Negligent retention or hiring: Bigger verdict?
If a plaintiff sues not only a physician but also the physician group that contracts to provide services at the hospital, the plaintiff might argue a negligent hiring or negligent retention theory, says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods.
According to this argument, the physician group owes a duty to patients to exercise due care in selecting physicians entrusted with the responsibility to care for them, he explains.
When a plaintiff perceives that an injury has occurred at the hands of a physician group's employee, the plaintiff might allege that the physician group knew or should have known that the employee was incompetent or unfit, says Karen B. Everitt, BSN, JD, regional vice president of risk management at ProAssurance Companies in Birmingham, AL. The plaintiff might allege that the physician group should have never hired the employee or terminated the employee before the injury occurred.
The plaintiff attorney could argue that the group should not have hired the physician named in the suit due to multiple previous suits as a result of misdiagnoses, disciplinary actions, or licensing difficulties, for example. "The argument is that because you were careless in the way you handled [the background check], I have a claim against you," McMenamin says.
Avoid allegations
Everitt gives these risk-reducing strategies to avoid a negligent hiring allegation:
- Obtain a copy of the candidate's licenses and/or certifications from the original source.
- Run the candidate's name through the Department of Health and Human Services Office of the Inspector (OIG) General List of Excluded Individuals and Entities, which lists individuals who cannot participate in federally funded healthcare programs due to Medicare or Medicaid fraud, patient abuse, and certain felony convictions. (The OIG's online searchable database used to enter the name of an individual or entity and determine whether they are excluded is at http://oig.hhs.gov/exclusions.)
- Find out if the candidate is registered in national and state sex offender registries. (The website for the Dru Sjodin National Sex Offender Public Website is nsopr.gov.)
- Validate competency at the beginning of the employment relationship, and annually re-evaluate competency, especially in clinical skills.
To prove that a physician group negligently retained the employee, the plaintiff must show the jury that the employee had conduct or tendencies that would have been apparent or discovered if the physician group had exercised reasonable care when hiring the employee, says Everitt.
In some states, negligent hiring is not included as an allegation under the state's medical malpractice act, she adds. The negligent hiring allegation gives the plaintiff an avenue to seek a higher verdict than available under some state medical malpractice acts, because damages from a negligent hiring action wouldn't be subject to state medical malpractice caps, Everitt says.
If a claim is filed for negligent hiring, depending on state law, the defendant might be able to argue that there is no cause of action for negligent hiring if the doctor is an independent contractor and not an employee, says McMenamin. "The defendant could argue that the prejudicial outcome of discovery of the doctor's personnel file, for example, would greatly outweigh its probative value, since the theory is that on this particular occasion Doctor A breached the standard of care, and it doesn't matter what he did the previous week, the previous month, or the previous year," he explains.
The defense argument would be that the jury should not be distracted by the physician's previous problems, when the real question is, "How did he perform on this particular occasion?" says McMenamin.
Sources
For more information on negligent hiring and negligent retention theories, contact:
- Karen B. Everitt, RN, JD, Regional Vice President, Risk Management, ProAssurance Companies, Birmingham, AL. Phone: (205) 802-4703. Fax: (205) 414-2805. Email: [email protected].
- Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1015. Fax: (804) 698-2116. E-mail: [email protected].
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