Decisions to terminate employees (whether those are described as firings, terminations, layoffs or the more politically-correct "downsizing") are never fun. They're hard on employees, and they're very hard on managers who may be assuming more duties as a result of losing staff.

When termination decisions are made, they are often made on bases that have little to do with job performance, for example, seniority. The newly-hired aide with a great attitude may be terminated instead of the fifteen-year employee who's not a stellar performer. However, in most states, you can terminate an employee for any reason or for no reason, as long as you don't terminate them for an improper reason. Improper reasons include decisions based on age, sex, race, religion, pregnancy and public policy.  So as long as a termination has a legitimate business reason, in most cases it will not be subject to sanction by a court.

Under U.S. federal employment law an employee has a right to bring a claim of discrimination to the federal courts if he or she is (1) a member of a protected class; and (2) suffers an adverse employment decision. 

Because everyone is a member of an identifiable race and sex, and many are members of an identifiable religion, satisfying the first obstacle is easy. A termination clearly satisfies the second obstacle. So, even though almost everyone could sue for wrongful termination, the vast majority do not. This is due to several reasons. The first reason is that in most cases employers handle the termination with tact and offer outplacement assistance and a good reference. The second reason is that most lawyers don't take an employment case unless there is credible evidence of discrimination in the form of "pretext." Pretext, simply stated, means that the reasons given for the termination don't turn out to be the real reasons.

For this reason I offer the following suggestions about what to do when terminating employees:

1.      Make it a Short Story, not a Novel.

A termination interview should be planned, not spontaneous. Have a checklist. Work through the checklist, end the interview, and move the former employee along. There are only a few things to tell an employee when they are terminated.  (1) Your last day of work is (or was) ___."  (2)  Your employment is terminated.  You are not subject to rehire.  (3)  You have COBRA benefits - here is a package of information about those benefits.  (4)  Have a nice life somewhere else.

Don't get into "the whys." You can fire an employee for any reason or no reason. If you have multiple reasons and don't list them all, the employee can claim pretext. The easiest thing to do is say "the decision has been made, it is not subject to review, and that's all I can tell you at this point." 

At this point, depending on the employee, you'll either get anger or tears. Both are understandable, and neither are appropriate for a response. Give the employee a moment to be angry or cry. If you have an angry employee, it is a good thing to have security available to escort them off premises.

The more that is said at such an exit interview, the more that can be used against you. The less you talk, the better it is. So remember: if you have to take a breath while telling an employee they're fired, you're talking too much.

2.      Crisp is not Heartless

I can hear you out there now:  "that's heartless!  People deserve to know the reason they were let go!" Actually, that's just not true. Volunteering a reason is never a good idea. And when a manager does so, it usually is to make the manager, not the employee, feel better.   

Everyone wants to be loved, but managers do not have that luxury. You have a job to do. You do the job crisply and efficiently, and in the end you will always be better off. It is much harder to defend an organization that puts its reasons and rationales in front of the employee, because it gives the employee room to argue, and that makes the manager feel like they have to respond.   Say one thing related to age, sex, race or religion, and you create a lawsuit where none existed.  Instead, be crisp. It is appropriate to say "good luck in your future endeavors," it is not appropriate to say "I'm sorry." An apology is required when someone has made a mistake or an error. If a termination is justified, there's no need for an apology.

Managers often want to cushion the blow. They want to go easy on an employee at a difficult time. They say things like "you're a great person, you'll do fine." Worse, they say things like "this wasn't about your performance, we were just cutting fat."  All of these things are admissions. If you tell an employee "this is not about your performance" in the exit interview, and then discovery reveals that she was fired for her poor work performance, it begins to look like at least one of those statements was a lie.  If you limit what you say, you limit liability exposure. 

It is also worthwhile to consider that there is really nothing you can do to ease the blow of losing a job. Being fired is being fired. There's just no way to sugar-coat that. Instead of worrying about the employee's pain, worry about your own. The last thing you want to do is being explaining in a lawsuit what you meant when you said you were "cutting fat" and your former employee is a 50 year old 260 pound employee who can cry on command. In terminations the KISS method (keep it short and simple) is the best way.

3.      Two is a lawsuit, Three's a Defense

In almost every instance when terminating an employee, stack the odds in your favor. Have a witness. Have the witness take notes. Have those notes marked "Notes Prepared in Anticipation of Litigation" at the top, and have them forwarded to corporate counsel upon completion of the interview. Make sure you will always have a record of what you did and (more importantly) what you did not say. Marking the notes as work product makes them almost impossible for the employee to gain access to them in discovery.

But choose your witness well. Don't use a secretary or other hourly worker who might be later subject to a layoff, or someone whose loyalty to the organization is suspect. The best person to have in attendance is a person from Human Resources, assuming the organization is large enough to have an HR staff. Also keep in mind that you need someone who won't later talk about the exit interview with others. In other words, choose carefully.

4.      No Manager Ever Documented Too Much

If performance is truly the reason for termination, it is better to have too much performance information in the file than too little. And that means that the documentation should be historical and accurate. If an employee has gold-star evaluations for sixteen years, and suddenly has two infractions followed by termination, the argument for pretext is much stronger. 

Follow the policy explicitly on terminations, even if it means keeping an employee longer than you'd like. Set reasonable deadlines, hold people accountable, and don't let managers be forgiving. Sometimes an employee will screw up in January, and by July, when evaluations are due, the supervisor has forgotten all about it. Hold supervisors accountable to include in their evaluations those incidents where an employee has gotten into trouble. The most indefensible part of a discrimination case is where an employee can show years of great evalutions followed by a short course (six weeks) of harassment from a new supervisor. Juries do not like employers who are not fair.

5.      To Fire is Human, To Make Them Leave, Divine

In most cases if you hold an employee accountable strictly for their performance, and you let them know they are under the gun, even the most long-term employee will leave the organization. When an employee who has been a disciplinary issue leaves, make sure to document the exit interview.  At that interview you accept their resignation and wish them good luck. You also document that the resignation was not requested, and that the employee left voluntarily.  Always get resignations in writing. Always confirm them with a very simple letter: 

"Dear Martha:

You have indicated that you are resigning on April 4, 2009. You have submitted your voluntary resignation effective that date, and the organization accepts your resignation. You were not asked to resign, and your employment record will reflect that leaving was your decision."

Although an employee can claim "constructive termination" it is a much more difficult for them to win these cases.

6.      Severance and Release is Better than Severance

Severance, the payment of a month or two of salary to a departing managerial level employee, is always a good bet for an organization if it is accompanied by, and conditioned upon a release of all claims. Almost any good law firm can draw up a release that extinguishes the rights of the employee in litigation.  The release should extinguish the employees rights to sue in state and federal court for all the possible causes of action. While a release won't affect an employee's right to bring a False Claims Act case (in most cases), it will extinguish their right to sue for discrimination. Most employees trade a small amount of real money obtained real quickly for a large amount of money that might come in a later lawsuit, if the situation arises. This is particularly true in a down economy.

One thing soldiers with recent combat experience say is that frequently it's the non-combatants who suffer the worst in battle. This is something like the observation my daughter, a pediatrician, makes about working in the ER:  it's the innocent bystanders that are always hurt the worst.

