In light of 2 criminal cases, how do you ensure employees don’t abuse patients?

Use background checks to find out about applicant’s history

An anesthesiologist is charged with three counts of criminal sexual conduct after two patients say he assaulted them while they were awaiting outpatient surgery.1

A surgical tech living illegally in this country is convicted of using a digital camera to secretly take photographs of a partially dressed semiconscious patient who had gone to a hospital for surgery after a miscarriage. The tech pleaded guilty early in 2005 to charges that he videotaped under the skirt of an 11-year-old girl at a clothing store. After that arrest, investigators seized his camera, which contained images of the hospital patient.2 The victim has filed a civil lawsuit against the hospital.3

The issue in such cases is not only whether the employee has committed criminal activity or a civil action, but also the potential liability of the hospital, surgery center, or physician’s office where they worked, says Stephen Trosty, JD, MHA, CPHRM, director of risk management and continuing medical education at American Physicians Assurance Corp. in East Lansing, MI.

"If they can’t show they have done an adequate background check, there’s a good chance they could be held liable for these," he says.

On the downside, background checks are expensive and identify only criminal records, says Waldene K. Drake, RN, MBA, vice president of risk management at Cooperative of American Physicians-Mutual Protection Trust (CAP-MPT) in Los Angeles.

Several years ago, Florida enacted a law to deter employee abuse of patients by adding a requirement for licensed hospitals and surgery centers. The law forbids, except when emergency circumstances require otherwise, that a staff member be with a patient in the recovery room unless the staff member is authorized to do so and is in the company of at least one other person. However, a facility is exempt from the two-person requirement if it has live visual observation, electronic observation, or any other reasonable measure taken to ensure patient protection and privacy.4

A background check is another way to deter employee abuse, say experts interviewed by Same-Day Surgery. Before you start conducting these, have relevant policies and procedures in place, Trosty advises. "For example, if you will look at conviction records, you should have a specific policy outlining what you will do relative to the nature and seriousness of any offenses/convictions — e.g., misdemeanor vs. felony, nonviolent vs. violent misdemeanor," he says. "Also, you need to decide if you will look at all offenses/convictions or only those that occurred within a set time limit — e.g., within the last five years or last 10 years."

Avoid charges of discrimination in conducting criminal background checks by doing them for all applicants or by doing them for all applicants for jobs where they may be left alone with patients for extended periods of time, he says. You may want to consider these background checks for those working with pediatric or geriatric patients who may be unattended, Trosty says.

If you examine arrest records in addition to convictions, you probably should weigh only arrests that are related to employment, to the job responsibilities, and to a person’s honesty and ethical behavior as it relates to the proposed responsibilities and patient interaction, Trosty says. "It’s important to know your state’s laws regarding this and adhere to them," he emphasizes. Keep in mind that some states require criminal background checks and may list crimes that would exclude hiring, sources say.

What else should you look for?

In many states, the state medical board’s web site will list any paid malpractice claims or medical board actions against physicians, Drake says. "Sexual issues may be seen there if there has been an action taken," she says.

For professionals who require license or certification, check with the appropriate entity to ensure there have been no actions taken against them, such as loss of license or certification, Trosty advises. The National Practitioner Data Bank (www.npdb-hipdb.com) also provides information on licensure, clinical privileges, professional society membership, and exclusions from Medicare and Medicaid.

At HealthSouth Aurora (CO) Surgery Center, "Though our credentialing process, all the physicians, all their backgrounds are checked closely through the databank," says Rosalie Bodenhamer, MA/MSN, administrator.

At Harmony Ambulatory Surgery Center in Fort Collins, CO, a background check includes a criminal check, a check with the Department of Health and Human Services for Medicare/Medicaid fraud and abuse, a Social Security number verification, and an education/degree verification, depending on the position that the applicant is applying for, says Rebecca R. Craig, RN, CNOR, CASC, administrator.

Should you ask for references?

Ensure whoever handles the hiring is obtaining references, Trosty says. Ask employees to sign a permission form that allows you to contact their former employers, he suggests. Subsequently, you can find out if applicants have even been suspended from a job or terminated, he says.

"Hopefully you have a requirement that for anyone hired, you have a minimum of two to three references from places they actually worked and from individuals they actually worked for," he says. "That means you’re getting, as best as you can, the most accurate and up-to-date information from institutions or surgery centers where they most recently worked."

On the downside, unless the employee has a criminal record, most employers will not share anything negative, Drake warns. "This is usually in fear of litigation from the employee," she says.

To address this problem, request a copy of the job applicant’s last one or two performance reviews/evaluations as part of hiring process, Trosty advises. If an applicant was discharged from the armed forces, also request a copy of Form DD-214, he suggests. "This form verifies discharge status and also may include information about a person’s performance, any disciplinary action, and/or any psychiatric testing."

In terms of an applicant’s employment history, ensure all time periods are accounted for, Trosty advises. While some applicants may have legitimate reasons, such as being pregnant or staying home to raise children, you want to know if applicants took time off because of legal problems or substance abuse problems, he says.

Consider verifying applicant’s identity to be certain the person is who they claim to be, Trosty advises. Fingerprints are probably the most accurate means of verification but can be costly to process, involve cooperation of law enforcement, you must be certain that your state permits obtaining them, and you need to obtain them for all employees or all classes of employees, he says. "Do not use selectively," Trosty emphasizes.

Have a process, as well as written policies and procedures, of what checks should be done prior to making a job offer, he says. "Ideally, a job offer should not be made until all verification is completed and a background check has been done."

If a manager thinks he or she has to make an offer before this process is completed, it definitely should be contingent on a successful and positive completion of the process, he says. "This should be clearly set forth in a written letter to the applicant so that there is no misunderstanding or miscommunication regarding this issue."

All of these steps could help you if you end up in court, where traditionally, plaintiff’s lawyers tried to make employers 100% responsible for everything their employees did, Trosty says. "Now courts, realistically, can’t expect that, but they can expect an adequate and comprehensive background check would have been done, both in terms of clinical skills and abilities, education, licensing, but also in terms of character and personality," he says. For example, outpatient surgery managers can show that they have verified certification and licensing, talked to former employers, and discussed unexplained breaks in employment, Trosty says.

Additionally, you need to have appropriate policies and procedures included in your orientation and revisited on a regular basis as part of inservicing, he says.

"If you have that all in place, you can argue you’ve done everything humanly possible," Trosty says.

References

  1. Detroit Free Press. In Court: Anesthesiologist accused of assaulting patients. Web: www.freep.com/apps/pbcs.dll/article?AID=/20051121/NEWS05/511210329/1001/NEWS.
  2. Bird B. Aide deported after secretly taking photos of female patient. Chicago Sun-Times. Nov. 19, 2005. Web: www.suntimes.com/output/news/cst-nws-edward19.html.
  3. Rozek D. Chicago Sun-Times. Hospital staffer admits taking pictures of undressed patient. Sept. 27, 2005. Web: www.suntimes.com/output/news/cst-nws-hosp27.html.
  4. The 2005 Florida Statutes. Title XXIX Public Health. Chapter 395 Hospital Licensing and Regulation. Web: www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=CH0395/SEC0197.HTM&Title =->2005->CH0395->Section%200197#0395.0197.

Source

For more information on avoiding patient abuse by employees, contact:

  • Stephen Trosty, JD, MHA, CPHRM, Director, Risk Management and Continuing Medical Education, American Physicians Assurance Corp., East Lansing, MI. Phone: (800) 748-0465, ext. 6808. Fax: (517) 332-0262. E-mail: strosty@apassurance.com.