What is Negligent Hiring?

A child presented to the ER with flu-like symptoms, chest pain, and shortness of breath. After being evaluated by the ER physician, she was discharged with a diagnosis of viral syndrome and instructed to return to the ER if symptoms continued or worsened. One day later, the child experienced sudden heart failure due to myocarditis, resulting in her sudden death.

Medically the case was defensible, as the ER physician’s care was within accepted standards of care. However, the facts surrounding this incident were not the only factors that complicated the case.

During discovery, it became known that physicians had a history of prior questionable medical decision-making. There were also complaints of improper prescriptions and discipline from the board of medicine. These factors became significant when considering the physician’s medical decision-making for the patient in question.

When these facts were brought to light, the parents amended suit, alleging that the hospital was negligent in hiring the provider, making them responsible for the child’s poor outcome. The court allowed these allegations to be added to the lawsuit, which was ultimately resolved before trial.

The Hiring Process Is Complex

Medical malpractice cases are typically complex and negligence can fall in several areas of patient care: Delayed or missed diagnosis, incorrect clinical decision-making, delay in treatment, delay in consultation, surgical errors, prescription errors, systems issues, and others. Typically the treating providers, specialists, and nurses can all be held responsible in cases of negligence. However, hospitals are now getting increasing scrutiny when assessing liability.

The hiring processes for hospitals are becoming increasingly complex. Now there are multiple clinical providers in addition to doctors: Nurse practitioners, physician assistants, pharmacists, and social workers are also clinical providers that require vetting and credentialing. Each of these providers also have their own quality standards granted by their regulatory bodies. The credentialing process has new standards as well, with each specialty changing its requirements every few years. Additionally, there is a requirement to re-credential physicians who are already on staff.

Adding to these factors, social media data is now also expected to be considered as part of the credentialing process. Employers must now consider social media and blog posts in the hiring process.

When Hospitals are Liable

When a hospital is held liable for the actions of a provider, it is called vicarious liability. Vicarious liability holds the hospital liable under the theory of “respondeat superior”, which holds employers liable for employees’ actions. Negligent hiring cases occur when employers knew, or should have known of a provider’s risky background and if that risky background was the cause of the injuries.

During the hospital process, this means that hospitals must have systems in place to screen an application and investigate relevant areas of their practice, including their education, licensure, board certification, training, and peer review and outcomes data.

If a hospital fails to screen an application and the treating provider causes harm to a patient, the hospital can also be held vicariously liable for negligence in its hiring practices. This may involve clinicians who are directly employed by the hospital as well as providers who have privileges to see patients or perform surgery at a hospital but are not directly employed by the hospital (contractors).

The Importance of Foreseeability

One important aspect in the case of negligent hiring is foreseeability – whether the employer should have been able to foresee if the employee was a threat to engage in dangerous contact. In these cases, defendant hospitals can be liable for negligent granting privileges to a provider if they knew of the provider’s risk of causing harm or if a reasonable investigation would have discovered the risk.

How Hospitals Can Reducing Hiring Risk

Verify: Prior to employment, the hospital should ensure the credentials of providers are accurate including education, residency and training, board certification (with passing scores verified), and verification of continuing medical education requirements. On average less than one out of five hospitals investigated all of these areas.

Investigate: The hospital should investigate prior areas of employment and take special note of any disciplinary actions taken against the provider. They should also have clinical and surgical ability as well as any medical decision-making concerns. Non-clinical issues and character issues are also important to consider.

Background Check: Important areas to check include professional references, criminal background checks, and the National Practitioner Database. Scanning social media sites such as LinkedIn, Facebook, and other sites is often overlooked but a frequent red flag in hindsight.

Ongoing Reviews: The hiring process shouldn’t be a one-time process. Hospitals should conduct at least a yearly review with all staff members to review performance.

With the added complexities in the hiring process, expect more hospitals to be named in lawsuits for negligent hiring. The complex process of hiring, credentialing, and credentialing has made this a much more cumbersome – and risky – process than in years past. Hospitals will need to employ improved processes and vigilance to ensure their vetting process is compliant and minimizes risk to the organization.

Dr. Vipul Kella, MD MBA is a practicing emergency physician in Washington D.C. He has been retained in hospital administration, emergency medicine, nursing homes, and forensic cases across 30 states. drkella@medlegaldvisors.com

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