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Chapter 24Tort Reform© 2014 Jones and Bartlett Pub.docx

The document highlights key topics in tort reform, employee rights, and labor relations, aiming to educate on reducing malpractice costs and ensuring employee rights and responsibilities. It discusses various methods to lower malpractice insurance expenses and outlines the principles of the employment-at-will doctrine as well as public policy exceptions. Additionally, it covers federal and state labor laws, union dynamics, and workplace discrimination while emphasizing the importance of patient and employee rights during labor disputes.

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Chapter 24 Tort Reform © 2014 Jones and Bartlett Publishers LEARNING OBJECTIVES • Describe the meaning of defensive medicine. • Describe various programs designed to lower the cost of malpractice insurance. • Describe the various ways to manage and reduce the number of negligence claims. © 2014 Jones and Bartlett Publishers Reducing Costs & Risks – I • Arbitration & Mediation • Structured Awards • Pretrial Screening Panels
• Collateral Source Rule © 2014 Jones and Bartlett Publishers Reducing Costs & Risks – II • Contingency Fee Limitations • Countersuits & Frivolous Claims • Joint & Several Liability • Malpractice Liability CAPS © 2014 Jones and Bartlett Publishers Reducing Costs & Risks – III • No-Fault System • Regulation of Insurance Practices • Physician Participation in Tort Reform © 2014 Jones and Bartlett Publishers The Answer - I • Malpractice Crisis Continues
• Many Approaches – No “One” Proven Resolution • Will Require Variety of Reforms © 2014 Jones and Bartlett Publishers The Answer - II • Need to Include all in the Solution – Caregivers – Providers – Insurers – Private Industry – Regulatory Bodies © 2014 Jones and Bartlett Publishers
Review Questions 1. Describe the various ways to reduce high malpractice awards. 2. Should there be limits placed on malpractice awards? Support your opinion. 2. How does a structured award work? 3. Which of the schemes for tort reform discussed previously do you consider most helpful in addressing the malpractice insurance crisis? © 2014 Jones and Bartlett Publishers Chapter 23
Employee Rights and Responsibilities LEARNING OBJECTIVES • Describe and understand the rights of employees. • Describe and understand the responsibilities of employees. • Explain what professionals can do to improve professional relationships between one another, as well as between caregivers and patients. Employee Rights - I • Equal Pay for Equal Work
• Refuse to participate in care vs. Patient Rights – pharmacist refusal to fill a prescriptions • Question patient care – Suggest Changing Physicians • Freedom from sexual harassment • Treated with dignity and respect Employee Rights - II • Privacy and confidentiality • Whistle-blowing • Freedom from intimidation • Privacy Rights
Employee Responsibilities - I • Compassion • Patient advocacy • Honor patient wishes • Maintain confidentiality • Adhere to Safe Practice – Comply with sterile technique protocols Employee Responsibilities - II • Adhere to Professional Standards • Protect Patients from Harm • Maintain Professional Relationships
• Maintain employee privacy and confidentiality • Report unethical behavior • Participate in Continuing Education Helpful Advice - I • Do not blame others for your mistakes. • Do not say: “We are short staffed” • Do not say that the physician is not present when he or she is. • Do not say the physician will soon be here when he or she has already left the building. • Do not say that this will not hurt, when you know it will. • Do not say that you are busy when you are not
• Take responsibility for caring and communicating. Helpful Advice - II • Include the patient in the decision-making process. • Take the time to explain to patients the risks, benefits, & alternatives to each course of treatment. • Avoid the paternalistic approach to medical care • Be careful not to get anxious, for example, because of time constraints and thus push the patient into making hasty and sometimes regretted decisions. • Show respect and sensitivity to a patient’s needs. • Show that you value the patient’s decisions. Helpful Advice - III
• Accept and honor the fact that the patient has his or own needs and desires. • Assure the patient that you will honor his or her care decisions in compliance with law. • Listen to what the patient is saying without interruption. • Do not make fun of a patient’s decision-making capacity. Patients are human and have the frailties that we all must someday endure. • Concentrate on the patient’s wishes and instructions. Helpful Advice – IV • Be firm but polite when others attempt to speak for the patient. • Honor the patient’s wishes. • Prohibit those who would demean and criticize a
patient’s wishes because of his or her frail condition. • Remember that your feelings & those of the family may be different than the feelings of the patient. However, it is the patient who faces the consequences of his or her decisions. Protect the patient’s wishes. Helpful Advice - VI • Avoid the pitfalls of prejudice and bias. • Ensure that medical information is only accessed as required for treatment and facilitating payment claim. THE CAREGIVER’S PLEDGE – I • I will be compassionate. • I will not neglect my duties and responsibilities.
