See information on developing a policy and procedure, below.)
The investigation should be handled discreetly and privately, Trosty says. However, if the patient has reported the incident and given you permission to share his or her name, there shouldn't be any patient privacy issues. The HIPAA privacy rules says that "if it's part of the normal business of the healthcare operation, then you can discuss it with others who are appropriately involved," Trosty says.
If the clinician is under contract with the facility, examine the contract to see what it allows. If the clinician continues practicing during the investigation, considering having a staff member of the opposite sex in the room while the patient is incapacitated, sources advise. (For steps to take with applicants, see story, below. )
Regulatory Requirements: Sexual Assaults by Clinicians
The Joint Commission's Sentinel Event Policy addresses sexual assaults by clinicians by treating them as sentinel events. Sentinel events are events that require substantive analysis along with implementation of corrective actions to mitigate the risk of recurrence. This requirement also is referred to in the Leadership chapter for the ambulatory, office based surgery, and hospital programs in standard LD.04.04.05 which addresses an organization's approach to patient safety and how they are to respond to serious safety incidents.
A standard (RI.01.06.03) in the Joint Commission's Rights and Responsibilities of the Individual chapter of the ambulatory and hospital manuals states that the patient has the right to be free from neglect; exploitation; and verbal, mental, physical, and sexual abuse.
Standard EC.04.01.01 from the Joint Commission's Environment of Care chapter for all three accreditation programs requires the organization to have a process for monitoring, reporting, and investigating staff injuries and security incidents involving patients or staff, as well as others within the facilities. Standard EC.02.01.01 requires organizations to manage safety and security risks.
The Accreditation Association for Ambulatory Health Care (AAAHC) has a standard (7.II.A-6) that says elements of the safety program include physical injuries involving patients, staff, and all others.
Medicare §416.50(a)(3) standard states that for submission and investigation of grievances: The ASC must establish a grievance procedure for documenting the existence, submission, investigation, and disposition of a patient's written or verbal grievance to the ASC. The grievance process must specify timeframes for review of the grievance and the provisions of a response. The ASC, in responding to the grievance, must investigate all grievances made by a patient or the patient's representative regarding treatment or care that is (or fails to be) furnished. The ASC must document how the grievance was addressed, as well as provide the patient with written notice of its decision. The decision must contain the name of an ASC contact person, the steps taken to investigate the grievance, the results of the grievance process, and the date the grievance process was completed.
Medicare §416.50(a)(3) standard states that for submission and investigation of grievances: All alleged violations/grievances relating, but not limited to, mistreatment; neglect; or verbal, mental, sexual, or physical abuse must be fully documented. All allegations must be immediately reported to a person in authority in the ASC. Only substantiated allegations must be reported to the state authority or the local authority, or both.
Medicare §416.50(c) standard for privacy and safety states that the patient has the right to receive care in a safe setting, and be free from all forms of abuse or harassment.
Where to investigate a job applicant's history
Outpatient surgery patients are vulnerable, and it is up to the organization to allow only fully qualified clinicians who meet high professional standards and codes of conduct to practice there, says Paul B. Hofmann, DrPH, FACHE, president of the Hofmann Healthcare Group in Moraga, CA.
"Therefore, it is incumbent upon these organizations to exercise due diligence and be extremely thorough in the appointment and privileging process," Hofmann says.
If not, you might end up being accused of inadequate due diligence and/or negligent credentialing, he says. "Inadequate reference checks, insufficient investigation of previous claims, and incomplete peer review activities are representative examples of how the process can be flawed," Hofmann says. Consider these steps:
Appropriate verification of credentials is critical, says Stephen Trosty, JD, MHA, CPHRM, ARM, president of Risk Management Consulting Corp., in Haslett, MI. You can use an outside verification service to conduct this task, Trosty points out. "If there's no credentialing and no verification and no contract, you're really in a tough spot," he says.
Have clinicians sign a form that frees you from liability for performing reference checks, says Elizabeth G. Russell, JD, partner at Kreig DeVault in Indianapolis, IN. Follow up with facilities where they say privileges have been issued, she says.
Trosty says that when checking references, don't ask general questions such as "What do you think of this person?" Instead, he says, ask "Has there ever been a problem? Has there been any disciplinary action taken that you're aware of? Was this person ever referred to a disciplinary committee?"
You might not receive a direct response, "but if you read between the lines, you get an answer," Trosty says.
Check with state and national boards, databanks, and registries.
Check with the medical licensing board in the states where a person practiced previously to determine if any action was taken against them, such as having their license revoked or suspended, Trosty advises. Further investigation might be indicated, he says.
States are beginning to look at increased disclosure for clinicians and others. The Ambulatory Surgery Association of Illinois has proposed to the Illinois Department of Public Health that there be revisions to the application process and form for ASCs to require greater and more complete disclosure for owners, administrators, and physicians. The change would require greater and more complete disclosure of convictions, arrests, charges, denials or restrictions on past licenses, and any fines or actions by Medicare or Medicaid including those for sexual misconduct, child abuse, elder abuse, domestic violence, and substance abuse. It would affect initial and renewal licensing of ASCs.
Managers and administrators also should check with the National Practitioner Data Bank (NPDB) to determine if any action has been taken against a physician's privileges, Russell says. "That's a huge red flag," Russell says.
Also, some states allow criminal background checks, Trosty says.
Additionally, check pedophile registries to ensure your applicant hasn't abused children, he says. "Unfortunately, there have been instances where this has happened," Trosty says.
Develop a policy on crisis management
Address staff and strongly negative events
Have a policy and procedure that addresses investigations of employees and contracted staff for incidents of strongly negative events, says Stephen Trosty, JD, MHA, CPHRM, ARM, president of Risk Management Consulting Corp., in Haslett, MI.
The policy should address who will respond and what action will be taken, Trosty says.
Write your policy ahead of time, not after the fact, he says. "Let it be made known to all clinicians at the time they're hired or become part of the group so they're not taken by surprise," Trosty says.
Consider addressing inappropriate actions in your contracts with clinicians, Trosty says. For example, you might want to have language that says if a complaint is found to be legitimate, it could result in temporary suspension or a requirement that another professional of the opposite sex be in attendance, he says.