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• President Bush Signs ADA Amendments Act. On September 26, 2008, President Bush signed the Americans with Disabilities Act Amendments Act into law. The ADAAA dramatically liberalizes the definition of "disability" by, among other things, providing that (1) an individual’s “disabled” status must be considered without reference to the availability of mitigating measures; (2) creating new “major life activities” and an entirely new list of “major bodily functions” that, if substantially limited, will result in a finding of disability; and (3) expressly providing that medical conditions in remission or dormant states may still render the individual disabled. The ADAAA was a result of a compromise between disabled rights groups, on the one hand, and business and employer groups, on the other. Among the latter were the U.S. Chamber of Commerce and the Society for Human Resources Management. The ADAAA takes effect January 1, 2009. In the meantime, because the effect of the ADAAA will be to transform a much larger segment of the population into “disabled,” health care employers should be sure that their human resources and operations management are well-trained on the ADA’s non-discrimination provisions and on how to effectively respond to requests for reasonable accommodation.
• Comment Period Ends for DHHS Proposed Regulations on “Conscientious Objection” in Health Care Industry. The U.S. Department of Health and Human Services says it received an unusually high number of comments about its proposed regulations allowing physicians, students, and health care workers to “conscientiously object,” for religious or moral reasons, to performing or assisting in the performance of certain medical procedures, including induced abortions and sterilizations. The regulations also provide that health care entities (such as religious hospitals) that refuse to perform these procedures on religious or moral grounds cannot be discriminated against with respect to academic accreditation or the receipt of federal funds. Among those objecting to the proposed regulations were the American Hospital Association and two members of the U.S. Equal Employment Opportunity Commission (acting on their own). Among those supporting the proposed regulations was the American Center for Law and Justice.
• Nurses’ “Safe Staffing” Buttons Not Disturbing to Patients, Court Finds. Although restrictions on union buttons or insignia outside a hospital’s immediate patient care areas are presumptively invalid, the Supreme Court has ruled that special circumstances may justify restrictions on insignia if “necessary to avoid disruption of health-care operations or disturbance of patients.” In Washington State Nurses Ass’n v. NLRB, the U.S. Court of Appeals for the Ninth Circuit rejected the employer’s contention, which had been upheld by the National Labor Relations Board, that “special circumstances” justified a rule by Sacred Heart Medical Center preventing its nurses from wearing buttons that read “RN’s Demand Safe Staffing.” The NLRB had concluded that a reasonable person would construe the “Safe Staffing” button as a claim that the hospital’s staffing levels were unsafe and that such a claim was likely to cause unease among patients and their families, and disturb the tranquil hospital atmosphere necessary for successful patient care. However, the Ninth Circuit called this assertion “speculative at best,” and noted that no disturbances had actually occurred even though nurses had been wearing the buttons for several months before the hospital banned them.
Every Tuesday night, millions of Americans watch the primetime hit show House, which follows an abusive but brilliant doctor in his shocking escapades with patients and staff, while the hospital ignores his behavior. Although the show is fictional, the doctor’s misadventures are based in reality.
Physicians, whether they are employees or independent contractors, generate significant income for the hospitals and health care facilities where they work. This sometimes, unfortunately, means that their bad behavior is tolerated and condoned by hospitals and other health care providers – even when it constitutes illegal harassment.
OPEN YOUR WALLETS
Health care employers are increasingly paying for the consequences of their physicians’ misconduct. In 2003, the Lutheran Medical Center in Brooklyn paid $5.4 million to settle a class action sexual harassment claim based on the behavior of one physician. In 2005, in Dunn v. Washington County Hospital, the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin) held that a hospital could be liable for a physician's conduct, even if the physician was not an employee of the hospital. Very recently, a federal court in North Carolina denied summary judgment to a health care provider whose chief of surgery was having an extramarital affair with an operating room nurse. The happy couple cut up at work in ways that were offensive to some of the other staff in the operating room, and when the plaintiff complained about it, she was allegedly told to do “anything she could to make the doctors happy.”