• I will read instructions and follow protocols. • I will seek verification of questionable orders. • I will report concerns for patient safety. • I will not assume responsibility beyond my capability. • I will call for help when a patient’s medical needs suddenly change. • I will continuously improve my skills and participate in continuing education opportunities. Review Questions 1. Describe the rights of employees. 2. Describe the responsibilities of employees. 3. Describe what advice you would give new employees.
Chapter 22 Employment-At-Will & Discharge LEARNING OBJECTIVES – I • Discuss the “Employment at Will” doctrine. • Explain public policies that protect employees from unlawful discharge. • Describe what is meant by retaliatory discharge and how to defend a claim for unfair discharge. • Describe under what circumstances employers often
discharge an employee. • Describe effective hiring practices and the importance of clear communications. Employment-at-Will • Doctrine – Employment is at will of employer or employee • Employment may be terminated – at any time – for any or no reason • unless a contract in place specifying terms & duration of employment
An at will prerogative without limits could be suffered only in an anarchy, and there not for long; it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together. −Sides v. Duke Hospital Employment-at-Will – II • Historically – termination of for any reason widely accepted. • Growing trend toward a restricted application of the at-will employment rule whereby right of an employer to discharge at-will employee without cause – limited by either public policy considerations – or implied covenant of good faith & fair dealing.
Employment-at-Will – III • Fairly balancing rights of employee & needs of organization complex objective • Chapter provides direction in balancing act rights Employment-at-Will – IV • Embroiled in combination of legislative enactments & judicial decisions. • Some states more employer oriented. – e.g., New York • Other states in harmony with constitutional rights of employee.
– e.g., California A Civilized State “obvious and indisputable fact that in a civilized state where reciprocal legal rights & duties abound, the words "at will" can never mean "without limit or qualification," as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each person are necessarily & inherently limited by the rights of others & the interests of the public. An at will prerogative without limits could be suffered only in an anarchy . . . . −Sides v. Duke Hosp. Public Policy Issues – I • Public policy originates with legislative enactments.
• Public policy exceptions to the employment- at-will doctrine – employees may not be terminated for reasons contrary to public policy (see next two slides) Public Policy Issues – II • Disability • Age • Race • Color • Religion • Sex • National origin • Pregnancy Public Policy Issues – III • Union Membership
• Filing of safety violation complaints – e.g., OSHA • Whistle-blowing – Whistle-Blower Suit Untimely – Text Case: Paving Her Way to Heaven • Reporting patient abuse – Elder abuse – Child abuse Public Policy Issues – VI “It can be said that public policy concerns what is right and just and what affects the citizens of the state collectively. It is to be found in the states constitution and statutes and, when
they are silent, in its judicial decisions.” −Palmateer v. International Harvester Co. Employment Issues • Retaliatory Discharge – Cannot be used as a means of oppression – employer does not enjoy an absolute or totally unfettered right to discharge even an at-will employee. • Fairness the Ultimate Test – Defending a Claim of Unfair Discharge Termination – I • Employment Disclaimers
– denial of a right that is imputed to a person or that is alleged to belong to him or her • Termination for Cause • Termination and Financial Necessity • Hostile Attitude • Poor Work Performance • Alcoholism • Insubordinate Behavior Defending Wrongful Termination Case – I • Meeting minutes • Written reports, typed or handwritten • Personnel file • Tapes
• Letters, cards, and handwritten notes • Personnel handbook • Personnel and departmental policies and procedures books • Oral testimony from fellow employees and supervisors Constructive Discharge • Work environment where an employee is pushed to quit a job – employer has made working conditions intolerable • Employee must prove 1.working conditions were constructively made intolerable 2.continuous pattern of employer misconduct
3.any reasonable person would or did resign Termination Questions to Ask – I • Was there a violation of public policy? • Was discharge being retaliatory in nature? • Was there a refusal to perform an illegal act? • Was the employee questioning a management practice? • Was termination arbitrary and capricious decision? Termination Questions to Ask – II • Was there a violation of any contract, oral or written?