The same is true when end-of-life issues clash with expectancies arising from a parent's wealth. Issues usually arise in one of several ways:  either (1) a family member believes that another person, acting under a durable power of attorney, is looting the estate of the elder; (2) the family members bicker over how care should be provided but no one has the power to made decisions;  or (3) one family member or another decides that their parent needs a guardian or conservator, often fearing that without such action the estate will be looted by others.  In these cases it is often hard to tell who the good guys really are.

A guardianship is a court-ordered takeover of a person's right to make decisions about their life and health. A guardian has a ward. The guardian can confine that ward in a nursing home, make decisions about what care is to be provided and what care is to be withheld, and if they also have the power of the conservator, they can say how the ward's money is to be spent. These are awesome powers and the guardian can become, and in some cases actually does become the ward's jailer.

In most states a guardianship is declared only where a person is not competent to make their own decisions.  Usually medical testimony is used to determine competence, although sometimes a protectee may simply be examined by the Court. Where the Court feels that the protectee cannot function so as to protect himself or herself, the Court appoints a guardian (to manage the health care and living decisions) and a conservator to look after the finances.

As health care providers its normal to have opinions about whether a client is competent to manage his or her affairs. It is never a good idea, however, to share those opinions with family members because sometimes this results in being called by one side or another to testify about a person's competence. And worse, it is often difficult to determine if a person acting under a guardianship actually intends to help or harm the elder.

Consider the case from the Dallas area where local media jumped on a local court and health care providers after a former producer form the television station was "incarcerated" in a nursing home. Although the use of the synonym for jailed indicates some strong feelings on the part of the media, it also indicates that nursing homes are perceived to be in some cases worse than jails.  In that case after the ward called his former employers and begged for help, new lawyers and new doctors were called in to undo the guardianship.

The danger for the nursing home is in siding with one party or another in a guardianship proceeding. If a family member obtains guardianship and thereafter loots the estate or makes decisions contrary to the best interests of the ward, the nursing home may have a duty to report this to the Court. If the guardian is later alleged to have been working in sync with the nursing home staff, liability for any financial losses might be shared by the nursing facility.

As a general rule the smartest approach is to stay out of the line of fire in a guardianship where multiple parties think they know what is best.  Until the matter is decided by the courts, the nursing home may have trouble complying with multiple requests by multiple parties, and may want to consider asking the Court for the appointment of a temporary guardian (often called a public administrator) so that care issues can be properly managed while the family fights out the guardianship battle.  Having an interim source for the resolution of conflicts about care can help keep caregivers from becoming collateral damage in a family war.

Nearly every nursing home has labor problems related to getting and keeping good staff members. Good help is exceptionally hard to find. Good-hearted nurses and aides, who are willing to work long hours under difficult conditions are often hard to find.  Too many employees means the bottom line of the facility suffers. Too few and sanctions and state citations can result.  Sometimes the line between the two is very thin.

Over the past few years some owner-operators have tried a different solution to their staffing problems. Registered nurses brought over from the Philippines have an exceptional work ethic and most speak English (English is the official language of the Philippines even though Tagalog is the language most often spoken). Most of these nurses can get visas, and most can quickly obtain licensure. For that reason some facilities have entered into recruiting agreements with services in the Philippines to supply them with nurses.

The problem with such an international arrangement is that you often don't know who you're working with on the other end of an international telephone call. You have little, if any, control over what is being told to the recruited nurses, and what promises are being made. The facility may ultimately become responsible for the promises that are made during recruitment.

Two recent criminal prosecutions - one successful and one not - show the dangers of getting help from overseas. One case, known now as the Sentosa case, has been the focus of a lot of media scrutiny.

In the Sentosa case, originating out of New York, nurses from the Philippines were recruited with promises that they would have apartments living with a roommate. In fact the nurses were put six to eight in a 3 bedroom house. Nurses were told they would have normal work hours, but were actually required to work hours greatly in excess of what was promised. The nurses resisted these conditions and, because they were foreigners, were threatened with prosecution if they violated US law.

The nurses retained an attorney who advised them that they could not be prosecuted for breaching an employment contract.  The nurses made sure to give adequate notice, breached their contracts, and then the nurses and their lawyer were arrested for conspiracy to jeopardize the care of elderly persons and patient abandonment. The facility hoped to pressure the nurses into returning, but instead the nurses filed an action against the facility for breach of contract under US law.  The facility fired back by asking the New York Board of Nursing to get involved.

It did, and it exonerated the nurses. Then, after the nurses were cleared by the Nursing Board, the New York Court of Appeals, relying on the 13^th Amendment (the statute that bans slavery), held that the nurses could not be prosecuted for the legal act of quitting their employment. Just this last week a number of those nurses prevailed in a legal action in the Philippines related to the promises that were made to them during recruitment. The nurses have now initiated legal action against the prosecutor.  A lawsuit against the nursing home can't be far behind.

Then on Monday, October 19, 2009, a nursing home owner in Long Beach, California was sentenced to five years in federal prison on felony charges of forced labor and other unlawful conduct. When the owner was arrested in April of 2008, the FBI said that the victims - nurses recruited from the Philippines - were forced to work nearly 24 hours a day and were advised they would have to work for several years while they repaid their travel debts. The nursing home owner allegedly threatened victims by promising to falsely accuse them of crimes should they try to leave, and threatened to contact police and immigration officials, whom she said would deport the victims. She allegedly held the victims' passports and verbally abused them. Worse, she also instructed the victims to lie about the amount of hours they worked when questioned by officials with the Department of Social Services, who monitor the homes for the elderly. Clearly the conduct in this case is significantly outside what any legitimate home would do.

These cases illustrate how badly international recruitment efforts can fail, and how expensive they can become when they do. The best way to solve labor problems is to screen applicants carefully and hire qualified people. With millions out of work in a depressed economy, there are people who want to work in this country.  The trick is finding them.

In the nursing home setting most admission agreements have standard language that disclaims any intent on the part of the facility to be a "bailee" of goods. This language is important, but can be circumvented by individual employees if they act on their own for the benefit of patients.

Consider Mrs. Jones who has a big fluffy quilt on her bed that is a family heirloom. Mrs. Jones family rarely visits, and a nurse takes it upon herself to wash the quilt for her.  In the washing process, the quilt is damaged. The employee became a "bailee" because she was given a "chattel" or piece of property to care for. She had a duty of care and duty to return the goods. Her failure to be careful washing the quilt could make her liable for the damage. While the facility might still claim that it was not a bailee of the goods, it could probably not escape liability for negligent supervisor or vicarious liability.

There is another very critical reason that no employee of a skilled nursing facility should ever accept property from any resident for any reason -- even a benign one like washing a blanket - and that reason is found in the criminal law.  Nothing prevents a resident from claiming that the goods were stolen when they fail to remember entrusting a worker to take care of the goods. Family members who were not present when the resident entrusted the goods may believe that the item was stolen. Why would they believe this?

Consider the case of Micah O. Shatswell, a Missouri nursing home employee who took a painting from a Springfield, Missouri nursing home thinking it might be worth as much as $100. When he sold it online for $175,000, he was stunned that the painting was so valuable. One assumes he was equally stunned when the FBI arrested him and charged him with interstate transportation of stolen goods.

This raises the issue of whether residents should be allowed to bring high-value items with them to the skilled nursing facility. That should be permitted only where the facility has in writing an insurance agreement that covers the high-value items and indemnifies the facility against any loss for those goods in the event of theft, fire or accident.

