In light of recent high profile cases of sexual assault and harassment in healthcare facilities, risk managers should assess whether their policies and procedures are strong enough to produce an adequate response when staff members or patients report these incidents, one experienced risk manager suggests. The policies must lead to disciplinary action when appropriate, she says.
“It needs to be a policy that has teeth,” says Delphine O’Rourke, JD, in-house general counsel and chief advocacy officer of Our Lady of Lourdes Memorial Hospital in Binghamton, NY, and managing partner of the Philadelphia, PA, office of the law firm Hall, Render, Killian, Heath & Lyman.
Two recent cases in the news drew attention to the problem of sexual abuse and harassment in healthcare. One involved a physician accused of sexually abusing a patient, and another involved a surgical tech accusing a nurse anesthetist and surgeon of sexually harassing her. Both incidents resulted in lawsuits against the hospitals and others. (See the story later in this issue for more information on those incidents.)
“In both of these cases, there were allegations that hospital administrators didn’t respond or didn’t investigate,” O’Rourke says. “The policy has to be strong enough to create a culture of compliance, to communicate to physicians and staff that we take this seriously and there are concrete identifiable consequences to this behavior. [Have] zero tolerance for this type of behavior.”
CONSIDER A HOTLINE
There also should be a process to facilitate concerns about sexual abuse and harassment, O’Rourke says, such as a hotline dedicated to staff concerns or even to this particular concern.
Anonymous reporting is critical because staff members cite fear of retaliation as one of the main reasons they do not report sexual misconduct, as victims or witnesses. Particularly with the physician/staff dynamic in healthcare, employees can be very fearful that a physician will retaliate in the workplace, even if there are no negative consequences from administration in a formal way, she says.
“They won’t get the high-paying shifts, they’ll be cut off from surgeries with that physician, moved from their units, subject to greater harassment by the person they report,” O’Rourke explains. “That fear of retaliation can be a powerful disincentive even when the person knows that what is happening is wrong and shouldn’t be tolerated.”
REASONS FOR RELUCTANCE
Victims also can be dissuaded from reporting because they think nothing will be done to stop the behavior.
There is some justification for that thought because even when physicians are accused of sexual misconduct, state boards rarely take any disciplinary action, according to the first study using information on physician sexual misconduct from the National Practitioner Data Bank (NPDB). (See the story later in this issue for more information on that report.)
Though allowing anonymity, the process for reporting concerns must give administrators enough information to investigate and act. Achieving both requires a delicate balance, O’Rourke says. It is not unusual for hotlines to receive calls that indicate a serious problem but provide too little information for follow up, she says.
Any information promoting the hotline, and the recording the caller hears, should emphasize the need for enough detail to allow administration to respond. That information must be paired with assurances that any retaliation in the workplace will not be tolerated.
O’Rourke notes that encouraging people to report concerns directly to risk management may not be the best choice. Like it or not, many employees and patients perceive risk management as working to protect the hospital rather than them, so they may be discouraged from reporting, she says. Even if the reports go directly to risk management, it probably is not a good idea to promote that point, she says.
It also is not enough to sit back and wait for the calls to come in. Risk managers should proactively monitor some hospital areas and types of care where sexual misconduct is more likely because patients are more vulnerable, she says. Those areas include geriatrics, pediatrics, surgery, home visits, and anywhere patients are anesthetized. O’Rourke recommends talking with staff in these areas frequently to get a feel for the culture, what is tolerated and what is not, and how comfortable people might feel reporting a problem.
Another strategy is to randomly audit charts of vulnerable patient populations, such as those receiving home care, by contacting those patients and asking about their experiences, O’Rourke suggests. Particularly when you are sending employees to the homes of vulnerable patients, give them the opportunity to voice concerns about sexual misconduct, theft, or any other problem. Those issues may not be detected by in-house efforts, so outreach is necessary.
AREAS OF LIABILITY
Failing to have a meaningful, effective process for reporting and investigating sexual misconduct claims opens up the hospital to liability on several levels, O’Rourke notes.
The hospital can be sued for retaliation even if the administrators did not formally discipline the employee for reporting. The employee can show that he or she was denied higher paying shifts, promotions, or otherwise suffered as a result of reporting, O’Rourke explains. The hospital also can be sued for failing to act after receiving a report and for failing to follow its own policies and procedures.
“Regardless of who the alleged harasser is, the hospital should follow the same policies and procedures,” O’Rourke says. “Employees are very attuned to that because this is an environment in which there is a hierarchy, and it’s very clear and acknowledged by everyone. If employees don’t think the system will treat them equally when they report these things, problems will go unreported, and you’re creating a hostile work environment where sexual harassment is tolerated, if not encouraged.”
O’Rourke notes that in a California case in which a surgical tech claims a nurse anesthetist was exposing himself to her during procedures, the hospital administration allegedly refused to review the OR surveillance video after she reported the incidents or turn over the video without a court order. If that accusation is true, O’Rourke says, the hospital sent a bad message to employees by implying that it was not willing to investigate serious claims of misconduct.
“I’ve heard countless times, ‘What happens in the OR stays in the OR,’” O’Rourke says. “That culture has to change. Whether it has to do with sexual harassment or infection control, the OR cannot be an environment where rules are broken or rules are bended because of a historic culture.”
SOURCE
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Delphine O’Rourke, JD, Managing Partner, Hall, Render, Killian, Heath & Lyman. Philadelphia, PA. Email: [email protected].
