On July 17th I wrote about a lawsuit filed by a patient who alleged she was sexually assaulted by a Kaweah Delta Hospital employee. That blog discussed when an employer is liable for the acts of its employee. One of those theories is that the employer is responsible for the acts of the employee performed in the course and scope of employment. An alternate theory of liability is that the employer engaged in wrongdoing by negligently hiring or retaining the employee. My guess back on July 17th was that Kaweah Delta would see more lawsuits, and that those lawsuits would focus on the second theory of negligent hiring and supervision.
It didn't take long for the next case to be filed. Just yesterday a compolaint was filed on behalf of a patient who was there to give birth. An employee allegedly gave the patient medication, and then instructed her to take a shower. Once in the shower, the patient was allegedly assaulted. According to the complaint, the hospital and related defendants should not have given the employee any authority over female patients. In other words, the complaint is alleging that the defendants knew something, or should have known something, about the employee's behavior and prohibited him from working with females.
My recommendations --
First, every employer should conduct an appropriate background check on each employee it hires. The check can include criminal background, prior employment, education, DMV and credit checks. It's important that a very competent third-party credit reporting agency conduct the check. The employer should not conduct the background investigation. There are too many pitfalls. And it is important that the credit reporting agency used actually verifies information with the court, as opposed to review an electronic database. Those databases have a dismal reliability rating of 43 percent.
Second, employers must properly supervise and document behavior issues. Too often supervisors want to avoid the conflict associated with workplace behavior. However, failing to confront the issues, disciplining, and then documenting the behavior and the discipline leads to even more difficult situations.
Third, remember the most important advice I can give -- problem employees never get better. If you have a problem employee, let him/her go now. Don't wait until tomorrow. Take action today. Leaving the employee to continue his/her poor ways is like letting a wound fester. It just worsens with time.