A successful and highly respected pediatrician with an unblemished record over decades of practice learns of a HIPAA breach by a member of his clerical staff. After an investigation reveals the employee is a repeat offender, she is terminated. Imagine the physician’s reaction when the employee’s attorney not only initiates a wrongful termination suit but also alleges retaliation, claiming the employee rebuffed sexual advances from the doctor.
To gain additional leverage, the former employee’s attorney submits a complaint of sexual harassment with the medical board and has the plaintiff file a criminal complaint about sexual battery. The attorney also sends a letter to the medical executive committee of the principal hospital where the doctor admits patients, resulting in a peer review investigation. Finally, the former employee blankets social media with an aggressive smear campaign.
This example demonstrates that healthcare providers are not immune from the growing number of reported incidents of alleged sexual harassment in the workplace. Accusers may be employees, patients, third-party vendors or visitors. Individuals alleged to have acted inappropriately may include co-workers, both supervisors and subordinates, professional staff—and even patients.
Repercussions of Harassment Claims
Shortly after complaints are filed, costly and potentially embarrassing investigations are often conducted by law enforcement, human resources departments, and administrative agencies. Depending on the nature and scope of the findings, serious adverse consequences and often irreparable harm to a person’s reputation may follow, including:
- Criminal prosecution.
- Civil litigation with the potential for substantial damages.
- Licensing board actions that may impose limitations on an individual’s continued privilege to pursue his or her profession.
Adopt and Enforce Zero Tolerance
Given the risks, heightened awareness, and increased scrutiny, healthcare practitioners and facilities are strongly encouraged to develop and consistently enforce a zero-tolerance policy. Protocols must be written, periodically reviewed, and updated as necessary, detailing:
- The types of conduct that will not be tolerated, regardless of the identity of the alleged perpetrator.
- A clear methodology for reporting claimed instances of wrongdoing.
- The process to be followed in investigating complaints, and rules that should be observed to help ensure that confidentiality and due process are appropriately protected.
- Documentation to be completed and maintained.
- The range of sanctions, up to and including termination, for both employees and patients, should the allegations ultimately be determined to be true.
Staff should receive proper training as part of the on-boarding process of each new employee and on a regular basis thereafter. Offices should develop and retain attendance sign-in sheets of such training in the regular course of business to demonstrate, in the event of a subsequent problem, the good faith, and due diligence as continuing efforts of the clinic, provider or facility to comply with federal and state requirements.
It is recommended that healthcare facilities, clinics, and other professional offices institute a process of publishing their zero-tolerance policy towards harassment. This can be achieved in employee onboarding documentation, professional employment contracts, conditions of treatment or admission, third-party vendor agreements, website notices, and even office signage.
Be Sure You’re Covered
Healthcare providers are also strongly encouraged to consult with their personal or corporate attorney to understand the potential financial risks of claims involving allegations of sexual harassment or misconduct. They should then confer with their insurance agent or broker to determine proactively what coverages might be available in their respective states to protect the provider in the event of such a claim.
Policy language and state regulatory requirements often vary from jurisdiction to jurisdiction. Most practitioners carry professional liability coverage in the event of a claim for medical malpractice. Not uncommonly, however, medical professional liability policies specifically exclude coverage for acts of sexual misconduct committed by a physician against a patient. Depending upon the professional liability carrier, the physician may be provided with a courtesy defense covering the costs of legal fees and expenses, but no payment for any indemnity incurred in the event of an adverse jury verdict.
It’s also prudent to consult with insurance brokers and agents about the availability of Employment Practices Liability Insurance (EPLI). EPLI may provide coverage for certain types of workplace harassment, which may include sexual misconduct involving the policyholder and an employee.
And finally, claims of inappropriate sexual behavior against a physician or other licensed healthcare practitioner may result in administrative proceedings by a state medical board or the privileges committee of a hospital or other facility regulated by The Joint Commission. Endorsements are widely available as part of medical professional liability policies to pay legal defense costs in the event of an investigation or subsequent disciplinary hearing.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.
Richard Cahill, JD
Richard Cahill is Vice President and Associate General Counsel for The Doctors Company. Mr. Cahill provides legal support to the Claims and Patient Safety Departments. He has specialized in various facets of healthcare litigation for more than 25 years, including the defense of hospital and physician professional liability claims, managed care contract disputes, and related business torts. His principal clients have included Cigna, Kaiser Permanente, and Tenet Health Systems. Mr. Cahill has completed in excess of 175 trials and binding arbitrations during his career and has been appointed as an arbitrator in more than 350 cases involving healthcare issues.
Mr. Cahill received his undergraduate degree summa cum laude from UCLA in 1975 and his juris doctor from Notre Dame Law School in 1978. He lectures frequently around the country on topics related to the healthcare industry. He has an AV Preeminent Rating from Martindale-Hubbell.