On September 17, 2009, the Oklahoma State Supreme Court overruled a decision by the Court of Appeals involving a licensure proceeding filed against a former nurse's aide by the Department of Health.

In the proceeding, the Department of Health charged that the nurse's aide copied parts of a patient's medical record to bolster her employment discrimination claim and thereby misappropriated the patient's property by giving the information to the EEOC. The Department claimed the aide did not have permission to give photocopies to the EEOC. 

The Supreme Court in an 8 to 1 decision found that the aide did not violate the law. The decision is premised in the idea that a resident does not have a property right in their medical records, and that photocopying them and using them for evidence is not a violation of the state's property laws.

The aide at issue had been disciplined by the facility for acts of misconduct which she asserted were pretexts for acts of discrimination. She filed a complaint with the EEOC.  At some time while her complaint was pending she copied a medication report left in public view by Caucasian nurses who were not disciplined for their failure to safeguard the record.  She submitted the copy to the EEOC as evidence that blacks and whites were treated differently.

During the pendency of the discrimination case, the nursing home learned of the medication report, and terminated the aide, then reported her to the Department of Health in Oklahoma. The Department of Health sought to discipline her for misappropriation of the patient's property, not for violating HIPAA. They were going to place unfavorable information in the state's Nursing Aide Registry. This would have been the equivalent of revoking her license to practice as an aide.

The Department filed a legal pleading called a motion for summary judgment. It argued that the photocopied records were the resident's property, that the content was confidential under the Health Insurance Portability and Accountability Act of 1996 (HIPAA); that the aide took the medical information with neither any entitlement to the information nor the resident's consent and distributed it to a third party (The EEOC).  At the hearing on the motions, the Department clarified that its position was that the aide had transferred the resident's medical information to a third party. The aide responded by saying, among other things, that the state statutes and regulations governing the Registry cannot be extended to cover disclosures of patient information because such disclosures are governed by HIPPA. The court found that the aide had misappropriated property belonging to the resident, and the aide appealed. The Court of Appeals affirmed the verdict, and the aide appealed again, this time to the state Supreme Court.

In its opinion the Oklahoma Supreme Court looked at the controlling federal regulations which defined misappropriation as "the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent." 42 C.F.R. § 488.301 (2003). The problem for the Department of Health was that the policies and procedures of the facility clearly stated that the medical records were the property not of the resident, but of the facility. The Court said:

Here, [the aide] may have disclosed resident medical information by divulging it to the EEOC, but she did not transfer a resident's property. The evidence is that  [the aide] took a resident's medical information and disclosed it to the EEOC, but there was no severance of the right to the information or of the information itself from the resident or from Epworth Villa. The Department's definition of misappropriation of property does not include the release or divulging of information. Thus the ALJ erred when it found that  [the aide] had misappropriated a resident's property by transferring information to the EEOC.

In a blistering dissent Justice Joseph Watt argued that the photocopying was a violation of the patient's rights.  The Supreme Court did not decide the case based on a violation of HIPAA, however. Instead, it was limited to reviewing the case based on what the Department of Health had charged, specifically, misappropriation of property. By making the wrong disciplinary charge, the Department of Health lost the case.

This does not mean that employees can take any medical record they find and copy it for their own use. It is a very narrow case under Oklahoma law. Had this case been in a federal court and had it been brought by or on behalf of the patient, the result may have been significantly different.

There is a difference between a novel and a news story in a newspaper, even though both are printed on paper. Similarly, there is a difference between a legal drama like Law and Order, and what actually happens in the nation's criminal courts.  The fact is that those who practice in the criminal and civil justice systems know that these dramas badly depict the actual legal process.

In the early 1900s several daily newspapers battled for circulation in the New York City area.  Several used sensational news - where accounts were not objectively reported and lurid details of the events were sensationalized - to boost sales of their papers. This led to the newspaper reporters being called "yellow journalists" by their peers and critics because the job of the news media is to report the news, not serve it up as entertainment. Even today some New York newspapers serve up a daily dose of sensationalized news and lead with scandal whenever possible.

Television news is not immune to this phenomenon, and the buzzword around many a television news station is "if it bleeds, it leads." Because television is funded by advertising, and advertising depends on ratings, yellow journalism is a far greater threat in the electronic media than in the print media.

CNN, Fox News, and similar 24 hour cable news shows have, however, taken yellow journalism to a new height. They have elevated it to an art form. Instead of merely reporting the gory details of crime and punishment, they instead merge what appears to be investigative reporting with a focus on entertainment, and in so doing are setting the stage to ensure that defendants in criminal cases get much more than their 15 minutes of fame. For many this is a validation of their work.  Think Ted Kaczynski. For others, it could be a literal death sentence since the media so poisons the jury pool that a fair trial anywhere is likely impossible. It frequently takes 18 months to bring a case to trial.  Jurors everywhere watch cable news. How many are really going to be able to put facts heard on the media out of their head?

When did murder begin to entertain us as a culture? Those of us with a bias for life, and who've spent our lives trying to save lives, find this strange. How did the murder of a child and the anger we feel over that crime morph into a nightly "hang-em high" roundtable? Are we really that empty in our personal lives that we have to feed off the pain of others?

Consider the handling of the Casey Anthony case by CNN pundit Nancy Grace. Grace, a lawyer and former prosecutor should know better, and it's appalling that a lawyer would knowingly lend her status as an officer of the court to an enterprise that, while not necessarily designed to destroy the right of an accused to a fair trial, certainly is capable of achieving it.

To be sure the Casey Anthony case is certainly sensational.  What appears to be a rather narcissistic young mother, Casey, is accused of murdering her child, Caylee Marie, and hiding the body in a trash bag.  Importantly, while there is likely some physical evidence that the prosecutor has not disclosed, there are no witnesses, no smoking guns, and no direct evidence of the accused's guilt in that case. Yet, even on COPS, the Fox Entertainment Division's pseudo-reality series aimed and following real cops on real calls, the program begins with the advisory that "all suspects are considered innocent until proved guilty in a court of law."  Grace never reminds her listeners of this.  One assumes because, at least in Grace's mind, that matter is already settled.

Grace has all the charm of a spitting cobra as she "debates" with guests on her show.  Say something Nancy disagrees with and the venom and vitriol comes spewing out.  Whenever someone tries to suggest that an arrested suspect might actually be factually innocent, Grace nearly comes unglued.  Being a "guest" or panelist on Nancy Grace is an invitation to be abused.  And yet, somehow Grace, who built her reputation on her book Objection, which tries to lay the blame for defense verdicts in criminal trials at the feet of defense attorneys and the media, is the foremost member of the media at fault if a verdict gets overturned on the basis of pretrial publicity.  In some respects, Nancy Grace is a defense attorney's best friend on appeal.  But this is not the worst aspect of the show from a legal perspective, however.  It's the disregard for the legal process inside the courtroom.

In a court room, juries are not permitted to speculate. They are asked to decide the case on the basis of the evidence presented. This is designed to ensure that the jury bases its decision on relevant facts, and not on irrelevant facts.  For example, unless a defendant takes the stand in her own defense, the state cannot bring up the fact of any prior convictions, even if those convictions were for the same crime. So the fact that a bank robbery suspect may have twice robbed banks in the past is not admissible in the current bank robbery trial because a jury might speculate that once a person was once a bank robber, they were always a bank robber. Similarly, witnesses cannot speculate about why a person might have taken a particular action. If they know, they can tell.  But asking a witness to speculate - even an expert witness - violates the rules of evidence. 