– consistent with the reasons for discharge? • Was there discrimination against the employee for filing a lawsuit? • Was there interference with an employee’s rights as secured by the laws or Constitution of the United States (e.g., right to freedom of speech)? Termination Questions to Ask – III • Was termination fixed? – don’t confuse me with the facts • “I’ve made up my mind!” – foregone conclusion – before any appeal actions can be taken
Effective Hiring Practices – I • Clear Policies & Procedures – hiring – disciplining – terminating • P & Ps & Handbooks – reserve right to add, delete, revise • Application • Background checks Effective Hiring Practices – II • Familiarity with state laws • Interviews
– human resources – Supervisor • References – follow up with a telephone reference • Employee handbook & job description – document employee read, & understood handbook & job description Effective Hiring Practices – III • Constructive performance evaluations • Progressive disciplinary action policy • In-service education programs – interviewing techniques – performance evaluations
– disciplinary actions • Contract language CLEAR COMMUNICATIONS • Communicate clearly to prospective employees – employment is at will – employment can be terminated at any time • Handbooks & personnel manuals – fair & unambiguous standards REVIEW QUESTIONS – I 1. Discuss the employment at-will doctrine.
2. Is employment-at-will doctrine appropriate in today's society? Discuss your answer. 3. What are public policy exceptions to employment-at-will doctrine? REVIEW QUESTIONS – II 4. Discuss questions employer should ask prior to discharging an employee. 5. What approach might you take in defending a case for wrongful discharge? 6. Discuss what hiring practices an employer can put into action to help reduce necessity for discharging an employee.
Chapter 21 Labor Relations LEARNING OBJECTIVES • Explain the various federal and state labor acts. • Discuss the rights and responsibilities of unions and management. • Describe the purpose of an “Affirmative Action Plan.” • Describe a patient’s rights during labor disputes. • Discuss the types of discrimination that occur in the workplace. Federal & State Labor Laws
• Relationships between employees & employers are regulated by state & federal laws. • Federal laws generally take precedence over state laws when there is conflict between state & federal laws. • State laws generally applicable when more rigid than federal laws. U.S. Department of Labor • Cabinet level department • Functions – promote welfare of wage earners – improve working conditions – advance opportunities for profitable
employment National Labor Relations Act – I • Enacted 1935 to govern labor-management relations of business firms engaged in interstate commerce. • Act defines certain conduct of employers & employees as unfair labor practices – provides for hearings on complaints that such practices have occurred. National Labor Relations Act – II • Act modified by – Taft-Hartley amendments of 1947 – Landrum-Griffin amendments of 1959
National Labor Relations Board – I • NLRB enforces & administers the NLRA – has jurisdiction over matters involving proprietary & not-for-profit health care organizations. – agency independent of department of labor, that is responsible for preventing & remedying unfair labor practices by employers & labor organizations. National Labor Relations Board – II • Unions & Healthcare Orgs – Through mid-1930s, little union organizational • slow growth until late 1950s.
– Union activity successful in geographic areas in which unions have been active in other industries – Limitations on # of bargaining units • employees can form up to 8 bargaining units • upheld by U.S. Supreme Ct. National Labor Relations Board – III • Elections – NLRA sets out procedures by which employees may select a union as their collective bargaining representative to negotiate employment and contract matters. • Unfair Labor Practices – Unlawful Interrogation
– Failure to Discharge Non-Dues Paying Nurses Norris-LaGuardia Act • Aimed at reducing number of injunctions to restrain strikes & picketing. • Sets procedures for handling labor disputes. • Creates board of inquiry if a dispute threatens to interrupt health care. • Board’s findings provide framework for arbitrators’ decisions. Labor-Management Reporting & Disclosure Act • Places controls on labor unions & relationships between unions & membership.
