Negligent Hiring
By
David Barmak, JD CEO
Healthcare providers, as employers, are subject to direct liability for the negligent hiring, retention, or supervision of their employees when third parties are injured by wrongful acts of unfit or incompetent employees. In order to succeed during a lawsuit, the injured party must show that the employer knew, or in the exercise of ordinary care should have known that its employee’s conduct would subject third parties to an unreasonable risk of harm.
When a resident has been injured as a result of the negligent or intentional conduct of a certified nursing assistant or nurse (collectively “caregiver”), one possible ground for a lawsuit against the healthcare provider is the provider’s negligence in hiring or retaining an incompetent caregiver. Such a claim is based upon the independent negligence of the provider itself. In other words, the claim is that the provider was administratively negligent in hiring an incompetent caregiver.
There are a number of types of incompetence that may be alleged in these types of lawsuits. If physical or sexual abuse is involved, the provider may be liable if it knew or should have known of the caregiver’s tendency or history toward such conduct. Injuries to residents may also result from the failure of an incompetent caregiver to provide proper instruction or from lack of proper and adequate supervision. A caregiver, and consequently a provider, may be determined to have been unfit where the caregiver was unable to properly maintain control of a resident’s behavior that leads to the resident’s injury. If, however, there is no evidence that the caregiver was incompetent or where there is no connection between the alleged incompetence and the injury to the resident, then there should be no liability to the provider. Providers owe a duty of care to their residents; however, providers are not insurers of their resident’s safety and are not obligated to provide residents with constant and complete supervision unless it is necessary and noted in the care plan.
Healthcare providers must very carefully screen applicants, through pre-employment investigations, for caregiver employment to ensure there are no skeletons in the closet (abuse, theft, etc.). A jury will be unforgiving if a criminal background check that only costs a few dollars could have prevented an ultimate injury to the resident.
The other critical factor is that if an applicant is hired and deemed at any time to be incompetent, it is crucial that the provider terminate that incompetent employee’s employment immediately after remedial efforts prove unsuccessful. To continue to employ an incompetent caregiver after all reasonable efforts to rehabilitate have failed will be viewed by a jury as unconscionable and result in liability for the provider. On the other hand, providers must exercise caution because they may incur Page 1 legal liability if the pre-employment investigations utilize discrimination, fail to protect third parties from liability, or invade privacy interests.