Grace knows all this, of course, because she was a former prosecutor. But she routinely asks these "why" questions on her show, and even on her website where today's "headline" suggests a "major twist" in one of the cases the show has been covering. The teaser tells the viewers: "Does a letter from a jailed friend ... break the ... case wide open, outlining details of an alleged drug-fueled party the crucial night the little girl vanished? Nancy Grace has the latest breaking developments."

Now, often the viewing public never sees the alleged letter, and instead hears from "informed sources close to the investigation who requested anonymity." The contents of the letter are not disclosed, only the salacious information necessary to get the viewer at home to watch. Grace frequently reminds us to watch because we don't want to make her mad.  "Don't make me issue a warrant," she tells her viewers.  In spite of, or perhaps because of this peel-the-paint-off-a-battleship pugilistic style of interviewing, Grace is a ratings sensation for CNN.

Lawyers subscribe to an ethical creed that requires them to respect the right of any person to a fair trial. In fact, the Missouri Rule states "A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial [out-of-court] statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

The prosecutor, then, can't go on television and talk about the case, and neither can the defense attorney, because they are bound by a rule that requires them to respect the rights of the accused. Every lawyer understands this rule.  Nancy Grace certainly understands it. And yet, while she is not within the explicit scope of the rule because she is a media person, she should certainly be within the spirit of it. Yet, Grace continues, night after night, to poison the pool of prospective jurors in criminal cases around the country with unfair speculation and innuendo because it makes for good ratings (Grace has the best ratings on Cable for her time slot, according to her page on CNN).  It also makes for great spin-offs.  Grace is preceded by Jane Velez-Mitchell who frequently teases Grace's lead stories, and frequently conducts the same "panel interviews" featuring lawyers and other experts. Mitchell, however, lacks the caustic attitude of Grace, and although probably not intentionally, comes across as perhaps a bit more fair in her questions.

Night after night cable news features the likes of Grace and Fox's Greta Van Susteren (also a lawyer) spin a think mix of invective and speculation about criminal cases with guests and even other lawyers calling suspects names like "scumbag" and "dirtbag." It isn't objective reporting of facts; it is nothing more than sensationalism of the social depravity inherent in all crime. As a nation we should clearly separate entertainment (Law and Order) from news (Nancy Grace).  That we don't speaks volumes about how media executives feel about the average viewer, and how captive television news is to ratings.

The patient's oxygen saturation on the pulse oximeter showed a dangerously low value. Narcan was administered.  Intubation equipment was readied. The patient was groggy, but did not appear to be in significant respiratory distress.  Another oximeter was obtained that showed a much better oxygen saturation value. The Rapid Response was called off, and the manufacturer of the medical device got a telephone call from a biomedical technician who was not happy.

Understandably the hospital personnel believed they had a bad pulse oximeter. They demanded that the unit be replaced. The manufacturer sent out a technical representative instead. He asked to see the sensor that was on the patient. Within a few moments he isolated the problem:  the sensor - originally manufactured by the oximeter maker - was defective.

The BMET read the technical representative the riot act, until the technical representative pointed out that the sensor was not as it had come from the factory. It was, instead, a remanufactured or reprocessed sensor that had been supplied by a vendor that buys used sensors, replaces the adhesives, and returns the sensors to the hospital. While the clinicians believed they were using a new sensor made by the original product manufacturer, the purchasing department had a dirty little secret:  it was cutting costs by re-using old equipment. This is a very common method of reducing costs.

Equipment reprocessors take what they call semi-critical and non-critical medical devices and resterilize them. This includes DVT compression garments, pulse oximeter probes, blood pressure cufs, infuser bags, cervical collars and splints.  One prominent provider claims it uses High Level Disinfection procedures and Pasteurizes the equipment. It then affixes new adhesives and wraps the now-disinfected equipment for transport back to the facility. The cost for the service is usually less than the cost of a new probe, split, infuser bag, or DVT compression garment.

No responsible nurse would put Mr. Smith's barely used band-aid on Mr. Jones. No responsible nurse would take crumpled tissues from the trash bin, iron them, and stuff them back in a box for use. Yet every day across the country people take single-use patient items and in spite of clear warnings to the contrary either re-use them or send them to a reprocessor. They do this because there is a cost savings, and certainly over the short term that savings is real and measurable. But who is to blame when a medical error arises? And who shares the liability for using what amounts to hand-me-down medical goods?

Surely if the patient is harmed by a defective medical device - one that alarms when it should not, or fails to alarm when it should, the manufacturer might well have liability. But if a component of that monitoring system is something other than the original equipment manufactured by the medical device maker, liability may default to the facility using the equipment, or to the reprocessor. This because the manufacturer will be able to show the disclaimers that indicate it is not responsible for the results when used with anything other than original equipment.

In the situation where the reprocessor is actually the original product manufacturer this does not present a significant issue. If the manufacturer sells reprocessed devices, it also warrants them. The problem arises when Company A reprocesses Company B's sensor, but doesn't disclose that the sensor is reprocessed. Because the reprocessed sensor bears the name of original manufacturer, the original manufacturer often gets the blame. But it's the facility that is in for a surprise if there is a medical meltdown.

This because many reprocessors are small operations and do not have sufficient product liability insurance to cover their liability in the event that a defective sensor causes injury to a child or other patient. 

The far better approach, even though more expensive, is to use original equipment. If a facility uses original equipment it has only one source to turn to if the product fails. If a reprocessor is used, the facility should investigate the company and make sure that it has sufficient insurance. A smart facility would even require the vendor to include the facility as an additional insured, and would require the reprocessor to "indemnify and hold harmless" the facility in the event of product failure.

Its easy to think of saving money in the short term. But a facility can be pennywise and pound foolish if it uses reprocessed goods that do not meet the original equipment manufacturers specifications, and those goods cause patient injury.

Lawyers operate in a funny world. On one side of the law legislative governments write statutes.  On the other side of things, courts issue decisions and catalog them.  As a result, knowing the law means both knowing what the statutes say and what the decisions say and mean.  Sometimes "commentators" - a fancy term for law professors with nothing better to do - compile "restatements" of the law based on principles discerned from the cases.  One of the more famous restatements is the Restatement of Torts.

One of the many things you'd find in the Third Restatement is the doctrine of Negligent Entrustment.  Negligent Entrustment was designed to remedy the situation where a person places a dangerous instrument into the hands of another, and a third person is injured by reason of negligence.

Normally this arises in the context of a case involving automobile use.  A parent may permit their 15 year old unlicensed child to drive to the local Sonic to bring back supper, even though he knows that  the child has no driver's license.  He is "entrusting" his car to the child even though he knows that the child has not demonstrated competence with a vehicle by obtaining a license.  If the child runs over someone on the way to the Sonic, the parent who entrusted the car may be liable under the doctrine of negligent entrustment.  The cases speak about the three parties as the entrustee (the child in the example above), the entrustor (the parent), and the plaintiff.

