Let employee health handle falls to help reduce the risk

Question: When employees are injured in falls in our facility, should we send them to the emergency department (ED) or the employee health clinic? Serious injuries go straight to the ED, of course, but we’ve been playing it safe by sending some relatively minor injuries there, too. We don’t want to risk any accusation that we gave an employee lower-quality care.

Answer: Your efforts might be well-intentioned, but they could backfire, says Mark Hakim, BS, MA, MBA, risk management consultant with ProAssurance Corp., an insurer in Okemos, MI. As long as your employee health department provides high-quality care, which it should regardless of this particular concern, Hakim says it is a much better policy to send employees injured in falls there routinely instead of the ED.

Life-threatening injuries should receive appropriate care regardless of whether the patient is an employee, of course, so the ED can be the correct destination in those rare instances. But for most employee slip-and-fall injuries, you put the employer at unnecessary risk by using the ED instead of employee health. The reason has to do with the "dual-capacity doctrine," Hakim explains. He defines the doctrine as meaning that "an employer who is normally immune from tort action because of workers’ compensation laws may be liable for additional damages as a party who has committed a wrongful or negligent act beyond its role as employer."

In other words, if the employee stays in the employee health department, in most cases the hospital is just an employer responsible for workers’ compensation claims. If the employee goes to the ED, the employer also could be exposed to malpractice claims or other allegations that any patient might bring. "If you send this patient to the emergency room, any number of things may come up. Maybe a breach of confidentiality or allegations of medical malpractice," he says. "Normally, the hospital would be shielded from these claims because most workers’ comp laws prohibit tort action; but if you treat them outside employee health, you might be opening the door for the claim to go beyond workers’ comp."

By treating the injury in the employee health department, the hospital is liable in most cases only for the workers’ compensation-related expenses. The workers’ compensation laws prevent further tort actions. The dual-capacity concept could allow a workers’ compensation case to be treated as a professional liability suit, exposing the employer to far more expense.

A breach of confidentiality is of particular concern with employee cases, Hakim says. The nature of the injury might be embarrassing if it is known to co-workers, for instance; and since those co-workers are right there in the hospital, it is quite possible that they will hear about it from ED staff.

The employee’s own knowledge of hospital operations also could lead to an increased risk of malpractice charges. "Maybe the doctor misses a fracture and the employees know they don’t do overreads of X-rays," Hakim says. "It’s then possible that the employee’s inside knowledge could prompt him to go down the malpractice route instead of workers’ comp."

He recommends that risk managers enforce a policy stating that all employee injuries must go through the employee health department first, with the exception of those that are clearly serious injuries. They can go straight to the ED. "It’s pretty rare that the dual-capacity doctrine is used, but it’s out there and it could result in substantial additional liability," Hakim says. "Why expose yourself to that if the employee can be treated adequately in the employee health department? That’s why you have an employee health department."