Prevent negligent EMS hiring with 3 types of background checks
Conducting appropriate background checks on applicants and personnel is part of how EMS agencies protect patients from harm
By Andrew L. Wood
Recently, it was reported that during an emergency call, an EMT stole a patient’s phone number from her run sheet and began sending her sexual text messages. A subsequent lawsuit was filed which, among other things, claimed that the ambulance service was guilty of "negligent hiring, retention, training, and supervision." Defendants named in the case were the ambulance service, the EMT, and the former EMS director who hired the EMT years earlier.
This interesting case highlights the importance for EMS professionals to understand negligent hiring, retention, training, and supervision to avoid similar expensive, time-consuming, and embarrassing lawsuits.
The idea of negligent hiring revolves around the fact that an employer has the duty to conduct appropriate background screenings on applicants to ensure that the person is fit for duty.[1, 2] In other words, when a person applies for a position with your agency, you have a duty to make sure that the person is not a substantial risk to those around them. There are no hard and fast rules on what should disqualify an employee, but ultimately if you hire an employee with a troubled past, you should be prepared to defend that hiring decision.
When an EMS provider applies to your agency, make sure that you conduct at least these three types of background checks:
1. Certification and disciplinary check
Is the applicant appropriately certified and/or licensed by your state? There is no excuse for allowing a person without a license to be in the back of the ambulance with patients. Most state authorities have a free online database to verify the status of EMS personnel. EMS agencies should be auditing their personnel’s credentials on a regular basis.
Most states also publish a list of EMS personnel who have been or are currently subjected to disciplinary action. EMS agencies have an obligation to check if applicants or current employees have received disciplinary action. State disciplinary action alone does not mean that you cannot hire an individual. However, it is a warning to you that the provider has engaged in significant misconduct.
Therefore, your agency is accepting a significant risk as well when you hire the disciplined provider. The best thing an agency can do is create an "action plan" that provides documentation of remediation and specific steps that your agency will take to mitigate the risk that the provider will engage in similar misconduct.
2. Criminal background check
Does the applicant have a significant criminal history? Most states forbid felons from obtaining certification and/or licensure as an EMS provider. However, sometimes felons slip through the cracks and obtain licensure. If an applicant has a felony conviction then you should consult with the appropriate state EMS authorities to determine if the person is permitted to hold licensure. Most likely, a felony conviction will be an automatic disqualifier from employment with your agency.
Most states do not specifically ban persons with misdemeanor convictions from obtaining licensure. Similarly, it would be unreasonable for an EMS agency to refuse to hire an applicant for having a misdemeanor conviction. However, if a criminal background check reveals a demonstrable pattern of criminal behavior, the EMS agency should shy away from hiring the person.
Likewise, certain misdemeanor convictions, such as minor sexual or drug related offenses, may be an automatic disqualifier from employment. Create a clear policy, approved by your attorney, which specifically outlines what types of criminal offenses disqualify an applicant from consideration for employment.
3. Prior employment background check
Your agency should be conducting prior employment reference checks. While some state EMS authorities require the reporting of certain types of misconduct, you cannot rely on checking the state disciplinary lists to determine if an applicant has engaged in significant misconduct.
If the applicant previously worked for a government EMS agency, it should be relatively easy for your agency to file a request for public records with that public agency to obtain documents related to the separation of the applicant from their employment. If the applicant previously worked for a private EMS agency, you should require applicants to sign a release for records so you can obtain information related to the previous employment. If an applicant refuses to identify prior employers or to sign the information release, then you do not want to hire them.
Does your agency have prepared forms that you can mail to prior employers of applicants? Does your agency have a policy on how to reply to any information requests related to your former employees? If not, work on these action items and consult with your agency’s attorney in doing so.
Agencies have an obligation to conduct substantive background screenings on applicants to ensure that they are suited to be entrusted with a patient’s life and belongings. Ignorance of prior misconduct is not a defense!
To win a negligent hiring claim, the plaintiff must show that your agency had scienter, which means that the employer knew or reasonably should have known that based on prior events that the employee would engage in misconduct. Simply put, if your employee has engaged in misconduct in the past similar to the misconduct that caused the lawsuit to be filed, you should have reasonably known that they were capable of engaging in the misconduct again.
Remember that as EMS professionals, our job is to not only help our patients, but to protect them. The time spent on conducting appropriate background screening on applicants is miniscule in comparison to defending a negligent hiring claim.
About the author
Andrew L. Wood, MS, NRP has taught and worked in EMS settings for more than eight years. Currently, he is pursuing a PhD in Public Safety Leadership, serves as EMS Program Director for Emergency Medical Training Professionals, LLC and is a legal consultant for Cowan Law Office, PLC on employment law, EMS licensure defense, and prosecuting EMS misconduct. He can be reached at firstname.lastname@example.org.
1. Peterson, Donald J. and Douglas Massengill, “The Negligent Hiring Doctrine – A Growing Dilemma for Employers,” Employee Relations Law Journal, p. 410 (1989-1990.)
2. Black’s Law Dictionary 9th ed. 2009