Legal Review & Commentary: Negligent hire, supervision: $850,000 verdict reached
News: After a hospital hired a patient care technician who had a rape conviction, suit was brought against the hospital by a patient alleging sexual assault by the hospital employee. The patient was recovering from surgery when the patient care technician massaged her back and buttocks with lotion. She alleged that in the course of the massage, there had been digital penetration by the technician. After an eight-day trial, the jury awarded the plaintiff $350,000, attributing 25% of the fault to the hospital’s negligence and 75% to the perpetrator’s wrongdoing.
Background: The plaintiff had a history of eating disorders and laxative abuse, which resulted in damage to her colon. She had undergone an ileostomy and was hospitalized three times afterward to correct problems. She contended that, in the early hours of the morning prior to undergoing additional surgical repair, a hospital staff member sexually assaulted her. She first told her boyfriend, who later that day told a nursing supervisor that the patient care technician had massaged her back and buttocks with lotion. The next day, the hospital was informed that there had been digital penetration during the incident. In the meantime, the hospital employee was not prevented from working.
The patient brought suit against the hospital, alleging that had it not been for its negligent hiring, negligent supervision, and negligent retention of the employee, she would not have been sexually assaulted. The plaintiff found that the employee was on a 10-year probated sentence for molestation of his 16-year-old daughter. The plaintiff contended that the hospital knew this and should have watched him more closely.
At trial, the patient care technician’s probation officer testified that he had told the radiology supervisor — the employee’s supervisor when first hired — of the conviction. The hospital contended it did not know of a criminal background when he was hired, even after doing a background check and hearing "glowing" recommendations from former employers. It was not until after he was employed that the hospital learned of the previous conviction. The plaintiff also maintained that there were prior complaints regarding the employee and conscious indifference on the part of the nurses.
The hospital brought the now-former employee into the lawsuit as the responsible third-party defendant. The patient care technician, who was convicted of rape and served time at a local correctional facility, was issued a bench warrant and brought to trial despite having defaulted on answering the hospital’s third-party petition. At trial, he made a brief appearance for identification purposes, but never testified.
Plaintiff sought to recover damages for mental anguish and psychotherapy. After eight days of trial, jurors returned a verdict for the plaintiff, placing 25% negligence on the hospital and 75% on the convicted rapist. The total was $850,000. Post-trial motions will determine whether the hospital is accountable for the full amount.
What this means to you: "The first thing that jumps out in this case is how did an employee who has presumably been hired to work in the radiology department as a patient care attendant [PCA] end up on a patient floor rubbing any patient’s back, much less their buttocks," says Leilani Kicklighter, RN, ARM, MBA, CPHRM, CHt, director, risk management services, Miami Jewish Home and Hospital for the Aged. "When this was initially reported, it should have raised a big red flag, and risk management should have been notified and conducted an investigation immediately. Additionally, this employee should have been put on temporary leave until the investigation was completed. Depending on the laws in your state, this may come under come under patient- or elder-abuse laws, although you may have the grace period for reporting until your investigation is complete. Also, depending on your state laws, when or if the police are contacted is also an issue for consideration.
"The second red flag in this case is the alleged fact that came out at trial through the testimony of the parole officer. The parole officer made it clear that the radiology department supervisor had been advised of this employee’s criminal history — and we have no facts or testimony from the supervisor claiming otherwise. Further, the criminal history revealed that this employee had sexually molested his daughter when she was 16 years old. This means he is a convicted pedophile and, in all states as a result of federal legislation, there is a convicted pedophile registry which is published and readily available to the public. Such a conviction does not necessarily mean a person can’t be employed in a health care setting, depending on state statutes, but good risk management and common sense dictate that the person should be hired in a position that had no patient contact," adds Kicklighter. If such a candidate is hired, or where placed if hired, it is an HR/risk and business decision.
This type of risk exposure is not limited to the acute care setting. It could happen in the long-term care setting or any other number of health care settings. The risk management principles are the same as those in which the patient or resident is in the organization’s care, control, and custody.
"It is the organization’s duty to do a thorough background check on all employees. Even if the state does not require it, it is good business practice to do so. Health care organizations are required to do all kinds of due diligence with businesses and persons with whom they do business; it only stands to reason this would logically extend to personnel. For instance, compliance programs require that we conduct a check to determine whether anyone with whom we contract or otherwise do business with has certain federal sanctions against them. In addition, we are required to conduct Department of Motor Vehicles checks on employees who are on our auto insurance policies. Therefore, if the organization were doing all these checks anyway, to conduct a more thorough background check on employees seems to be an extension of the processes already in place. Thorough background checks would also likely turn up individuals who have had problems dealing with other people’s money. This is certainly another significant potential risk exposure to any business if the person is or will be working in a position handling money. A plaintiff could make the case that if an organization is conducting all these other background checks, to not have done the additional background check on this particular employee is negligent," Kicklighter says.
"This is an area where the risk manager should work closely with compliance and human resources/personnel to verify that all prospective employees are appropriately screened pre-placement and that there is a clause in the pre-hire paperwork in which the prospective employee agrees that if the background check reflects additional or different information from that on the application, the applicant will not be hired, or if already hired will be immediately terminated. This is an area where counsel with an employment background should be consulted for good measure," adds Kicklighter.
"However, one must recognize that unless an organization specifically requests a history check for a longer period of time, the usual background check goes back only seven years. Some convictions are prior to that and will not be reflected on the report unless requested. The other potential problem is if the crime/conviction occurred in another state, it would not appear on a check that is limited to the facility’s location. Therefore, the criminal/civil conviction check should be a national check, not just your jurisdiction. However, this may become an expensive proposition if there is not some indication that the more thorough check is necessary," notes Kicklighter.
"Another aspect to consider is the application for consideration of employment. All applications should have a query regarding convictions, both civil and criminal. If the question is answered affirmatively, it warrants the organization’s deeper investigation of the circumstances. If the question had been answered affirmatively in this instance and the health care organization didn’t conduct an investigation into the particulars, the risk manager should address that lack of procedure, and they should probably engage an attorney at that juncture," states Kicklighter.
"In view of the plaintiff’s allegations of prior complaints regarding this employee that were allegedly not dealt with, the risk manager should work with the human resources or personnel department to develop an inservice program for all staff that re-emphasizes how to handle complaints and other infractions of policy, procedures, and standards of care," Kicklighter says.
"In this scenario as presented, the patient did not tell the staff there had been digital penetration until the next day. However, the back rub by a PCA who worked in the radiology department not only should have invoked an immediate call to the risk manager, but in turn, the risk manager should have initiated an immediate investigation that should include interviewing the patient. Had this been done on the day of the report of the back rub, perhaps the additional information would have been shared in a more timely fashion. Although risk management should not make personnel or disciplinary decisions, in this case, had risk management been immediately involved, consideration should have been given to temporary leave or temporarily reassigning the PCA until the investigation was complete," adds Kicklighter.
Reference
Dallas County (TX) District Court, Case No. 00-09955-F.
News: After a hospital hired a patient care technician who had a rape conviction, suit was brought against the hospital by a patient alleging sexual assault by the hospital employee.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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