In order to win a negligent entrustment case, the plaintiff must prove (1) the entrustee is incompetent by reason of age, inexperience, habitual recklessness, or otherwise; (2) the entrustor knew or had reason to know of the entrustee's incompetence; (3) there was an entrustment of the instrument that harmed the plaintiff; and (4) the negligence of the entrustor concurred with the conduct of the entrustee as a cause of the harm to the plaintiff.   Negligent entrustment cases involving power tools and firearms are also common.

Sometimes legal theories get applied in ways that don't fit nicely into one doctrine or another.  Under the law, a person is responsible for the negligence of another if they employ, supervise or direct that person.  This is called vicarious liability.   Under most circumstances absent some kind of employment or supervisory relationship, a party is not liable for the negligence of a truly independent contractor.  Thus, in most circumstances, a nursing home would not be liable if a patient was injured during an ambulance transport by a negligent ambulance driver.

However, where a relationship exists that creates a duty to protect another exists - for example, in the case of a SNF with a duty to ensure that its residents are protected for known harms - a duty arises that can create liability where the SNF places the patient into the hands of one incompetent, and known to be incompetent.  Health care entities owe a duty to their patients to protect them from harm.  This is why health care facilities have fire policies that begin with R for Rescue the patient.  When a patient is sick, or debilitated, they are often not able to protect themselves from harm.

Thus, when a SNF or a health care facility makes a choice of a particular provider, and places the patient into the hands of another provider, they have an obligation to make sure that the provider is  competent, or more accurately, to make sure that there is no indication that the provider is incompetent.

To make this clear, consider two possible scenarios.  Fast and Loose is an ambulance company known for speedy trips, but rarely employs licensed paramedics.  Everyone knows that the techs are unlicensed.   The ambulance that arrives to pick up the patient has only one gurney and no oxygen equipment.  There is no city or county license displayed on the ambulance.  A reasonable person in the position of the nursing home would know that the ambulance company is not complying with the licensure laws.  If the patient is injured because of F&L's negligence, there could be liability based on the duty to protect.

On the other hand, suppose another ambulance service, Fly By Night, has seven well-equipped coaches and crisply uniformed paramedics with shiny gold badges.  The service provides copies of its licenses to the facility upon request, but those licenses are clever forgeries.  The patient is injured when an unlicensed driver flips the ambulance.  Unless the facility had knowledge of FBN's problem before the event occurred, no liability attaches.

As another recent blog post pointed out, facilities want to reduce costs, and one way to do that is to seek bids and get lower prices for services.  One of the services frequently required is non-emergency ambulance transport.  It is very important that if you use something other than the local governmental or 911 services for patient transports, that you make sure that the service is fully licensed and insured.

Any time an ambulance service contracts with a facility, the contract should require the ambulance service to maintain all state, county and local ambulance licenses in active condition.  You should ask to see copies of the licenses, and should note when they come up for renewal.  At no time should a patient be transported in an ambulance that has not met all the requirements imposed by state and local government. 

The contract should also require that the nursing facility be covered as an "additional insured" by the ambulance service's liability policy against any claim of negligence or negligence in the entrustment of the patient to the service.  The contract should specify that the ambulance service "indemnifies and holds harmless" the service provider.  These magic words place the cost of defense for any action arising from negligent ambulance care squarely on the ambulance provider.

It is not enough, however, to simply require these contractual pieces.  The ambulance service must be checked every six months to ensure that it is still licensed and still insured.  If the service  drops its insurance carrier, even though the facility may have indemnity language in the contract, it may still have the deepest pockets and be the most likely lawsuit target if something goes wrong.  Normally when the principally-liable defendant is insolvent, that's when lawyers get creative with their allegations of negligence.

Protecting the facility from liability requires making sure that all ancillary providers, from nursing agencies to ambulance companies, meet all the requirements to do the job.

The United States, for claims filed under Medicare, and most states for claims filed under Medicaid, have a statute that prohibits kickbacks. Kickbacks are pernicious things and in theory they increase the cost of care to the government.  So that's why the federal statute is so broad. It prohibits both the payment or offering of a kickback, and the acceptance of a kickback, if it impacts any item of health care services that will be paid for under Medicare. But it doesn't stop there. Congress knew that people are clever and often do things under the table. That's why the statute prohibits the payment of any "item of value" and says that the item of value can be in cash or in kind. While there are safe harbors under the statute, they do not extend to agreements to swap services for money.

Suppose Rocket Roy's Ambulance Service shows up at the nursing home and goes to your front desk. The nurse on duty confronts Rocket's salesman who tells her that any time she calls Rocket Roy to transport a patient, she'll get a $25 cash card for Starbucks, Applebees, or Ruby Tuesday. What a deal!  A nurse would be a fool not to take that deal.  The patient gets a ride, and the nurse gets a reward!

Hold that thought a moment. Both Rocket and the nurse are now guilty of offering to give and offering to accept a thing of value (a gift card) in exchange for the provision of a service to be paid for under Medicare.  It's a felony, and carries with it a $25,000 fine and five years in prison. Maybe this isn't such a good deal?

Wait a minute now, you're saying. I had no idea this was criminal! Too bad. Under the tough love standards in federal court, you can still be liable. This is the holding of United States v. Starks, 157 F.3d 833 (11th Cir. 1998). Starks involved government employees who were convicted for violating the Anti-Kickback Statute. The employees had participated in a scheme where patients were referred to an in-patient chemical dependency unit in exchange for payment. The defendants appealed their conviction claiming that the judge had erred when he refused to instruct the jury that the law's "willful" requirement necessitated proof that the employees knew the referral arrangement violated the Anti-Kickback Statute.

The Appeals Court upheld the conviction, finding that the defendants did not have to know that their conduct was illegal under the Anti-Kickback Statute because they knew generally that their conduct was impermissible. The Court said that the Anti-Kickback Statute "is not a highly technical tax or financial regulation that poses a danger of ensnaring persons engaged in apparently innocent conduct. Indeed, the giving or taking of kickbacks for medical referrals is hardly the sort of activity a person might expect to be legal." Ouch!

Suppose Rocket Roy offers a different deal. Rocket Roy says "We'll transport any patient that the facility would normally have to pay for (Medicare Part A transfers) for $75. In exchange you give us all the transports that Medicare will pay for (Medicare Part B transfers)." What could be wrong with this? You're getting a reduced rate on the facility transports. No person is benefitting personally. How could this be wrong?

Ask American Medical Response. In 2006 they paid the United States Government $9,000,000 to settle claims that the company violated the Antikickback statute in swapping these low cost ambulance services for the pricer Medicare transports. Both AMR and Rural Metro, another Texas-based ambulance company, settled with the government in a case brought under the False Claims Act in Houston, Texas. Because the ambulance companies provided a complete recovery for the federal government, the federal agents did not go after the nursing homes and seek reimbursement from them. But they certainly could have.

Rocket Roy is very persistent. He suggests that you enter into a contract where you get a lower rate. The contract won't require you to send him all your patients, but you understand that this is part of the arrangement. The agreement to use him as the exclusive provider of Medicare Part B transfers isn't written in the agreement, it's just a private understanding between friends. How can there be a violation of the statute?

Just because a person is clever enough not to put the whole agreement in writing doesn't get them off the hook. The federal agents will look at substance, not at what's on paper. If Rocket Roy gets all the transfers - and the facility never calls anyone else - there's a good chance that both Rocket and the facility will both be in trouble.

When it comes to the Antikickback Statute, it pays to be careful.

