Legal Review & Commentary

When it comes to background checks for employees, follow your own rules

By Jan J. Gorrie, Esq., and Blake Delaney
Buchanan Ingersoll Professional Corp.
Tampa, FL

News: The parents of a newborn baby retained a home health agency to provide in-home child care. The agency failed to follow its screening procedures when selecting the nurse’s aide and overlooked her history of drug abuse and theft. After 12 nights of adequate baby-sitting, the parents hired the aide directly, outside of her contract with the agency. One night, while in the aide’s care, the 5-month-old died as a result of shaken baby syndrome. After a trial in which the nurse’s aide and the agency were co-defendants, the jury thought it possible that the mother or father had shaken the baby and was not convinced that the aide was responsible. Consequently, the jury returned a defense verdict for the nurse’s aide. Nonetheless, the jury awarded $75,000 against the home health agency because it exposed the family to danger through its negligent screening process.

Background: In July 1995, a baby boy was born with esophageal reflex, causing him to vomit day and night. The child’s condition prevented the mother and father from sleeping through the night. In addition, the mother suffered from postpartum depression. Seeking relief four months later, the couple’s insurance company retained a home health agency to provide overnight in-home child care for 12 nights.

When selecting the particular nurse’s aide for the job, the agency failed to comply with its pre-hiring screening policies — neither the agency nor the parents knew that the nurse’s aide was addicted to Vicodin (hydrocodone), a narcotic pain reliever. As with all narcotics, Vicodin has been known to impair a person’s mental and/or physical abilities by causing hallucinations, mental clouding, and severe confusion. The couple also did not know that the nurse’s aide allegedly had stolen a credit card from a previous client of the home health agency. Nevertheless, the aide was given the 12-night assignment in November and she provided adequate care for the baby during that time.

When the couple’s insurance benefits ran out in December 1995, the agency discontinued its overnight child care in the parents’ home. Later that same month, the mother began treatment for severe depression and panic disorder at an outpatient psychiatric clinic. Consequently, the couple offered to hire the nurse’s aide to moonlight at their home. Despite a clause in the aide’s contract with the home health agency prohibiting such unofficial services, the aide agreed to the couple’s offer in late December.

On Dec. 29, the nurse’s aide baby-sat overnight without incident. The aide next baby-sat during the early hours of Jan. 3, when the parents asked her to watch the boy for the last six hours of the night. The following morning, the aide saw the baby was unresponsive and called the father, who attempted to resuscitate the child while waiting for the paramedics to arrive. The baby was pronounced dead as a result of blunt trauma and shaken baby syndrome. The most noticeable injuries were brain and eye hemorrhages.

An Illinois state court convicted the nurse’s aide of murder. In her appeal, the aide argued that because so many people had access to the baby that night, including the mother and father, it was improper for a jury to have found her guilty beyond a reasonable doubt. After spending several years in prison, the Illinois Second District Appellate Court reversed the aide’s conviction in May 2000. At that time, she pleaded guilty to attempting to obtain prescription drugs without a prescription and to theft of a credit card.

Following the reversal of the aide’s criminal conviction, the parents sued the nurse’s aide for willful and wanton conduct. The couple also sued the home health agency for negligence, claiming the agency’s failure to comply with its screening policies caused the baby’s death. The parents alleged that the agency’s screening policies would have led to discovery of the Vicodin addiction, and the plaintiff’s expert argued that the Vicodin addiction led directly to the killing of the baby.

The defendants first argued that the injuries happened before the nurse’s aide arrived at the couple’s home on the morning of Jan. 3. Defense experts testified that the injuries could have occurred any time during the 24 hours before the baby boy’s death and the fact that the aide was only present during the last six hours of the night created enough doubt about whether the aide was responsible. Furthermore, the defense argued that either the father or the paramedics were responsible for the eye and brain hemorrhages, given that the father observed none of those injuries when he was first called by the aide to attend to the unresponsive baby.

The second defense offered by the home health agency was that the aide’s private contract with the parents released the agency from any liability. In response to this, the parents contended they relied on the agency’s background check in making their decision to hire the nurse’s aide.

At the conclusion of the trial, the jury was not convinced that the nurse’s aide was responsible for shaking the baby and returned a defense verdict in her favor. The jury then found that the home health agency was negligent in conducting its screening process. It found that the agency’s negligence exposed the family to danger, even though the danger never materialized into any real damages. As a result, even though arguably inconsistent, the jury’s verdicts released the aide from all liability, yet awarded the parents $75,000 in damages from the agency.

What this means to you: Because a home health care provider, by its very nature, has no control over the environment in which its employees will deliver the health care services, such providers universally establish procedures for screening prospective employees during the hiring process.

"This case presents a classic illustration of why it is absolutely imperative that an organization follow the rules, especially when it was the organization itself that wrote the rules," states Ellen Barton, JD, CPCU, a risk management consultant in Phoenix, MD.

All screening procedures undoubtedly ensure an applicant’s satisfaction of licensing and other technical qualifications required for providing medical care. However, part of the rules should also include reviewing a prospective employee’s suitability for the unsupervised nature of home health care service.

"The very core of a home health agency’s operations is the delivery of care in a client’s home. Thus, the agency not only needs to assure itself that the prospective staff are clinically competent, but also that the prospective staff can be trusted to deliver care in a safe and effective manner," Barton says.

During the screening process, a home health care provider should evaluate several aspects of an employee’s background relevant to providing medical care while in a patient’s home.

"First, no one would disagree that it is prudent for an organization in the home health business to conduct screening procedures that include criminal background checks on all applicants," states Barton.

A criminal history can signify an employee’s general disregard for following rules and, depending on the specific nature of the criminal record, may indicate particular problems that are likely to arise in a home health care situation.

A second relevant aspect of a prospective applicant’s background is the employee’s lifestyle, including any illegal or destructive habits, such as alcoholism and other drug addictions. In this case, although the aide’s Vicodin addiction would not have surfaced during a routine criminal background check, such information is nevertheless relevant to the quality of care that the home health care agency should expect from her. As the plaintiff’s expert opined in this case, the narcotics habit may have impaired the mental and physical abilities of the nurse’s aide to the point of causing the killing of the baby.

Thus, while a home health care agency has no control over the environment in which the care will be delivered, it does have some control over the staff that it hires to provide services. Such control will not only lead to a higher level of patient satisfaction, but it also will reduce liability in a field that depends upon unsupervised individuals providing care in the most intimate of settings: the patient’s home.

"If the agency had followed its own screening procedures and conducted an appropriate background check, it is unlikely that the nurse’s aide would have been hired. Even if the agency had not discovered the aide’s drug addiction and criminal background, but had followed its own screening procedures, it is unlikely that the agency would have been held responsible for exposing the family to danger," states Barton.

This is because it would be difficult for a jury to find that a home health care agency acted negligently if the agency could show that it acted reasonably according to the relevant standard of care.

"On the other hand," Barton says, "What if the home health agency had conducted a background check, discovered the red flags in the prospective employee’s background, and chosen to ignore them because of what it perceived as a business need to hire staff? It’s likely that under those circumstances, the agency could have exposed itself to both civil and criminal liability.

"The lesson from this case is simple: Follow the rules!" concludes Barton.

Reference

• DuPage County (IL) Circuit Court, Case No. 97L-1403. n