Even when health care employers win, they lose. A study reported in a recent edition of Business Week found that employers spend an average of $100,000 in legal fees before a suit can be dismissed at summary judgment, and $300,000 or more to take a case through trial and appeal. These figures, of course, are based on employer victories, so they do not include the additional (and often substantial) cost of a judgment for the plaintiff. Moreover, under most of the federal anti-discrimination laws, a prevailing plaintiff is entitled to recover his or her own attorneys’ fees, which may be another $100,000 to $300,000.
And the accused physician may find that liability insurance does not cover this type of “event,” meaning that he or she will also face significant defense costs and the possibility of an adverse judgment that will have to be paid out of the physician’s own pocket.
“THOSE LOVELY INTANGIBLES”
In addition to the sheer expense, there are also numerous non-monetary costs associated with being named in a sexual harassment suit. First, there’s the publicity. With all due respect to P.T Barnum, not all free press is good. One highly publicized incident could destroy all the community goodwill that the health care defendant has worked so hard to obtain.
Physicians accused of sexual harassment may face revocation of their licenses to practice, or even criminal charges – particularly if the victim is a patient. In the past few years, doctors in Alabama and Texas have been criminally charged with sexually abusing patients. In Washington state, a physician was recently sentenced to 20 years in prison. But the victim does not have to be a patient: in 2004, a physician in West Chester, Pennsylvania, was criminally charged with indecent assault, harassment, and false imprisonment for fondling a nurse.
To avoid all of these negative consequences, every health care employer should take complaints of harassment and misbehavior seriously, no matter who the alleged harasser is.
A BATTLE PLAN
The first step should be taken before that grenade of a harassment complaint even thinks about exploding on your desk. You should develop a plan to prevent and, if necessary, deal with alleged physician misbehavior. This should include a policy statement that verified harassment will not be tolerated, no matter who the harasser is. You should provide training to make sure that your staff understand that the organization’s position is not to “do whatever it takes to make the doctor happy.” Of course, any staff physician and any physician with privileges at your institution should be aware of the policy, too.
You will no doubt get complaints despite your best efforts to prevent harassment. It goes without saying that all allegations of harassment (whether sexual or otherwise) should be promptly and thoroughly investigated, and that appropriate action should be taken. Here’s what that really means:
(DISCLAIMER: Because this article is about physicians who harass employees, the rest of this article will refer to the “accused party” as a “physician” and as a male, and the complaining party as a female. Obviously, many physicians are women, and both men and women, and physicians and non-physicians, can be victims of workplace harassment.)
First, interview the complainant. Explain that the complaint will be taken seriously, that you’ll conduct a thorough investigation before reaching any conclusions, and that she will not be retaliated against for making the complaint.
In the interview, elicit specific details regarding the alleged harassment. Ask open-ended questions to get as much information as possible regarding
• the type of conduct that occurred,
• how frequently the conduct occurred,
• exactly what was said or done,
• where and when it occurred,
• where on her body the complaining party was touched (if applicable),
• whether the physician would say that the complainant “led him on” or
“was a willing participant,” and (if so) why he might say that.
It is also helpful to get the specific context in which the conduct occurred, including what led to the incident (for example, did the physician tell an off-color joke where everyone else was telling such jokes, or did his behavior come from out of the blue?). Get the name of anyone who might have been a witness to the behavior. Request any other evidence that might be relevant to the allegations, including things like e-mails or gifts. Find out how the complaining party would like to see the situation resolved.
At the end of the interview, remind the complaining party that the interview will be kept as confidential as possible, but do not guarantee complete confidentiality. Make sure that she understands that the complaint will have to be shared with the physician and potential witnesses, but that all persons interviewed will be told to keep their interviews strictly confidential. In addition, make clear to her that the physician will be strongly admonished not to speak to her (unless necessary for patient care) or retaliate against her in any way. (If the allegations are severe enough, the physician may have to be suspended pending the end of the investigation.)
