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Business Advisor
Don't Let Sloppy Hiring Get You in Trouble
Brian Lapps
Publish Date: October 10, 2007   |  Tags:   Staffing

No administrator or manager wants to read a headline like "Medical Worker Assaults Patient." "Convicted Sex Offender Molests Patient" is even worse and could be the death knell of a surgery center. The best way to protect your facility sounds simple enough: Don't hire employees who have engaged in this type of behavior in the past. It's true that nothing you do will absolutely guarantee that everyone you hire will be a model citizen, but you're legally responsible for these decisions, and careful selection and screening will make it more likely that you'll weed out undesirable employees (see "You're Responsible: Understanding Negligent Hiring").

Common sense and diligence are hallmarks of good hiring in general and protecting against negligent hiring claims in particular. Here are eight things you can do to protect yourself against negligent hiring lawsuits.

  • Conduct a criminal background check. Hiring a qualified professional to conduct a background check is probably the best way to prove that you exercised due care. For small ASCs, this process may be too costly. If you're going to do it yourself, be sure to check all of the states in which a potential hire has lived because criminal records are state records; they don't transfer and accumulate in one file somewhere. For example, a search of Tennessee records won't uncover a Florida conviction. Also be sure to comply with the Fair Credit Reporting Act because background checks are "consumer reports" within the meaning of the FCRA. An applicant must give proper permission for you to conduct a background check.
  • Review resumes and applications carefully. Look for gaps in the applicant's education or employment history. Those gaps could be an indication that a potential hire is trying to cover up something, such as being fired from a job or even having spent time in jail.
  • Verify previous employment. Many people think that calling former employers will only get a response of "I'm not allowed to tell you anything." That's not always the case - many former employers will provide, in addition to dates of employment and job position, other helpful information about the potential hire in question. The way in which a person gives a reference also may provide clues. Write down the times and dates of the calls and note what was said. Even if the former employer doesn't provide all the information you'd like, you can still prove that you exercised due care.
  • Ensure that certifications are current. Hiring someone who doesn't have a current certification is going to be very difficult to defend. The lawyer for a patient bringing a lawsuit won't overlook such a detail, and it may be all the proof he needs to win the case.
  • Comply with state law. Although the federal government heavily regulates the healthcare field, states are free to impose additional statutes and regulations, and many of them do so. Some states may require certain kinds of background checks on employees who have patient contact while others may prohibit those very checks. Sex offender checks, for example, are difficult territory.

Convicted sex offenders are required by most states to register in their state of residence and to keep a photo and current address on file. States typically publish these registries online. Checking to make sure that a potential (or current) employee isn't listed on such a registry can be proof that you behaved carefully. Conversely, the failure to use such a readily accessible tool could be used against you if a problem arises involving an employee who happens to be listed on such a registry.

You might assume that you're free to not hire (or to fire) a person who's listed on a sex offender registry. In most states, that's a correct assumption, because most states let you fire or not hire a person for any reason, as long as the decision is not based upon race, sex, age, disability or another protected characteristic. Some states, notably California, restrict the use of sex offender registries for employment purposes, however. Even states (such as Nevada) that are typically less protective of employee rights than California have enacted laws that limit the use of these registries in the employment context.

It's imperative, then, that you be aware of all state laws before making a decision based on information you find online. This is especially true if your company has operations in more than one state or if your facility is a multi-state employer (as those in the D.C. area, for example, often are).

  • Do your own Google search. There is an abundance of information on the Internet. (Some might say too much.) You may be surprised by the amount of information about a person (including yourself) you can uncover with just a little Web surfing. Go to www.google.com, type in your name and see for yourself.
  • Create a hiring checklist. Keep a list of all the steps that you need to take before you hire an individual: application, resume review, calling references, background checks, confirming that certifications are accurate. Then follow that list and record the completion of each step. Creating a checklist is good evidence that you are a careful employer, but be sure to follow it: If you don't, you will have created the evidence to prove that you weren't sufficiently careful.
  • Don't let your guard down after someone is hired. Negligent hiring isn't the only legal recourse available to someone who's theoretically harmed by your facility's employee. The concepts of negligent supervision and negligent retention can also be used if you continue to employ someone after you become aware that he's not suitable for continued employment.

Thoroughness pays
Employees are one of your most valuable assets. Sloppy hiring practices can lead not only to taking on poor workers who impede workflow or drag down others, but in extreme circumstances can lead to expensive lawsuits and judgments. By paying attention on the front end, you can hire the productive, professional employees you desire and also avoid the potential for expensive litigation as a result of negligent hiring.

You're Responsible: Understanding Negligent Hiring

If someone you hire injures a patient in some way - for example, if a nurse assaults or harasses a patient - you can be held liable for negligent hiring if you didn't use due care in selecting and screening employees. That is, you may be partly responsible for what happened because you failed to use good hiring and screening practices.

Because surgical facilities are in the business of caring for patients who may be vulnerable, especially if anesthesia is involved, you must be particularly vigilant to protect against such claims. Employers typically aren't guarantors of the employees that they hire, but they do have a duty to follow a "standard of care" in the selection of workers.

Lawsuits alleging negligent hiring usually proceed along this line of thought: If the employer had exercised appropriate care in selecting its employees, then it would have discovered the perpetrator's conviction, background and history of prior bad conduct - and therefore wouldn't have hired the perpetrator, who was placed in position to do harm.

- Brian A. Lapps Jr., JD