Tuesday, July 17, 2018

OCMA Blog

Sexual Harassment Allegations in Healthcare: Rising Risks


By:  Richard Cahill, JD, vice president and associate general counsel, The Doctors Company 

Healthcare providers are not immune from the growing number of reported incidents of alleged sexual harassment in the workplace. Accusers may be employees, patients, third-party vendors or visitors. Individuals alleged to have acted inappropriately may include co-workers, both supervisors and subordinates, professional staff—and even patients. 


Repercussions of Harassment Claims 

After complaints are filed, costly and potentially embarrassing investigations are often conducted by law enforcement, human resources departments, and administrative agencies. Depending on the nature and scope of the findings, serious adverse consequences and often irreparable harm to a person’s reputation may follow.

Adopt and Enforce Zero Tolerance

Healthcare practitioners and facilities are strongly encouraged to develop and consistently enforce a zero-tolerance policy. Protocols must be written, periodically reviewed, and updated as necessary, detailing:

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 that should be observed to help insure that confidentiality and due process are appropriately protected. 
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.

Staff should receive proper training as part of the on-boarding process and on a regular basis thereafter. Offices should develop and retain attendance sign-in sheets of such training in the regular course of business to demonstrate, in the event of a subsequent problem, the good faith and due diligence as continuing efforts of the clinic, provider or facility to comply with federal and state requirements.

Be Sure You’re Covered

Healthcare providers are also strongly encouraged to consult with their personal or corporate attorney to understand the potential financial risks of claims involving allegations of sexual harassment or misconduct. They should then confer with their insurance agent or broker to determine pro-actively what coverages might be available in their respective states to protect the provider in the event of such a claim.

Most practitioners carry professional liability coverage in the event of a claim for medical malpractice. Not uncommonly, however, medical professional liability policies specifically exclude coverage for acts of sexual misconduct committed by a physician against a patient. 

It’s 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, which may include sexual misconduct involving the policy holder and an employee.

And finally, claims of inappropriate sexual behavior against a physician or other licensed healthcare practitioner may result in administrative proceedings by a state medical board, or the privileges committee of a hospital or other facility regulated by The Joint Commission. Endorsements are widely available as part of medical professional liability policies to pay legal defense costs in the event of an investigation or subsequent disciplinary hearing.


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