Next, you should normally interview the physician and get his side of the story, following essentially the same protocol. Be sure that he understands that he is to have no contact with the complaining party until the complaint has been resolved. This is for his protection as well as hers: it will prevent his being the subject of a fresh allegation of harassment. Then interview the witnesses identified by both parties. The physician and the witnesses should understand that any breach of confidentiality will be ground for discharge or (if applicable) suspension or revocation of privileges.
It is also helpful to review the personnel file of the complaining party and any files of the physician to see whether the complaining party has a motive to fabricate a complaint, or whether the physician has been accused of misconduct in the past. Depending on the situation, you may also want to get written statements from all of the individuals interviewed.
Once all of the evidence has been gathered, you will have to make your best determination as to what really occurred. You may want to consult with either your in-house or outside counsel at this point, if you have not done so already. You should not side with the physician just because he may be “harder to replace” or “worth more” to your organization. On the other hand, you should not jump to the conclusion that the physician is guilty, just because he’s relatively powerful and has deep pockets – those deep pockets can make him vulnerable to false complaints of harassment. Instead, your conclusion should be based on nothing but the evidence that you have been able to gather.
Once you have made your determination as to what happened, you will have to take action that is appropriate under the circumstances. If the harassment was an off-color joke, a reprimand may be sufficient. At the other extreme, if there was a rape or sexual assault, you will want to take severe action against the physician (possibly involving law enforcement and appropriate licensing boards). In addition, you will want to ensure that the complaining party gets all the help she needs, such as medical care and counseling. Situations that fall between these two extremes are varied, and the appropriate action will depend upon the circumstances.
Even if you determine that no harassment took place, you should share your conclusion with the complaining party and the physician, and thank them for their cooperation in the investigation. Be sure to thank the complaining party for coming forward, even if you found that her complaint was not valid. If your investigation is inconclusive, share that with both parties, remind them of your no-harassment policy, and thank them for their cooperation.
Except for any formal discipline, your documentation from the investigation should be kept in a separate Human Resources file, not in the employees’ personnel or the physicians’ files.
Finally, continue to follow up with the complainant to make sure that she is satisfied with the investigation and outcome, and to make sure that no further incidents have occurred. Document each follow-up and the results. Of course, if the complainant says that the harassment is continuing, you will have to start the entire process again with respect to the new allegations.
As the Wall Street mess has shown us, business decisions with short-term financial benefits may create long-term negative consequences. The same goes for ignoring allegations of harassment and inappropriate conduct by physicians who are large revenue producers. At some point, the cost of litigation, the loss of public goodwill, and the cost of an adverse verdict may overshadow the short-term financial impact of the individual’s talents. Sometimes, you just have to clean the House.
SOURCE: Data from Cornell University School of Law and Hofstra Journal of Labor and Employment, reported in Business Week. Chart shows costs in defendant’s attorneys’ fees from inception of employment lawsuit through appeal. Does not include adverse judgment or plaintiff’s attorneys’ fees.
SOURCE: Same as above. Figures are based on 10,000 employment lawsuits between 2002 and 2005.
If that’s not a legitimate, non-discriminatory reason for discharge, what is? The U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, Texas) affirmed summary judgment in a sex discrimination lawsuit brought by a pathologist. As evidence of discrimination, the doctor had alleged that her supervisor had said she had a reputation as a “streetwalker” and had financed her education in that manner. The court found for the employer, though, which claimed to have terminated her for numerous misdiagnoses. In one case, she changed a diagnosis of breast cancer from “negative” to “positive” but did not tell the patient’s physician. In another case, she misdiagnosed rectal cancer and did not inform the treating physician of her error until after the patient’s rectum had been surgically removed.
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.