Center given moratorium after abuse allegations

State: Some complaints weren't investigated

Outpatient surgery managers, take note: A Florida ambulatory surgery center (ASC) was banned from admitting new patients for 18 days following a determination by the state that the administrator/risk manager failed to prevent a male staff member from sexually abusing a patient after complaints from other staff members.

"An ASC is going to have liability issues if it allows this to happen," says Brian A. Lapps Jr., JD, attorney with Waller Lansden in Nashville, TN. The more it happens, the more allegations there are, the more they are likely to have significant legal problems."

At Oakridge Ambulatory Surgery in Fort Lauderdale, the complaints about the male staff person included:

  • A female patient reported that the male employee touched her breast and placed his finger on her sexual organ. The administrator/risk manger documented that the staffer touched her breasts and "belly button."
  • Nurses reported to the administrator/risk manager that they saw the male employee inappropriately touch the pubic area of a sedated female patient. There was no incident report or investigation, and the police were not informed. "The staff was generally afraid to make any complaints to the facility," according to the State of Florida Agency for Health Care Administration.1 "Those who did were reprimanded."
  • Four RNs and one tech stated that the same male employee isolated female patients in the bathroom and assisted them as they changed into their clothes, even after being instructed to stop that practice.
  • A plastic surgeon complained about the same male employee staring at the breasts of female patients. These incidents were not investigated or documented on incidence reports.
  • A nurse complained that when standing preps were done on female patients, the same male employee would stop doing work, turn and face the back of the patient, and watch the procedure. The nurse told the risk manager.

The male employee was terminated Aug. 15, 2005; however, there were at least four incidents before September 2004 before any action was taken to remove this staff member. Three of those incidents were never investigated by the risk manager or anyone else at the facility.

When the risk manager was interviewed, "the risk manager did not feel, even up to the current time, that there was any problem with the risk management function," according to the state Agency for Health Care Administration. "The risk manager was not knowledgeable of the facility's policies and procedures or of state risk management requirements."1 Those requirements include investigating and analyzing adverse incidents to patients and developing measures to minimize the risk of adverse incidents through prevention.

According to the agency, staff did not think their observations were treated seriously, "and even worse, staff was reprimanded for coming forward with these complaints. This fostered an atmosphere in which observed incidents would not be reported and therefore the protection of the patients was compromised."1

The moratorium was lifted by the Florida agency when officials determined the surgery center was in compliance with state regulations.

This allegation of misconduct is one of the more blatant ones that Lapps has seen. "If you nip it in the bud and fire someone who does this right away, report it to the appropriate authorities timely, and take appropriate action, that is best chance or avoiding or minimizing liability."

In fact, the key reason the center was banned from admitting patients for 18 days was that its risk management didn't respond appropriately and timely, he says. "It's almost as if the risk manager tried to cover it up," Lapps says. "It's the cover-up that gets you in trouble."

Build trust with your employees so that they can come forward, Lapps advises. "Develop credibility, and take these types of allegations seriously," he says.

Also, familiarize yourself with your state requirements for background checks, Lapps adds.

When an incident is reported, consult with an attorney to determine whether legal authorities should be contacted, he suggests.

"The big lesson is don't stick your head in the sand," Lapps says. "If you have a risk management program, train your people on it, follow it, and do something."

If you have a cancer in your body, you don't cover it up and hope it goes away, he points out. "The same principle applies to dealing with a bad employee."