By Stacy Stauffer, JDProAssurance Sr. Risk Management Consultant
Direct liability means that a person or entity is held responsible for their own or its own acts or omissions. Causing a perforation during surgery or making a medication error are obvious examples where a physician may be held directly accountable for a patient injury. However, physicians and the entities they own and serve may not realize the extensive ways they may subject themselves to direct liability allegations, even when not performing hands-on care or treatment. Everything from negligent facilities management, to improper hiring and supervision, to inadequate policies and procedures may lead to unanticipated outcomes that plaintiffs’ counsel might pursue as a direct liability case.
Direct liability involves acts or omissions committed by an entity or person that result directly in harm, usually to a patient.
“Direct negligence claims against a health care provider-employer include failure to train employees, failure to enforce accepted standards of care, and failure to employ protocols to ensure quality care for patients," a Texas appellate court determined. “Direct liability claims also include allegations of negligent supervision.”
Vicarious liability results when an entity or person is held responsible for the actions or omissions of a third party, where the liability is not based on any improper action by the person or entity. In contrast to a direct liability claim, in a vicarious liability claim an employer faces liability for the actions of an employee, rather than the actions of the employer. However, physicians as principals in their own corporations, and other entities must guard against other lapses in their own behavior and other entities must guard against lapses in behavior occurring outside of patient encounters to avoid patient harm and direct liability allegations.
Both vicarious and direct liability claims arise from a variety of situations. Partnerships, agency/ostensible agency, independent contractors, educational supervision, and the like produce liability claims. Additionally, an individual physician may discover they are considered an entity for the purposes of a lawsuit. Providers may develop a false sense of security when careful and conscientious with their own encounters with patients. They envision guarding against unanticipated outcomes resulting from the acts or omissions of third parties, and vicarious liability.
Health care professionals and entities require vigilance in hiring, supervision, and other oversight to avoid direct liability claims. Staff or other personnel acting beyond the scope of their skills, experience, and education, or even committing crimes, can result in claims directed at the employing entity. In other words, the failure of the employer to act may lead to the injury of a patient.
Examples include failure to conduct criminal background checks; failure to verify training, experience, or credentials; or a failure to heed reports of inappropriate behavior or practices.
A patient with a chronic health condition returns to a clinic expecting to obtain lab results after a blood draw. Such a visit ordinarily lasts approximately 10 minutes and does not include a physical examination. On the day in question a nurse takes the patient’s vital signs and places him in a private exam room. He waits there for the physician, who will discuss the lab tests with him. The patient remains in his street clothes. The physician enters the room with the patient, and they discuss the tests, after which the patient stands to leave, believing the visit is concluded. Explaining to the patient that a physical examination is required, the physician then asks the patient to remove his pants. The patient complies and takes down his trousers. The physician asks the patient to turn his head and cough. As the patient does so and feels the doctor touching his testicles, he realizes the doctor is not wearing gloves for the exam. Moving away from the doctor, the patient tells the doctor she should be wearing gloves. Approaching the patient, the physician tells him she wants to have sex with him. The patient refuses, immediately pulling up his trousers and attempting to leave the exam room. Due to the size of the room the physician holds the door closed as the patient tries to open it, begging him not to report her behavior.
In this case the patient alleged that the clinic negligently investigated and hired, and failed to properly train and supervise, the physician. Additional allegations included failure to provide a safe environment for the patient. Taken together, these allegations formed the foundation of the patient’s claim that the clinic breached the duty and standard of care owed to him. The patient claimed that these failures created increased medical expenses and emotional distress, including humiliation, fear, and physical harm. During the investigation, defense counsel discovered that the physician moonlighted at another clinic at the same time she worked at the clinic in question. Three additional patients at the clinic under investigation and two patients at the other clinic came forward with allegations of inappropriate sexual advances by the physician. The physician admitted to a relationship with yet another patient at the clinic under investigation but claimed she did not realize the person was a patient at the facility and stated the relationship was consensual. The physician denied all the allegations from the other patients at both clinics.
Since the clinic conducted a rigorous background check of the physician prior to hiring, the allegations generated alarm and surprise with management. No chaperone policy existed that might have prevented the inappropriate behavior of the physician. While a code of conduct prohibited any form of sexual harassment of patients, no system monitored whether physicians and staff were required to refresh their familiarity with the policy and acknowledge doing so. Ultimately doubts arose regarding whether the physician was truthful in denials about the behavior. Further, the clinic failed to produce clear documentation showing the timeline for learning of and investigating the allegations, versus when they removed the physician from patient interactions and fired her. For these reasons, defense counsel considered the case too risky to take before a jury, and settlement resulted.
Consider the following strategies:
Conduct complete background checks of any applicant considered for an offer of employment.
Use primary source verification to validate the education, experience, and credentials of all employees.
Maintain an employee code of conduct and have all employees review and sign off on their review at regular intervals.
Take all reports of inappropriate behavior seriously, investigate thoroughly and in a timely manner, and document all steps taken to address complaints.
Create an environment where employees feel safe speaking up and know how to report concerns for patient/employee safety or well-being.
Consider using a chaperone system to protect patients, physicians, and staff.
Consider whether the physical environment is conducive to inappropriate behavior.
Enact protocols to explain procedural touch before making physical contact with a patient, and do not assume that patient silence means consent to procedural touch.
Educate patients to inform you or staff if any process or procedure makes them uncomfortable.
Avoiding direct liability claims might appear simple. Most clinicians and medical entities provide attentive and skillful treatment to patients, resulting in excellent outcomes. However, patient harm resulting in a direct liability claim may stem from circumstances even conscientious providers fail to consider. Certain measures help prevent unanticipated results and demonstrate commitment to the appropriate standards of care. Further, such actions strengthen entity and individual provider defenses in the face of a direct liability claim.
Strenuous hiring protocols
Continual review and updating of policies and procedures
Scanning facilities for dangerous conditions
Knowledge of federal and state regulations and clinical guidelines
Taking a universal view of entity protection
The information provided in this article offers risk management strategies and resource links. Guidance and recommendations contained in this article are not intended to determine the standard of care but are provided as risk management advice only. The ultimate judgment regarding the propriety of any method of care must be made by the health care professional. The information does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about this topic should be directed to an attorney.