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Vicarious Liability in Healthcare Hiring

Patients are getting hurt by the negligence of poor hiring, as well as, facilities are accepting more risk when they hire independent contractors that are not clearly identified as a separate entity. These issues need to have awareness and needs resolutions to not only help prevent patient injury, but to help prevent your facility from being sued.

A facility can be held responsible for hiring someone not capable of performing the duties needed for a particular position even in large corporation settings. If a facility did not have appropriate training completed for the individual or they hired someone who does not have the proven skill set needed for the position, the corporation or facility can be held liable for patient injuries through vicarious liability.

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury, but who has a particular legal relationship to the person who did the act. In a healthcare environment, it has a unique definition and anyone operating treatment in a healthcare setting needs to fully understand vicarious liability.

All healthcare facilities can be held responsible for what their employees do or fail to do. When a facility has the, “right of control,” for their employees, the facility has vicarious liability for negligent actions caused by their employees for patient injuries. This means you have the right to control the details and manner in which the employee works. If a right of control is established, then you indeed have vicarious liability in a case of an injury to a patient due to negligence.

All healthcare facilities can be held responsible for what their independent contractors do or fail to do. An independent contractor is not an employee and regulates their own practices; however, through an ostensible agency, your facility can be held liable. An ostensible agency is an appearance this contractor works as an employee for you and there is no clear understanding or proof they are hired independently in the eyes of the patient.

In order to help fully protect your company and to increase the quality of care for your patients, I have listed some tips below.

1. Do not hire anyone in a position to be responsible for the safety and care of patients who do not have the proven skill set and record to meet the requirements of the position…. period.

2. Keep politicking and favoritism out of the qualifications to hire, only hire on a true skill set that has a proven track record. Stay ethical.

3. Take a proactive approach to fully investigate the track record and history of anyone you are putting in a position to be responsible for the safety and care of patients by conducting quantitative and qualitative research before hiring.

4. Do not only take a potential employee’s word they have the skill set. Call their previous employers or ask around your networking community to get feedback on the person's reputation and work history. More times then not, a bad hire will have a history performing poor work that resulted in the injury of patients.

5. If you do hire someone without the skill sets, assign a supervisor to be fully responsible for their training and implement a strict supervision plan with documentation they indeed completed and passed all training requirements for a reasonable period of time under that supervision.

6. Have all your patients sign a document stating they understand the independent contractors at your facility that is servicing them is indeed an independent contractor and not an actual employee of your facility.

7. Make sure you or your practice has professional liability coverage not only for the physician personnel, but for any nursing and other non-physician personnel in the office.

8. Have a strict and detailed physician credentialing system completed and reviewed regularly or at least every 2 years.

9. If injury continues to happen under the supervision of an independent contractor or employee, remove the contractor or employee from their position. Keeping them in the position after serious continued injuries will be strong evidence against your facility for vicarious liability claims and even vulnerability for class action lawsuits.

Even though these are not all of the strategies, I find these strategies the most important. Also, there is no way to completely avoid getting sued even if you have evidence of training completed; however, reviewing your strategies can help. If you need more information or want to schedule a risk assessment review or need a qualitative employee investigation report, reach out to us, we are more than happy to help.

Till Next Time,

Mel K

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