For the most part, nursing home administrations would like to be able to make the determination about how many staff are needed for a given situation on their own without government oversight. This has always been the American way. The employer gets the freedom to decide about staffing, taking all the risk and getting all the reward for innovations that reduce man hours. 

Rather than relying on the state to determine by formula or otherwise how many people to employ for a given shift or a given number of patients, the Administration has usually been able to set the number taking into account the needs of the patients and the abilities of the staff hired. So long as everyone agrees that patient safety and well-being come first, the system works well. It is when administrators start speculating about patient safety and the number of staff necessary that the notion of government oversight starts to have some real appeal.

A good case study in what happens when a facility speculates about how many staff are needed for a home can be found in what happened at Anderson Guest House in Anderson, Missouri. In late November of 2006 a fire broke out at the Anderson Guest House at 1 a.m. when there were only two staff members on duty in the facility. Two staff, 33 patients, one staff member for every sixteen elderly and mentally disabled residents. 

Investigators later learned the home was operated by a convicted felon. The two employees who were on duty at the time of the fire were a husband and wife. One died of smoke inhalation after going back into the blaze to search for residents. The other employee was treated for smoke inhalation at a local hospital. Nine residents perished in the fire, and twenty-three required medical treatment of one variety or another.

Like many of these smaller group-home ventures, the staffing was inadequate to insure the safety of the residents, and ten people paid for that staffing mistake with their lives. Although other factors may also have played a role in the tragedy (including the lack of sprinklers) the main contributor to the deaths was a lack of sufficient personnel to evacuate the residents.

A skilled nursing facility must have sufficient personnel to evacuate the residents in the event of a fire. More importantly, practice and fire drills that focus on shifts other than the day shift are vital to ensure that everyone from aides to nursing professionals know what to do and how to do it. Resident census and room information must be updated every day. A copy of the updated census and room assignments should be placed on a fire response clipboard at the nursing desk to ensure that in the event of a fire a roll-call can be conducted to ensure that all residents were safely evacuated. Ambulatory residents should know where to go and what to do in a fire, and should participate in drills at night as well as during the day. 

Rally points outside the building may look differently at night, and may be confusing. Patients with special needs (dementia, Alzheimers, etc.) and who are ambulatory may need special assistance evacuating in a fire.

There is no substitute for practice and attention to detail in fire safety. And the core of fire safety requires that sufficient staff be on hand to evacuate sleepy and confused residents in the event of a fire.

As a consumer advocate, I have frequently written and advocated against payday loans. In Missouri, for example, where there is no law that restricts the interest rates these predatory lenders can charge, some lenders get annual percentage rates as high as 400 percent. Worse, because the loans are "secured" by a check written on a checking account, the payday lender simply runs the check when the borrower cannot pay, and has the prosecuting attorney handle the matter as a criminal matter when the borrower cannot pay the bad check. Thus, the borrower may not only have to pay the posecuting attorney a fee, and the bank a fee, but may also risk a misdemeanor or felony conviction for taking out a loan.

No one thinks payday loans are a good thing except the people who need money fast and don't care about consequences, and the people who prey on these often badly-deluded individuals. Often when a victim has four or five payday loans from multiple providers, their only option to escape jail is to seek bankruptcy protection. The result is that homes and cars are lost, income streams garnished for as long as five years, employment prospects significantly impacted, and the loan provider still gets most, if not all of its money back. From a business perspective the payday loan is a good investment.  From the consumer's perspective it's a trip into hell.

Now two companies in Missouri are teaming up to offer payday loans to workers in nursing homes. In a recent story in the St. Louis Post Dispatch the newspaper reported that the presidents of two large chains of nursing homes are also the presidents of two large payday loan organizations offering loans to nursing home employees. Instead of relying on the prosecuting attorney, however, the nursing homes provide payroll deduction to the affiliated companies to satisfy the loans.  If this is beginning to sound like a bad idea, that's because it is.

The approach taken by the two companies has the appearance of double-dipping. The facilities are not only making money off the residents who are obtaining skilled nursing care services, they make money off the employees providing those services. While there is likely nothing patently unlawful about the program, it is the kind of thing that creates an inherent conflict of interest for the nursing homes. 

Suppose Sally Smith takes out a $200 payday loan on Monday, and on Tuesday is found slapping a patient. If the facility discharges the employee there is a good chance its partner loan provider loses money because there is no payroll deduction mechanism to fall back on. Does the facility fail or refuse to take action to protect its own economic interest in that situation? It should not, but there would be a significant temptation to look the other way, especially if the employee had been an otherwise good employee. 

The real problem for these nursing homes, of course, is not that there would really be a conflict of interest, but simply that there would appear to be that conflict. Perception is reality for a jury, and if an injured plaintiff could make the argument that the facility could not afford to fire its workers because the workers were in debt, it might convince a jury that an otherwise honest and competent facility was in the wrong.  For anyone with an appreciation of the history of labor in this country, this should be a wake up call.

In Sixteen Tons the late Tennessee Ernie Ford advises St. Peter not to call him home because "I owe my soul to the company store." Ford's song, released on October 17, 1955 sold 400,000 records within a few weeks and became the largest-selling record in Capitol Records history. The lyrics resonated because the coal miners portrayed in the song were real people who often received their pay in tokens that could only be spent in the company store. The company store in a place like Muhlenberg County, Kentucky, was often the only place the coal miners could shop for necessities. Without competition, a $5 personal item becomes at $10 personal item. The stores allowed the miners to charge more than their pay, in large part because the debt obligation kept the miners going back down into working conditions that were dangerous and sub-human. The labor reforms in coal mining industry of the 1950s and 1960s came about in large measure because of the public pressure generated by the song and several prominent mining disasters.

If the nursing home industry wants to invite greater scrutiny of its hiring practices and its relationships with its employees, marrying the lending business with the patient care business is the perfect way to achieve it. If, however, it wants to self-regulate, it needs to self-police. This putting payday loan providers in league with nursing home providers is a bad idea, and someone at the national level needs to stand up and say so.

I once had a boss who said that being lazy wasn't a crime, because if it was, there would never be anyone to mind the prisons.  It is human nature, sometimes, for folks to be lazy. People fail to put medication back into the refrigerator. People forget that a patient is on a bed pan. They forget to check the temperature of the food because it's almost always lukewarm anyway. People get distracted, and sometimes, they just figure that someone else will fix the problems they created.  Most people, even when they act lazy, don't intend to hurt anyone.  But sometimes it happens.

Most of the time when someone is lazy or incompetent, and someone gets hurt, the worst that can happen is that an insurance company winds up paying a settlement or a verdict from a malpractice lawsuit. If the negligence is exceptional, and the state is prone to doing something about it, sometimes a licensure action is filed against the nurses or administrators who the state feels were at fault. In egregious cases Medicare may impose sanctions. In 99% of all cases, this is the worst that can happen.

But, as the Michael Jackson controversy is making clear, there is a fallback position for the state when negligence is so bad that it becomes "gross negligence" or "criminal negligence." When that happens the state can always bring an action for involuntary manslaughter or negligent homicide.  In the Jackson case the issue relates to the inappropriate prescription of anesthesia medication.  The negligence in giving this medication without proper monitoring, it has been suggested, is tantamount to gross negligence because no reasonable practitioner would ever do it.

