Act swiftly, decisively to discourage verbal abuse of staff and patients
Lawsuits and fines are just some of the consequences
A nurse drops a surgical instrument in the operating room and the physician berates her for sloppiness. The next time she is in the operating room with the surgeon, the nurse is so nervous she cannot keep a steady hand. Numerous instruments are dropped, lengthening the procedure and the amount of time the patient is under anesthesia.
An orderly is not granted his vacation request. Unhappy, he follows his supervisor around the hospital all day muttering obscenities under his breath. The supervisor becomes so upset he forgets to attend an inservice on lifting and moving patients.
An elderly patient won't take her medicine for the fifth day in a row. Frustrated, the nurse calls the woman stupid in front of the patient's visiting adult children and then berates the visitors. The patient's children sue the facility, winning $25,000 in damages.
Verbal abuse can take many forms. It can take place anywhere in the hospital and among any member of the staff. Although many choose to overlook it, verbal abuse not only can expose the hospital to liability for the actions of its employees and medical staff, it also can affect patient care, say risk management experts.
"These are disruptions to care," warns Alan Steinberg, JD, a partner in the health law firm of Horty, Springer & Mattern in Pittsburgh. "If a nurse who has been so berated keeps dropping instruments, then patient care suffers. If patient care suffers, then [verbal abuse] is a real risk to the facility."
Hospitals that run nursing home facilities -- and a growing number now do so to fill empty beds -- need to be especially aware of the problem. Under a slew of federal and state laws that regulate nursing homes, verbal abuse is not tolerated. Nursing facilities can face fines of $10,000 per day for violating residents' rights, including subjecting them to verbal abuse, says Peter Mellete, JD, a principal in the Richmond, VA, health law firm of Crews & Hancock.
Federal law pertaining to the regulation of nursing homes defines verbal abuse as "any use of oral, written, or gestured language that willfully includes disparaging or derogatory terms to residents or their families within their hearing distance regardless of their age, willingness to comprehend, or disability."1
While verbal abuse can take place at any level, it typically occurs between physicians and hospital staff. At Robert Packer Hospital in Sayre, PA, the risk manager recently drafted a separate policy on verbal abuse after several incidents took place between physicians and staff that required the intervention of a third party, says Lois Allen, RN, CHRM, director of clinical risk management for the hospital. The policy currently is under the review of the hospital's chief executive officer and the medical staff director and is expected to be implemented soon.
The hospital decided to create a policy on verbal abuse because the risk manager was concerned that medical care was being compromised by the behaviors. "People were not sure how to handle it and what could be said," Allen says. "Also, there were instances where people hesitated to call physicians because they knew they were going to be yelled at."
Do you need a specific policy?
Risk management experts differ on whether a policy addressing only the issue of verbal abuse is necessary, or whether such abuses could be addressed under a general conduct policy. The need for a specific policy may be determined by the circumstances at each hospital.
"Unless you have a real problem in your particular hospital or system, you probably don't need a separate policy," says Sandra Johnson, RN, ARM, FASHRM, systems director for Intercoastal Health System in West Palm Beach, FL.
But if staff are so intimidated by a doctor, or a doctor is so intimidated by a staff member that patient care may be compromised or a hostile workplace environment has been created, then a policy should be written to remedy the situation. Failure to do so could make the hospital ripe for a lawsuit, including one for sexual harassment.
Verbal abuse is different than sexual harassment, but failing to have a policy prohibiting such conduct could create the kind of environment that leads to harassment claims. Courts consider the failure to control this preliminary behavior when sexual harassment claims are litigated.
"You have a responsibility to your employees to not have them have to take abusive behavior," Steinberg says. "If it goes into the sexual harassment arena, then you are in big trouble."
Regardless of whether your policy is specific to verbal abuse or generally prohibits abusive behavior, you need to make sure it is applicable to all hospital personnel and medical staff, say risk management experts.
The problem at Robert Packer Hospital permeated all levels of the staff, Allen notes. There were incidents of abusive physicians, nurses, and staff. As a result, Robert Packer Hospital's verbal abuse policy is applicable to all of the hospital's personnel.
'You know it when you see it'
It is impossible and actually inadvisable to try to define every type of verbal abuse in a policy. "If you try to define it and then leave something out, you'll be surprised. Someone will say, 'Hey, you never mentioned kicking,'" says Steinberg.
Instead risk management experts suggest framing the policy in terms of prohibiting disruptive behaviors or respecting other personnel. "Try to give a general idea of what is abusive behavior. This is a you-know-it-when-you-see-it sort of thing," Steinberg says.
Robert Packer Hospital's preliminary policy on verbal abuse describes verbal abuse in terms of "communicating with others with respect," Allen says.
"What we have found to be more important than trying to define [abusive behaviors] is setting up a process that keeps [the complaint] moving forward," Steinberg says. "One that gets it to the attention of the medical staff and hospital leadership."
At Robert Packer Hospital, the policy calls for the aggrieved party to document the verbal abuse on an unusual-occurrence form, which is then given to a specified person, depending on whether the aggrieved party is a patient, staff member, or physician.
The report should be kept in complete confidence to protect all parties involved, especially the aggrieved.
