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Are you liable if your staff abuse a patient?
Case alleges improper employee behavior
Denver Health Medical Center is being sued by a patient who claims that two hospital workers took a photograph of his genitals while he lay unconscious in their ED last February. Could a hospital be held liable for such accusations?
"The hospital is only liable if they negligently hired or credentialed somebody who shouldn’t have been hired," argues Andrew S. Kaufman, JD, a partner in the New York City law firm of Kaufman Borgeest & Ryan.
"It is also automatically liable if the action that took place was within the scope of the employee’s employment," he says.
In a case like this, Kaufman notes, the plaintiff likely would argue that anything a hospital employee does while on the job is within the scope of his or her employment, "but the reality is you should be liable only if the patient is injured due to medical negligence," he adds.
"While these types of lawsuits involving EDs are pretty rare," it is common policy in hospitals to have a patient who is being examined by a member of the opposite sex to have a chaperone of the same sex present in the room, Kaufman says.
If there is an intentional tort, such as an assault or sexual misconduct, there is no medical purpose to the act, he continues. "If a plastic surgeon takes a photo to document a female patient’s breasts and then fondles them, the act is probably within the scope of employment, but if this ED patient’s injury was not to his genitals, it’s a lot tougher argument," he says.
In the Denver case, the patient had a cracked skull, which was the result of a mugging.
The bottom line, Kaufman explains, is that the hospital’s defense is it didn’t have any notice these people would do something like this, despite the fact that it did a background check, and there is no way to foresee or prevent someone from committing such an assault.
The hospital has investigated the allegations, and two employees who have been accused of using the camera are no longer working for Denver Health, according to a hospital spokesperson.1
There are questions ED managers should ask themselves, such as, "How closely do we watch these people who can be alone with a vulnerable patient?" says Grena Porto, RN, ARM, DFASHRM, a health care risk manager and principal with QRS Healthcare Consulting in Hockessin, DE, and past president of the Chicago-based American Society for Healthcare Risk Management.
"Of course, you should do diligent checks on your folks when you hire them and keep an ongoing eye on them," advises Porto, adding that this is not just the responsibility of the ED manager. Staff should be on the alert for warning signs, such as patient complaints or a staff member doing something that seems even a bit "off," she says. "Everyone has to be sensitive to these subtle changes."
In addition, Porto asserts, the very nature of the ED can lead to a general letting down of your guard when it comes to patient privacy. "Everybody in there is seriously wounded, and privacy is the last thing on peoples’ minds," she says. "You have to constantly refresh that duty to sensitivity: No matter if the patient is unconscious, wounded, or near death, you need to do whatever you can do to preserve their dignity."
Periodic inservice sessions can help remind staff of that duty, Porto explains. "And general vigilance also will help," she adds. "Don’t be reluctant to ask why a curtain is not drawn or why a patient is not covered."
If any problems do come to your attention, react swiftly and decisively, Porto advises. For example, she notes, in the Denver case, it came to light that the hospital had recently fired five paramedics and disciplined 12 others for harassing or bullying patients in unrelated cases. "Obviously, the hospital acted and did the right thing. It sounds like they were vigilant and took action."
1. Hospital sued over photos of man's genitals. Reuters, July 1, 2004. Web: www.reuters.com/newsArticle.jhtml?type=topNews&storyID=5565970.
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