As the case of Alvador Thompson demonstrates, when negligence in the care of a skilled nursing facility resident results in a horrific death, and the negligence is especially troubling, the state can and often does bring criminal charges against those responsible.

In Thompson's case she was assigned to feed 79 year old Ronald Myers breakfast in October of last year. According to media reports, Myers suffered from Alzheimer's disease and was aphasic. Thompson was assigned to feed him.  Apparently she fed him steaming hot cereal, without testing the temperature of the liquids, and caused second degree burns in his esophagus.  He stopped eating and died two weeks later. The decedent's daughter told police that she had reported the incident because the facility delayed treatment for half a day.

How does a case like this get referred for criminal prosecution?  In her plea agreement and "allocution" where she testified that she was guilty, Thompson said she did not know how hot the cereal was, and she did not test it, and she should have.  Because the patient couldn't speak, she didn't know she was burning him. Anyone who has ever fed a patient knows that there is something about Thompson's story that just doesn't ring true.

Of course, even in an Alzheimer's patient, a patient whose responses to verbal stimuli will often be inappropriate, responses to painful stimuli are still present.  It is difficult to understand how Thompson could have continued to feed Myers hot cereal she did not know was hot, when Myers would likely have been reacting with a pain response. At least one source characterized the feeding as "pouring hot cream of wheat down the patient's throat."  Thus, even if she failed to test the first bite, the pain response should have alerted her to the need to check the temperature on the second bite and beyond.  Her failure to do so, and the inference that she ignored the patient's non-verbal complaints and pain response, likely contributed to her prosecution.

Frequently a prosecutor will charge voluntary manslaughter or intentional homicide, and then bargain the charge down to involuntary manslaughter in the situation where the evidence is insufficient to support a murder case. Here, although the negligence ended in the patient's death, and there was at least some indication that the actions of the aide were intentional, the state likely could not have prosecuted for intentional homicide because the aide could simply have claimed that all she wanted to do was feed the patient, she was in a hurry, and normally all hot food would do would be to burn the patient's mouth. A nurses aide might truthfully testify that she had no idea it would cause death.  Thus an involuntary manslaughter charge was likely the right call. Thompson will get between 2 and five years in prison to think about her behavior.

All nursing assistants and aides, as well as any volunteers used to help feed patients at mealtime, should be inserviced on watching for a pain response, and on the importance of testing the temperature of the food prior to feeding. Posters mounted in the feeding area advising aides to "Check the Temperature" and showing the proper method are also a good idea in risk management. In the event that an adverse event occurs, having taken such precautions tend to ensure that consequences are not visited upon nursing management or home administration.

Any aide or assistant who demonstrates a lack of empathy or an unwillingness to investigate a pain response in a patient should be counseled about that behavior. They should be told that pain responses often help keep small accidents and errors from becoming life-threatening events. And, as always, there is no substitute for active supervision of all staff in a skilled nursing facility.

Sexual Harassment Investigations

NC is hired in December 2008.  In her first week she misses work once.  In her next week, she misses work twice.  In her third and fourth weeks of December, she misses work 3 times.  Each time she says that the absence is caused by a sick family member, a child who has leukemia.

NC continues missing one to two days of work a week between January 1 and February 20.  The reason given is always that she has a sick child, deathly ill with a perilous form of cancer.  On February 21, GB, her supervisor asks for a doctor's note to substantiate the absences because he is concerned about the productivity of the work group.  On February 22, NC complains to an intermediate supervisor that GB has been sexually harassing her.

NC says she cannot go back into a workplace and see GB because it is too traumatic and painful.  She is placed on paid administrative leave while an investigation is conducted.  The investigation begins on March 4, and runs through March 29.  No evidence is found, other than NC's statements, that GB ever acted inappropriately toward her.  No one corrorborates NC's statements.  Two employees, when asked, suggest that over the course of their multi-year employment with the office that they have heard GB make remarks that were insensitive, but did not rise to the level of sexual harassment.  One of them had repeatedly asked to work for GB.

The investigation concludes with a requirement that GB take supervisory training.  A few days later this is communicated to NC, who is told to come off paid administrative leave for a job in another department.  She tells the employer she can't be in the same building with GB, and refuses.  Her lawyer sends a threatening letter.

The employer calls in GB and dismisses him for sexual harassment because of the two inappropriate remarks and NC's refusal to return to work.

Sexual harassment investigations demand attention to detail.  They are conducted, if at all possible, by at least one attorney, and are aimed at finding evidence that supports the charge leveled, not other uncharged acts of misconduct.  When the investigation is complete, the results are provided to both the accused and the accuser.  Only when the charge is sustained and the conduct is so severe it cannot be remediated is the discharge of the harasser appropriate.

NC files a charge with the state Human Rights Commission. The HRC does an investigation and concludes that the charge of discrimination cannot be supported by evidence. It issues NC a right to sue letter. NC files suit.  Investigation by GB's attorneys reveals:

• NC was convicted of making a false report of child sexual abuse against her ex-husband.
• NC accused a supervisor with a state agency of sexual harassment 5 years earlier and collected a confidential payment of $7,000. The allegations in the prior complaint are a carbon copy of the allegations in the current complaint.
• NC falsified her Pharmacy Tech license application.
• NC has been accused of slander by a former lover.
• NC was sued by her mother for custody of her children.
• NC told her therapist that at the time she was supposed to be taking her exceptionally sick child to the Mayo Clinic she was actually visiting Disneyland with her girlfriend.

A sexual harassment investigation conducted by the employer must be focused first on the conduct alleged.  The credibility of the accuser is often paramount in making a determination about whether the harassment actually happened or not.  While most organizations do some kind of background check on employees, there is often no way to ensure that a full understanding of the employee's background will emerge in an investigation.  Hiring an investigator to go out and investigate the background of the accuser might be thought of as retaliation, and is generally discouraged.  However, public sources of information (court records, state criminal records databases, etc.) are readily checked and can yield information about an employee that is often critical in assessing credibility. 

The fact that an investigation finds no support for a charge of harassment should be dispositive on the issue of whether the supervisor or harasser is permitted to retain their employment.  If a deficiency in supervisory or managerial skills is found in the investigation, these can be improved with training.

What an organization must not do, however, is generate a knee-jerk response to a charge of harassment.  Simply firing the accused harasser may seem like a simple way to solve the problem, but it complicates things immeasurably because it suggests that the organization actually found harassment but was unwilling to take the complainant seriously.  It actually works to make the case against the employer stronger, and is a very dumb thing to do.

The keys to a successful investigation are as follows:

1. Interview the complainant. Get him/her to tell you everything that was done that was considered to be harassing. Make sure they tell you everyone they told about the harassment, and everyone that witnessed it.

2. Interview the witnesses. Determine if they support or refute the employee's charges. If there is no support for the charge, the investigation may be closed at this point.

3. If the investigation finds witnesses who support the complainant in whole or in part, then the accused harasser should be interviewed and asked specifically about the relationship with the accuser. If he admits the charges, then the situation must be remediated. It is often wise to engage a professional attorney or mediator at this point to assist the employee and employer in finding a way to fix the problem. This is the case irrespective of whether the harasser is a supervisor or co-worker.

4. If there is no admission, and no supporting evidence in the form of witnesses who saw the harassment, then a limited inquiry into the supervisors relationship with other employees and into the harassers managerial skills (assuming it's a manager and not a co-worker) is often helpful to find out what's causing the perceptual issue with the complainant.

