Unfortunately, not every employee hire works out the way the physician, dentist, hospital administrator or medical or dental office manager envisioned. Sometimes a medical or healthcare staffer is terminated because of a single egregious act, but more often, it’s a series of less serious, but continuous incidents or subpar performances.
In today’s litigious society, all employers—particularly those in the medical, dental or other healthcare industry—must be particularly careful to avoid allegations of defamation of character, breach of contract, constructive discharge, or discrimination, which are some of the more common grounds for wrongful termination suits. In addition, employees who have been terminated for cause frequently file for unemployment benefits and challenge the basis for the termination.
As a Denver, CO area attorney who represents medical, dental and other healthcare professionals, I have been contacted by clients who have properly terminated an employee “for cause”, which normally precludes the payment of unemployment benefits.
These employers often find themselves responding to claims by the terminated employee to the Department of Labor that they were wrongfully terminated or were not terminated for cause. Employers who do not fight these false claims will face a higher unemployment premium paid to the state and the former employee may try to use the claim to support litigation for wrongful termination.
I am also often asked by doctors and administrators whether or not they have enough to terminate an unwanted employee without the risk of winding up on the receiving end of a viable wrongful termination suit. While it’s not always easy to determine how a judge or jury would potentially side in these cases, employers can strengthen their position by consistently adhering to a few prescribed practices.
Terminating Healthcare Professionals – Documentation
- There is an old adage among physicians: “If it isn’t in the chart, it didn’t happen.”
- Similarly lawyers say: “If you didn’t write it down, it didn’t happen.”
As an employer, you should be thoroughly documenting any counseling or corrective action that you or your staff have taken with an employee. This practice should be adhered to in all instances and in a consistent manner for each employee.
For example, if you have an employee who is frequently late, not only should you document the dates and duration of the tardiness, but also any discussions that you had with the employee about it. In addition, you should treat your employees equally, and consistently document issues or problems for all your employees.
Documentation will help you bolster your legal defense if your former employee claims that he or she was terminated without warning. Furthermore, if the employee is aware of the documentation, it may make him or her think twice about making a claim of wrongful termination.
Strict Adherence to Written Policies and Directives
Most medical and dental practices have written policies and employee manuals to inform their employees as to how they are expected to conduct themselves while at work. When employees violate written directives, they can expect corrective action. However, if an employee is engaged in an undesirable behavior that does not violate a written policy, it’s often recommended by attorneys that the employee is warned and a new policy drafted.
Once the new policy is in place, the manager or supervisor should inform all employees to refrain from the prohibited behavior. At that point, if an employee doesn’t comply, the employer is more than justified in taking corrective action, including termination.
For example, an administrator observes a nurse text-messaging on the phone when not on a designated break. However, at the time of the observation, there is no written policy against text-messaging in the workplace. Consequently, it would be inappropriate for the administrator to try to punish or terminate the nurse based solely upon this isolated incident. A new policy that prohibits cell phone usage should be enacted.
In addition, healthcare practices need to adhere to the policies they create for their employees. Employee handbooks, policies and manuals can create certain “legal rights” for employees. If the employer fails to follow their own policies it may create grounds for a wrongful termination suit.
For example, a dental practice has a discipline process that requires a verbal warning for the first offense, a written warning for the second offense and termination for the the third offense. If an employee comes to work an hour late without prior authorization and the employer terminates them, the employer should have in their file documentation of a prior verbal and written warning or they may lose on a claim of wrongful termination.
Patients Privacy
The medical field is unique in that healthcare professionals have a legal—as well as an ethical—obligation to protect the privacy of their patients. Naturally, any significant violation of HIPAA (Health Insurance Portability and Accountability Act) could be considered grounds for an employee’s termination. However, employers should be reminded of their responsibility to safeguard patients’ privacy and to educate and inform their staff about HIPAA. Periodic instruction on HIPAA and other healthcare laws is strongly recommended and may even be required by the hospital where the physicians have privileges or even by insurance carriers.
In most cases the termination of an employee is not something of immediate urgency. If you have any questions or concerns about removing an employee, contact an attorney who is familiar with labor issues in the medical profession.
The above is not intended and should not be relied upon as specific legal advice. Every legal situation is different and legal advice varies depending on the specific facts and circumstances. If you have an issue, or a question, you should contact an experienced attorney licensed in your state to discuss the details of your situation and to determine the best way to proceed. You can contact me, Philip M. Bluestein, directly at (720) 420-1777.