By Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

Consider the following scenario: A successful and highly respected pediatrician with an unblemished record over decades of practice learns of a HIPAA breach by a member of his administrative staff. The employee is terminated after an investigation reveals that the employee had been responsible for multiple breaches. Imagine the physician’s reaction when the former employee’s attorney not only initiates a wrongful termination suit, but also alleges retaliation, claiming the employee rebuffed sexual advances from the physician.

To gain additional leverage, the former employee’s attorney submits a complaint of sexual harassment with the medical board and files a criminal complaint for sexual battery. In addition, the attorney sends a letter to the medical executive committee of the principal hospital where the physician admits patients, resulting in a peer review investigation. Finally, the former employee blankets social media with an aggressive smear campaign.

This example demonstrates that no healthcare practitioner is immune from the growing number of reported incidents of alleged sexual harassment in the workplace and that the ramifications are widespread. Accusers could be employees, independent contractors, patients, third-party vendors, or visitors. Individuals alleged to have acted inappropriately could include coworkers, supervisors, subordinates, professional staff—and even patients.

Repercussions of Harassment Claims

Shortly after a complaint is filed, costly and potentially embarrassing investigations may be conducted by law enforcement, human resources departments, and administrative agencies. Depending on the nature and scope of the findings, serious adverse consequences and irreparable harm to a practitioner’s reputation may follow. The consequences could include the following actions:

Criminal prosecution.

• Civil litigation with the potential for substantial monetary damages, which may not be covered by professional liability policies.
• Licensing board actions that may impose limitations on an individual’s ability to continue practicing.
• Exclusion from third-party payer networks, which can have a significant impact on a practitioner’s financial stability.
• Adverse decisions by the medical executive committees of the facilities where the practitioner works, resulting in a limitation of privileges.

Risk Mitigation Strategies

Given the risks, heightened awareness, and increased scrutiny of sexual harassment claims, healthcare practitioners and facilities are strongly encouraged to develop, implement, and consistently enforce a zero-tolerance policy. Consider developing written protocols that are periodically reviewed, audited, and updated as necessary. Include the following details:

• The types of conduct that will not be tolerated, regardless of the identity of the alleged perpetrator.
• A clear methodology for reporting claimed instances of wrongdoing.
• The process to be followed in investigating complaints and rules to help ensure that confidentiality and due process are appropriately protected.
• The documentation to be completed and maintained.
• The range of sanctions (up to and including termination) for both employees and patients, should the allegations ultimately be determined to be true.

Train new staff as part of the onboarding process, and provide ongoing training for all staff. Develop and retain attendance sheets as proof of the training. In the event of a subsequent problem, proof of training demonstrates good faith and diligence in continuing efforts to comply with federal and state requirements.

Institute a process of publishing the zero-tolerance harassment policy. This can be achieved in employee onboarding documentation, professional employment contracts, conditions of treatment or admission, third-party vendor agreements, website notices, and office signage.

Be Sure You’re Covered

Consult with your personal or corporate attorney to understand the potential financial risks of claims involving allegations of sexual harassment or misconduct. Confer with your insurance agent or broker to determine proactively what coverages might be available in your state in the event of such a claim.

Policy language and state regulatory requirements can vary among jurisdictions. Although most practitioners carry professional liability coverage in the event of a malpractice claim, it is not uncommon for professional liability policies to specifically exclude coverage for acts of sexual misconduct committed by a practitioner against a patient. Depending on the professional liability carrier, the practitioner may be provided with a courtesy defense covering the costs of legal fees and expenses, but no payment for any indemnity incurred would be paid in the event of an adverse jury verdict or arbitration award.

It is also prudent to consult with insurance brokers and agents about the availability of employment practices liability insurance (EPLI). EPLI may provide coverage for certain types of workplace harassment, including sexual misconduct involving the policyholder and an employee.

And finally, as noted above, claims of inappropriate sexual behavior against a licensed healthcare practitioner may result in administrative proceedings by a state licensing board or the privileges committee of a healthcare facility. Endorsements to pay legal defense costs are widely available as part of professional liability policies in the event of an administrative investigation or subsequent disciplinary hearing. Contact your agent or broker to explore your coverage options.

For additional assistance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by by email.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.