5. If the complainant files a charge with the State or Federal government, respond to the inquiry with the results of the investigation and provide access to the witnesses to facilitate the agency's investigation. Always be open and honest with a federal or state agency.

6. If the complainant requests a right to sue letter and files suit, engage counsel for the employer, and separate counsel for the accused employee.

Sexual harassment cases are complex and difficult litigation matters.  Although the above is a general guideline, it is not a substitute for qualified legal advice.

I have talked to several nurses over the past few weeks about the strange situation involving the drug Diprivan and Michael Jackson. As something of an expert on Diprivan (I have been involved in professional discipline cases involving the drug), I have to confess that I do not understand why it was given (if it was in fact given to Jackson). While the possibilities are certainly varied regarding a prosecution, the Michael Jackson case stands as an example to people who would use their access to drugs (even drugs like Diprivan, that are not controlled substances) to aid their friends and family.

Most nurses are aware of a co-worker who, during their employment, has taken a couple of Tylenol 3, Valium, or similar drug that should have been destroyed home for use by someone who they thought might need it. I once knew a nurse who brought home diuretics so that her mother could lose weight prior to a wedding. There are, of course, two good reasons not to do this. The first is that its unlawful, it's stealing, and it can get your license taken away. The second is that if the person you give a dangerous drug to has a reaction to it, and suffers some catastrophic result like Michael Jackson, you can go to jail for homicide.

There are several classes of homicide. Voluntary manslaughter is the killing, without premeditation, of another human being. Usually this is thought of as "heat of the moment" or similar situations where a person takes an action that takes a life. Involuntary manslaughter is a situation where a person acts in a negligent or reckless manner (like driving drunk) that results in the death of another. Vehicular homicide is a type of involuntary manslaughter.

Murder charges are usually leveled when someone acts intentionally to kill another, and there are various classes of murder, with the most serious being first degree murder where a person acts with premeditation, or lies in wait for their victim.

Where a health care provider acts so far outside the standard of care that it equates to acting with criminal negligence or recklessness, manslaughter charges are often brought. Several years ago Colorado authorities went after an anesthesiologist who fell asleep during a surgical procedure. The child on the table died as a result, and the doctor was prosecuted.  However, where a person acts with intent, as in the case of respiratory therapist Efren Saldivar, and kills a person intentionally, it is murder that is charged, not negligence.

The issue for the police in Los Angeles is whether anyone may have administered Diprivan to Mr. Jackson for a purpose other than the induction of anesthesia.  Although Diprivan is a procedural sedative and is used frequently to induce complete loss of consciousness, normally it is not given unless the airway is protected and the patient is being ventilated.  It is frequently given to help patients with post-surgical wounds sleep in the open-heart unit.  However, when it is given, it is always to an intubated and mechanically-ventilated patient.

Media reports, if they are to be believed, suggest that Jackson routinely got Diprivan to sleep, and that it was administered by IV drip.  When the singer wanted to waken, the doctor would stop the drip at the pre-determined time. Doing this for a patient who is not intubated would be reckless and criminally negligent because Diprivan is well-known to cause an interruption in ventilatory drive. 

Although the media has not made any mention of it, administering Diprivan without a monitor (pulse oximeter, capnograph, cardiac monitor, etc.) would also suggest gross clinical negligence. This because while a patient may seem to be ventilating well, without a patent airway the patient may simply obstruct and ventilatory efforts may continue without effect.  The only way to know that a patient is being properly monitored is to monitor pulse oximetry and cardiac rate and rhythm.  Certainly changes in these parameters would permit early detection of a catastrophic event.

If, as the media suggests, the physician in this case routinely administered Diprivan without having any protocol to monitor Mr. Jackson, he should not only face professional discipline, he should probably face criminal charges as well.

And this also serves as a lesson to those who would use their access to drugs to benefit their family or friends.  It only takes one untoward reaction, or one accidental overdose, to ruin a life, and with it, to ruin a career and your right to freedom. If you know people who routinely abuse the trust of their employers and take medications meant for destruction, in almost every state you have an ethical obligation to report that behavior.  You may never know the lives you save with such an action.

When lawyers think about sexual harassment, they tend to frame their thoughts based on cases they've handled or discussed. Usually this involves a woman being harassed by a man, although there are the rare cases where men have complained about harassment from women or from other men. These are the minority of cases. Although the advice that follows is framed in terms of being alert to claims of sexual harassment of women, the suggestions are applicable to any group of employees.

Often employees do not come right out and tell a supervisor or manager that they feel harassed by the conduct of another employee. Instead, they may take an indirect route. This is particularly common when an individual isn't well aware of the institution's policies, or where they feel disempowered. Sometimes the message to employees is that  a particular supervisor is "all powerful" and that a challenge to that supervisor or manager would be futile. In those situations employees may try to take a less obvious path to resolve a bad workplace situation. They may want to transfer to another shift, another wing of the facility, or take some other approach to getting away from the person they view as their harasser.  Frequently they won't tell the person they feel is harassing them, or anyone else, that they're feeling harassed for fear of retaliation.

Whenever an employee asks to transfer to a different shift, to a different supervisor, or a different working environment, one of the questions that must be asked is why. If the employee doesn't sound wholly committed to their answer, if they give off body language that suggests they aren't being truthful, or if they cannot meet the supervisor's eyes when having that discussion, it is a good idea to ask "do you have a problem in your workgroup?"

Some employees don't want to make waves or cause trouble, and they think that because an individual or co-worker has a longer history with the company that they are automatically more valued. So where a male co-worker is constantly hitting on a female co-worker for dates, attention or affection, the harassed employee may simply ask for a transfer as a way to obviate the sexual harassment.

This doesn't mean that a supervisor has a duty to create a case for harassment where the employee isn't forthcoming, but rather, that the supervisor has a duty to document that the employee was asked, and denied any harassment by co-workers. This is important because scores of sexual harassment cases involve multiple internal job transfers with the plaintiff making the argument that she was trying to alert the company to the hostile environment without filing a charge of discrimination.

Good supervisors have good relationships with their employees, but those relationships should not extend beyond the door of the office. Although frequently people get together for drinks and to socialize, an occasional get together with all the staff must be distinguished from "come have drinks with me." If a supervisor or manager spends time and attention on an employee who reports to them, this is a dangerous warning sign.

Similarly, where there is dysfunction in a work group, where people don't work well together, one of the things that has to be investigated is whether one person or another is engaging in conduct that is offensive or harassing. It doesn't matter if its jokes, inappropriate touching, favoritism shown on the basis of sex or race, or just a boorish attitude. If you have a problem in a work group, the company suffers. The public image of your organization suffers. You have to address it.

Finally, once every two years, or more often if needed, every employee should receive training on how to present a complaint for resolution. If an employee has a tough work environment or a problem with their boss, they should be reminded periodically that the sexual harassment policy is there for them. It is not a substitute for doing the job right.  It is not a "get out of jail free" card for substandard performance. It is, however, a way to help the organization correct behavior that is offensive or troublesome. And every complaint is an opportunity to improve the organization. That should be the message. And everyone must be told that no one will ever be retaliated against for making a complaint of sexual harassment.

In my next blog I'll detail how to conduct a sexual harassment investigation, and how not to.