Legal Update: The Legal Burden of Workplace Bullying

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Staff-on-staff hostility puts your facility at risk for litigation.


women bullies target other women PICKING ON THEIR OWN Women bullies target other women 68% of the time, according to a 2014 Workplace Bullying Institute survey.

The healthcare workplace hinges on effective collaboration, teamwork and communication. Workplace bullying represents a direct threat to all three. Besides damaging relationships, bullying can also impact patient care and trigger litigation.

In 2008, a perfusionist won a $325,000 verdict against a surgeon who allegedly balled his hand into a fist and pinned the perfusionist against a wall after an argument in the operating room. The surgeon then allegedly walked away while yelling, "You're over. You're history. You're finished." The perfusionist sued the surgeon, asserting intentional infliction of emotional distress and assault. The jury awarded the perfusionist $325,000 for the assault claim, and an appeals court rejected the surgeon's challenge.

In a separate suit in Ohio, in 1993, a male surgeon allegedly grabbed a female nurse by the shoulder and pulled her face close to a patient's surgical incision after she supposedly gave him the wrong surgical instruments. She claimed he then said, "Can't you see where I'm working? I'm working in a hole. I need long instruments." The nurse sued the surgeon for intentional infliction of emotional distress and battery. Although the Ohio Court of Appeals concluded the nurse had not established emotional distress, the court let her battery claim proceed.

If relevant, a pattern of workplace bullying might also add to the damages and claims sought in a medical malpractice suit. For example, a plaintiff's attorney might allege a facility was well aware of the individual's bullying and failed to address it, thus trying to seek "punitive damages." (Punitive damages are additional monetary damages, which are above and beyond those needed to compensate the injured party; these damages are intended to punish the wrongdoer and deter others' such conduct in the future.) A plaintiff's attorney might also allege a negligent credentialing/ retention claim, contending the bullying individual shouldn't have been selected or retained on the facility's medical staff.

Suffer in silence
Intimidating and bullying behaviors can manifest in a variety of ways: overt acts such as verbally abusing, threatening, humiliating or degrading a co-worker; sabotaging another's work; and using condescending language or tone. Bullying might also include more passive acts, such as refusing to cooperate with co-workers, intentionally failing to return calls or ignoring a team member through social isolation.

Who's doing the bullying? According to a 2014 Workplace Bullying Institute survey, 69% of bullies are men, 57% of the bullying targets are women, and women bullies target other women 68% of the time.

WHAT YOU CAN DO
8 Steps to Creating a Bully-Free Surgical Facility

Here are some definitive steps you can take to build a "culture of safety" at your facility.

1. Develop a written code of conduct that sets clear expectations of appropriate behavior, including respect, and which defines (and lists examples of) disruptive and intimidating behavior.

2. Incorporate this code of conduct into employment agreements and your facility's medical staff bylaws.

3. Educate all facility employees and staff, including physicians, as to appropriate behavior and communication at orientation and periodically thereafter. You can also address stress management and conflict-resolution techniques, effectively giving a voice to all team members.

4. Insist that facility leadership (administrative and clinical) model positive behavior themselves.

5. Develop a system for reporting bullying behavior, including an anonymous option. Reporting should be seen as helping to maintain quality and safety. Encourage reporting without fear of retaliation; this includes witnesses reporting bullying they have observed. Employees should know whom to contact in order to report a concern.

6. Assess and investigate all reports of bullying; take each report seriously. Provide support to the bullying victim as appropriate. Ask the alleged perpetrator to provide his or her side of the story. Sometimes there are different sides to (and perceptions of) the same event. Interview witnesses, too.

7. Have policies and procedures in place to outline responses and potential sanctions for staff, employees and non-employee healthcare providers.

8. Use these policies and procedures to set forth a continuum of responses, ranging from informal meeting, education, additional training, warnings and counseling, and moving to disciplinary action and corrective action, as appropriate. Implement the process fairly, whether through human resources, the medical director or referral to the facility's medical staff and wellness committees. Corrective action should be consistent with your facility's medical staff bylaws if privileges are affected. Document the problematic behavior at issue, plus the attempts and actions you've taken to address the behavior.

— Angela T. Burnette, Esq., Rebecca Kennedy, Esq., and Genta Iwasaki

Bullied workers suffer from lower morale, lower productivity, lower job satisfaction, disengagement, increased absenteeism and burnout. Bullying can also lead to rapid staff turnover. Any of these symptoms can compromise patient safety, particularly in the surgical setting. Intimidating and disruptive behaviors can, according to a 2014 Workplace Bullying Institute survey, "foster medical errors, contribute to poor patient satisfaction and to preventable adverse outcomes, increase the cost of care and cause qualified clinicians, administrators and managers to seek new positions in more professional environments." There's also the possibility that bullying could escalate into workplace violence.

Why aren't we doing more? In June 2016, The Joint Commission (TJC) issued an advisory entitled "Bullying Has No Place In Health Care," in which it concluded workplace violence was not only under-reported but also more common than sexual harassment. Given the scope and severity of bullying's effects on the workplace, why aren't we further along in solving this problem? Some cite a fear of retaliation for reporting, perceived stigma for reporting, or a worry that the problem will worsen or be ignored — that a "powerful revenue-generating physician will be let off the hook." Some thought it was easier to ask to be reassigned to another OR or shift, reassigned with another surgeon or to continue to suffer in silence.

But we have seen some progress. In 2009, TJC issued standards for all accreditation programs, encouraging surgical facility leaders to create a safe work environment and to address inappropriate or intimidating behavior. These standards, which recognize that intimidating behaviors can undermine a culture of safety and harm patient care, promote teamwork and respect for others.

VICTIMIZED
Workplace Bullying's Deep, Bruising Impact

workplace bullying

Bullying can do significant damage to a workplace's culture and its bottom line.

  • A June 2016 Joint Commission (TJC) advisory noted the overall cost of replacing a nurse who leaves due to bullying ($27,000 to $103,000) is coupled with the additional "cost" involved when patients and their families witness bullying. It's estimated that 64% of bullying victims leave their workplaces and that the overall cost of workplace bullying may be as high as $4 billion a year.
  • In 2014, an Institute for Safe Medication Practices (ISMP) survey of nearly 5,000 healthcare professionals revealed some startling results: 68% were subjected to condescending language or demeaning comments; 46% experienced shaming, humiliation and malicious rumors; 24% reported being insulted or slighted based on race, religion or appearance; and 18% reported witnessing a healthcare professional throw an instrument, chart or other object at work. Perhaps most disturbing, 7% of respondents reported they had been physically abused at their workplace.
  • In 2008, TJC issued a Sentinel Event Alert in which "disruptive behavior" was linked to medication errors, treatment delays and the reluctance or failure to pursue safety precautions. Also noted by TJC, as part of the Wrong Site Surgery Project, staff who are "not empowered to speak up" is a cause of wrong-site surgeries.

— Angela T. Burnette, Esq., Rebecca Kennedy, Esq., and Genta Iwasaki

What do we go from here?
Early detection of bullying is essential, not only for the bullied but also for the individual who is doing the bullying. Intervention, possibly through an esteemed mentor, can help bullies receive the redirection/assistance they need to be a valued team member again. As TJC has said, "organizations that fail to address unprofessional behavior through formal systems are indirectly promoting it." Taking bold steps to eliminate bullying from the workplace shows your staff that, in your quest to deliver the best patient care possible, you won't compromise their well-being in the process. OSM

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