Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Hiring a potentially bad apple

Q:A physician I'm thinking about hiring is well qualified, but one of his references noted that his history includes some question of mental illness and a sexual misconduct claim by a patient. Would hiring him increase my liability?

A: Probably. An employer can be liable for negligent hiring and supervision. You'd be especially at risk because you know about the employee's past behavior.

In a recent Alabama case, a hospital hired a male nurse under somewhat similar circumstances. Later he allegedly molested a young child while her baby sister was under his care. The family brought many claims, including one against the hospital alleging negligent supervision.

The nurse's history included a diagnosis of bipolar disorder, and the hospital employment record was replete with reprimands for inappropriate behavior. But most of the reprimands were for being argumentative; none mentioned sexual abuse. Moreover, the defendant's co-workers at the hospital characterized him as a highly competent nurse.

An appeals court held that the family had a right to sue the hospital. Based on the nurse's employment record, the court said, a reasonable jury could have found that the assault was foreseeable and held the hospital negligent in failing to prevent it. Similarly, because you are aware of an allegation of sexual misconduct, you as the employer would likely be a defendant in any claim of negligent supervision.

Tread carefully in your hiring decision, however. Although employing someone who's emotionally or sexually dysfunctional could subject you to liability, not hiring someone with a mental illness (or dismissing an employee with one) can lead to an Americans with Disabilities Act claim. The ADA forbids an employer to discriminate against a prospective or current employee who's disabled but is qualified for the job and can perform the essential functions with reasonable accommodation.

So, unless it's substantiated, one problematic reference shouldn't automatically deter you from hiring the doctor. Talk to the potential employee about the issues mentioned in the history before making your decision.

If you do decide to hire this doctor—or anyone else with emotional or sexual problems—clearly warn him or her about your practice's policies and document in the personnel file that you've done so. Then monitor this person's behavior as closely as possible. If the employee is a male physician, insist that a female assistant be present for examinations of female patients.

Your responsibility will be greatest if the employee constitutes a threat to the safety of others. The trouble is, determining when that's the case can be difficult. Once safety clearly becomes an issue, though, you can discipline or terminate the employee, even if the behavior is caused by the disability. Be sure to take appropriate action as soon it's warranted.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;2:80.