Article updated July 23, 2018
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 texts. 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.
In the lawsuit, it was also alleged that numerous complaints had been filed by the EMT’s coworkers, hospital staff, and members of the public. Allegedly, no substantive action was taken on any of the previous complaints brought to prevent further misconduct.
This interesting case highlights the importance for EMS professionals to understand exactly what is negligent hiring, retention, training, and supervision to avoid similar expensive, time consuming, and embarrassing lawsuits.
The idea of negligent retention and supervision revolves around the fact that an employer has the duty to appropriately supervise its employees and terminate them if necessary.[1] This means that you have a duty to know about any significant misconduct your employees engage in, and if the misconduct is serious enough, you should terminate the employment to protect those around them from future wrongdoing.
Does your agency have appropriate policies implemented to ensure that employees are adequately supervised and disciplined? Implementation of the following policies can help your agency successfully defend a negligent retention and supervision claim:
1. Progressive discipline policies
Your agency should have a very specific policy, approved by appropriate legal counsel, which outlines a progressive discipline process. Discipline is the process of correcting bad behavior with specific methods of remediation and a metric to measure if the remediation is successful.
Documentation of discipline does not stop when you give a “write up” to an employee. Supervisors should submit follow-up documentation that shows, after an appropriate amount of time has elapsed, the remediation was successful.
In a discipline policy, the employer should also outline zero-tolerance offenses which are those that are so egregious that remediation is not possible or appropriate. Supervisors should ensure that they have adequate documentation to support any allegations that an employee actually engaged in a zero-tolerance offense. Whenever it has been substantiated that an employee commits a zero-tolerance offense, you have an obligation to follow the policy and terminate the employee.
2. Mandatory reporting policies
Discipline policies should also include a mandate to all employees that if they have knowledge of another employee engaging in a zero-tolerance offense that they have to report it to their appropriate supervisor. Supervisors have an obligation to investigate each complaint of misconduct, document their findings, and document any corrective action taken as a result of the investigation.
Also, some state EMS authorities mandate that certain types of misconduct be reported for state investigation. For example, in Kentucky KRS 311A.050(3) states that “it shall be unlawful for an employer of a person licensed or certified by the board having knowledge of the facts to refrain from reporting to the board any person licensed or certified by the board who” engages in certain types of misconduct or forbidden activities.
Does your state authority have such mandatory reporting requirement? If so, does your agency have a policy on how to investigate and report such misconduct? Your agency should have such policies and also a policy related to either the suspension or termination of an employee if you have to report misconduct for state investigation.
3. Employee evaluation policies
Does your agency conduct comprehensive formal employee evaluations? If not, how will your agency be able to show that it adequately supervised employees if a negligent supervision case arises? It is imperative that EMS agencies have policies in place that evaluate their employee’s adherence to policies, procedures, and job descriptions.
Traditional evaluations have historically focused on the administrative aspect of an employee. However, it is necessary to conduct clinical evaluations as well.
Conducting chart auditing or quality assurance activities can be construed as clinical employee evaluations. The most important part of conducting auditing activities is documenting remediation when issues are identified. Additionally, your agency should have a policy which outlines metrics to evaluate the clinical competency of its employees. Does your agency evaluate your employee’s clinical skills, such as intubation, in a laboratory setting to ensure competency?
Does your agency evaluate the clinical skills of new employees before allowing them to begin treating patients? If not, how do you plan on explaining to a jury that you adequately supervised employees when one of them engages in malpractice?
Agencies have an obligation to ensure that employees are capable of competently fulfilling their duties. If there is clear evidence that an employee is not competent and remediation has failed or is not appropriate, then an employer must terminate the provider. Under the scienter doctrine, if a plaintiff can show that the employer knew or reasonable should have known that based on prior events that the employee was a risk to others, the employer will be found guilty of negligent hiring and retention.[2] Your agency is responsible to ensure that its employees are not dangerous.
In reality, most EMS providers are outstanding professionals. Implementation of discipline, reporting, and evaluation policies can not only help prevent a claim of negligence, but it can also help improve the quality of care of all providers. We all should welcome employee performance evaluations because it helps us identify our weak areas so we can improve our methods to better serve our community.
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 alwood@cowanlawky.com.
References
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