"It is more important to protect the needs of the person doing the reporting," Steinberg says. "You do not want to provoke a confrontation."
All reports should be investigated before a person is accused of violating a policy or disciplined. Investigators should look for a pattern of practice and not an isolated event, Mellete advises, because a one-time incident may not indicate a problem. If the same behavior is repeated more than twice, for example, then that suggests a pattern. All reports should be investigated without a confrontation.
"As a risk management matter, folks are more comfortable dealing with a pattern of behavior unless there is such a strong action the first time," Steinberg says. "Everyone loses their cool every once in a while. It's recognizing a pattern that is important."
If a complaint is found to have merit by the investigating committee, the abusive party should be allowed to make a statement on his or her behalf before any discipline is imposed. It is important that the complaint be kept as confidential as possible in the process.
"It is the hospital leadership's job of balancing the rights and protections," Steinberg says. Instead of placing the complaint in front of the abusive person, he suggests describing the pattern of incidents that have been the source of the complaints, how they have been corroborated, and that the behavior cannot continue.
Document it
If a complaint is found to have merit, risk management experts say it is important to document the behavior and any disciplinary actions taken against the abusive staff member. The documentation also will help support the hospital in the event a lawsuit is filed against it for any disciplinary action taken against the person.
"Document those meetings," Steinberg says. "After you've had the meeting tell the [person] that you will be sending him or her a letter summarizing what happened and what they were warned about. Tell them that they will be receiving a copy and that a copy will be put in their credentialing file."
As reports of verbally abusive and other problematic behaviors become more prevalent among professionals and staff in the health care industry, more and more hospitals are looking into behavioral problems as part of the credentialing process, Allen says. Some experts say cost containment pressures are adding to the prevalence of abusive situations, and they also say that better reporting systems make the issue more visible.
"It's a factor and it is probably one of the most difficult to use to bring a change in the medical staff status because it's tougher to prove," Mellete says.
Not only are hospitals asking other health care facilities for information about problematic behaviors of applicants for medical staff privileges, they also are being asked to provide that information. As a result, thorough investigation of complaints and documentation of the corrective action are taking on added importance.
"Document the problems," Steinberg cautions. "For the risk manager, you want the credentialing file to document what they've been told. If the wrong behavior continues, then you've built a file. If the physician wants to challenge it, that's fine. But you need to document it."
To discipline or to mediate?
Risk management experts agree that the offending behavior must be stopped to protect the hospital, its staff, and patient care. How to stop it, however, remains a matter of preference.
At Robert Packer Hospital, the newly drafted verbal abuse policy calls for a facilitated meeting between the two parties after the complaint has been substantiated. The goal of the meeting is for the parties to discuss the offending behavior and to reach an agreement about how to best manage their future working relationship, Allen says.
She says the offending staff member is also given a strong warning about the behavior and is put on notice that he or she will be subject to discipline if the abuse does not stop.
Other risk management experts say that the warning is all that is necessary. "What we have found is that more often than not it is less a matter of dispute resolution and more a matter of the hospital telling the person the behavior cannot continue," Steinberg says. "You have to be fair. If you do think there has been wrong behavior and a pattern exists, we've found that dispute resolution does not work. We favor setting real clear rules."
A member of the hospital's leadership should sit down with the abusive doctor, nurse, or staff member to discuss the findings and to issue a strong warning about the behavior, Steinberg says. Two people from the hospital's administration should be in the meeting in order to make the dynamic of the hospital's message stronger. The second person also can serve as a witness to substantiate what was said in the meeting.
The first meeting should not be punitive, however. Instead it should be used to discuss the problem, set boundaries, and deliver a warning. If the problem continues, a second meeting should be held with different members of the hospital's executive branch to deliver another warning. The third time, if the abuser is a member of the medical staff, the medical staff management should be brought in to deliver the warning, Steinberg says.
"If it continues, you need to take strong action, because our experience shows that the behavior will continue," he adds.
Risk managers also need to be aware of the relationship between abusive behaviors and state licensing boards. Under many state licensing regulations for nursing facilities, any behavior that results in a citation or certification deficiency that stems from the action of a licensee (an individual) under a state's professional licensing statute, including verbal abuse, has to be reported to that professional's licensing board, Mellete says.
That report could result in a separate investigation into the licensed professional's behavior and ultimately result in the loss of a license.
Other hospital disciplinary action in response to abusive behavior that affects a physician's privileges for 30 or more days also is reportable to the National Practitioner Data Bank, under federal regulations, Mellete says.
Education and support are key
No amount of mediation or discipline -- threatened or actual -- will help solve verbal abuse and other behavioral problems unless the hospital staff know the administration supports them.
At Robert Packer Hospital, the risk manager plans to hold inservices on the policy to encourage people to address problems with their co-workers. "Part of the problem is that people know the behavior goes on, but they are not willing to address it because they have to work every day with those people," Allen says.
Adds Steinberg: "You need to make sure the hospital staff and employees know that there is a policy and the hospital backs it. Your people have to know that if they make reports, they will be protected by the institution."
Reference
1. 42 CFR Section 483.13b. *
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