Long Term Care Employment Issues That Arise in Medical Malpractice Litigation W E B I N A R

Transcription

1 Long Term Care Employment Issues That Arise in Medical Malpractice Litigation W E B I N A R 1

2 Before we get started: Some housekeeping notes Reminder that phone lines are muted Direct your questions to the Chat box (to host/presenters) we ll respond via after the event or at the end if time allows Any questions offline please Sign up for Labor and Employment News OR Long Term Care News at 2

3 Important for HRCI Credits You must be logged in individually both via computer and via the teleconference for the duration of the event in order to qualify for the credits. (Sometimes two attendees will share an office and watch together that will only allow credit for the person who logged in). If you are not, please login now individually to appear on the attendance report. At the end of the seminar, send an to if you need the HRCI certificate. It will be sent after confirmation of attendance. CLE credit is not provided for this event. And now on to our presenters

4 Brian S. Inamine Nancy F. Reynolds N O V E M B E R W W W. L E C L A I R R Y A N. C O M

5 WHY ARE EMPLOYMENT ISSUES IMPORTANT TO MALPRACTICE CASES? Evidence how plaintiff s attorneys use employment policies against employers Notice policies establishing notice of issues Content of policies minimum requirements vs. above and beyond Follow through if you have committed, do it 5

6 HIRING: BACKGROUND CHECKS Criminal background check Mandatory 42 C.F.R (a)(3). Third party checkers & FCRA Written notice to applicant Applicant right to report Applicant right to respond 6

7 HIRING: BACKGROUND CHECKS Positive results Barrier crimes- bodily injuries, robbery, arson, obscenity offenses Racial issues How far back Non-abuse or neglect misdemeanors over 5 years old 7

8 HIRING: LICENSE CHECKS Why do them? 42 C.F.R (a)(3) cannot employ people with state board findings of abuse, neglect, exploitation, mistreatment of residents or misappropriation of property How often should you do them? Malpractice: what you know and what you don t know 8

9 PRE-HIRE DRUG TESTS Legal if fairly applied Be consistent Notice to applicants offer letter; job contingent upon passing test Licensed independent testing facility Positive result, basis for job denial (even if marijuana-friendly states) 9

10 PRE-HIRE DRUG TESTS Cal. Drug Free Workplace Act Policy Federal Drug-Free Workplace Act Plan Disclose Results, Right to appeal Privacy A malpractice issue? 10

11 TRAINING Regulatory requirement 42 C.F.R Train on communication, resident rights, abuse, neglect, exploitation, quality assurance, infection control, compliance, ethics, etc. Litigation Issues with training Content Documentation Abuse training content JOB TRAINING 11

12 JOB STRESS & TRAINING EAP Employee Assistance Program Voluntary EAP Involuntary EAP ADA & FEHA risks Employee deemed to have treated her as disabled Avoid mandatory employee disclosures Avoid penalties or increased premiums Beware of disability discrimination 12

13 JOB STRESS & TRAINING EAP counselor may ask about any physical or mental conditions if : - Doesn t act employer s behalf - Must keep info confidential from employer - No power to affect employment decisions - Discloses this to the employee 13

14 JOB STRESS & TRAINING Where s the malpractice litigation issue? Resident to staff ratios Nature of resident population Dealing with families - training on mindset 14

15 EMPLOYEE MISCONDUCT Theft of resident property Medication diversion Abusive behaviors toward staff or residents Harassment of staff or residents Illegal vs. non-illegal harassment 15

16 RESPONDING TO MISCONDUCT What do you do with the employee? Have written policies Be consistent with written policies Be consistent with prior practices How do you conduct an investigation? Why should I Follow written policies Think lawsuit 16

17 RESPONDING TO MISCONDUCT Interviewing witnesses- be careful. Don t wing it: Have a plan Who are witnesses Order of witness interviews Who will be present What to ask Boundaries Upjohn warning if interviewer is attorney. 17

18 RESPONDING TO MISCONDUCT Interviewing witnesses- be careful. [Cont d] Discrete location Have interpreter if needed Remind witness of anti-retaliation policy Remind witness what he says is confidential but might be disclosed if reasonably necessary Do not have alleged perpetrator in the room Do not ask leading questions Do not give opinions 18

19 RESPONDING TO MISCONDUCT Completing The Investigation Read relevant evidence Reach findings and conclusions Written report? Share outcome of investigation with person who reported the misconduct and alleged perpetrator 19

20 RESPONDING TO MISCONDUCT Acting Upon The Investigation Results No action Discipline Follow written policies Be consistent with prior practices Progressive Discipline? PIP? Termination? 20

21 REPORTING THE INCIDENT Do you have to? 42 C.F.R (b)(5)(i)(B) 2 hours for serious bodily injury 24 hours otherwise Police involvement & litigation issues Crisis intervention plan 21

22 SPECIAL ISSUES: GRANNY CAMERAS Policies: get ahead of it Semi-private rooms issues & limitations Ownership of the videos or tapes; chart document Set up Notice: post outside room Employee responses: train employees Effects on care provided: no change 22

23 SPECIAL ISSUES: EMPLOYEE DRUG TESTING Privacy Is Queen Random vs. Reasonable Suspicion Random Drug Testing - Not allowed except in limited circumstances - Specific profession, jobs - Regulated industries, less privacy expectation - Safety issues 23

24 SPECIAL ISSUES: EMPLOYEE DRUG TESTING Reasonable Suspicion Drug Testing - Less disfavored - Must be based upon reasonable suspicion: evidence indicating drug or substance abuse - How much evidence? In general more than mere suspicion but less than probable cause - What kinds of evidence? Train your supervisors on symptoms of being under the influence 24

25 SPECIAL ISSUES: EMPLOYEE DRUG TESTING What to do with positive test results - Be sure your written policies address consequences of positive drug test results - Basis for discipline, including termination - Again, employee may be disciplined or terminated even in marijuana-friendly states 25

26 TAKE AWAYS Your employment attorneys should be talking to your malpractice attorneys Run your policies by your litigators Your employment policies and whether they are followed can affect litigation 26

27 QUESTIONS? 27

28 Check out our Blogs! LRWorkplacedefender.com for Labor/employment/immigration topics LTCCounsel.com for Long Term Care industry topics Subscribe to receive new posts in your inbox. 28

29 THANK YOU Brian S. Inamine, Esq. 725 S Figueroa St., Ste. 350 Los Angeles, CA (213) Nancy F. Reynolds, Esq Wells Fargo Tower Roanoke, VA (540) CALIFORNIA CONNECTICUT DELAWARE FLORIDA GEORGIA ILLINOIS MARYLAND MASSACHUSETTS MICHIGAN NEW JERSEY NEW YORK PENNSYLVANIA RHODE ISLAND TEXAS VIRGINIA WASHINGTON, D.C. With 320 attorneys in a full range of practices, LeClairRyan is an entrepreneurial firm providing business counsel and client representation in matters of corporate law and litigation. 29

30 Disclaimer This slide show provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this show. This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation, and the recipient. Copyright 2017, LeClairRyan, A Professional Corporation. 30