What if employee is guilty but hospital not at fault?
Question: Our legal staff is in disagreement over the best course to pursue when a hospital employee apparently is guilty of a serious crime at the hospital, but by most accounts the hospital could not have prevented the act. Do we just stress that fact and refuse to pay, or do we get more involved and try to settle the case?
Answer: Whether the hospital is truly liable for the employee’s crime may not be important in the public’s mind. For that reason, you should consider taking all necessary steps to diminish the publicity and damage that could occur, advises Charles Baggett, ARM, FASHRM, director of risk management at Mount Sinai Medical Center in Miami Beach, FL.
Baggett cites an example of a recent high-profile case in which an employee at another hospital was charged with raping a semiconscious patient in a postoperative recovery room. In a case like that, there may be room to debate whether the hospital should have exercised more caution in terms of background screening and security. But even if it seems clear that the hospital was not at fault, the inflammatory nature of the crime means your facility will receive tremendous publicity.
"The employee may just be a loose cannon, but the public still sees the hospital as responsible," Baggett explains. "It’s futile to keep saying it’s a criminal act, not within the scope of his employment, and the hospital didn’t do it. The camera crew still is going to use your hospital as the background every time they report the story."
For that reason, Baggett advises against taking an inflexible stance by insisting the hospital is not at fault no matter how true that is. The money you have to spend on the case may turn out to be far less than the cost of the damage to your public reputation if you let the case drag on.
It is acceptable to state publicly that the employee was a loose cannon, but don’t leave it at that. Do what is necessary to make the case go away.
"You may have no liability, but you may have to throw a ton of money at it to settle the case. That’s a tough reality of life," Baggett explains. "Try very hard to settle that case and not put it in front of a jury. They’ll kill you."
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