• Requires employers to report payments to representatives of labor orgs. • Expenditures made to influence way employees exercise rights. • Disclosure of agreements with labor consultants. Fair Labor Standards Act • Establishes – minimum wages – maximum hours of employment – overtime pay provisions – exempt employees provisions – work week options
Civil Rights Act of 1964 • Prohibits private employers & state & local governments from discrimination in employment in any business on basis of: – race, – color, – religion, – sex, or – national origin. OSHA – I • Sets & enforces safety standards • Provides training, outreach, & education
• Establishes partnerships • Encourages continual improvement in workplace safety & health OSHA – II • Promulgation & Enforcement of OSHA Standards • Recordkeeping • Education • Infectious Body Fluids • Employee Complaints • State Regulation • Legal Liability
Rehabilitation Act of 1973 • Protection for handicapped employees • Applied to public & private orgs • Requirement to perform self-evaluation of compliance • Jobs must not be designed to eliminate hiring of disabled persons Family and Medical Leave Act – I • Enacted to grant employees temporary medical leave under certain circumstances. • Covered employers must grant eligible employees up to a total of 12 workweeks of unpaid leave during any 12-month period.
Family and Medical Leave Act – II • Leave granted for: – birth & care of employee’s child. – placement of adopted or foster child with employee. – care of immediate family member (spouse, child, or parent) with a serious health condition. – inability to work because of serious health condition. Family and Medical Leave Act – III • Illegal to terminate health insurance coverage for an employee on FMLA leave.
• Following FMLA leave, employee’s job—or an equivalent job with equivalent pay, benefits, & other terms & conditions of employment— must be restored. State Labor Laws – I • Laws Vary State to State – Union Security Contracts and Right-to-Work Laws – Wage and Hour Laws State Labor Laws – Union Security Contracts • Closed shop contract • Union shop contract
• Some state statutes forbid such contracts • Right-to-work laws • Wage & hour laws State Labor Laws – III • Child Labor Acts – working papers – forbids employment of minors at night – prohibits minors from operating certain machinery • Workers’ Compensation – physical injury – job stress
– influenza Vaccination Labor Rights • Organize & bargain collectively • Solicit & distribute union info • Picket • Strike Management Rights • Receive a strike notice • Hire replacement workers • Restrict union activity • Prohibit union activity during working hrs
• Prohibit supervisors from participating union activity Patient Rights & labor Disputes • Patient rights take precedence over labor- management rights • Patients have right to – privacy – well-being Affirmative Action Plan – I • Prohibits discrimination on basis of age, race, color, religion, sex, national origin. • Affirmative action program includes
– collection & analysis of data on the race and sex of all applicants for employment. – non-discrimination clause in manuals. – use of data to show compliance with the law. Affirmative Action Plan – II • Failure to comply can result in denial of federal funds. • Health care orgs should have equal employment opportunity or affirmative action plan in place. Injunctions • Court order directing that a certain act be
performed or not performed. – Persons who fail to comply with court orders are said to be in contempt of court. • Earliest use of injunctions in labor relations was by employers to stop strikes or picketing by employees. • Availability of injunctive relief limited. Administering Collective Bargaining Agreement • Administered in “good faith” • Supervisors should familiarize themselves with the agreement • Importance of recordkeeping • Grievance procedures
• Arbitration Workplace Discrimination – Age • Discrimination in Employment Act • Promotes employment of older persons • Prima facie case 1.complainant is in a protected age group 2.complainant is qualified for his or her job 3.complainant was discharged 4.discharge occurred in circumstances that give rise to inference of age discrimination Workplace Discrimination – Disability • Americans with Disabilities Act
– enacted by Congress to prohibit age discrimination • Tips for Employers – train managers as to ADA requirements – review & revise job descriptions for compliance – bring physical environment into compliance – post notice describing purpose of ADA Workplace Discrimination – III • National Origin • Pay Discrimination • Pregnancy Discrimination • Race
• Religion • Sex Sexual Harassment • Unwelcomed sexual advance • Request for sexual favors • Verbal or physical conduct of a sexual nature • Creating an environment that is unreasonably intimidating or offensive Preventing Sexual Harassment • Implement an anti-harassment policy. • Prompt action to prevent & correct any
harassment. • Encourage employees to promptly report harassment. REVIEW QUESTIONS – I 1. Provide a general overview of the NLRA. 2. Using the hospital as a setting, give two examples of what would violate the NLRA. 3. How do patients' rights come into play during a strike by nurses? 4. What is the purpose of OSHA? REVIEW QUESTIONS – II 5. Why was the Norris-LaGuardia Act enacted by Congress?
6. Discuss various ways in which discrimination can occur in the workplace. 7. What steps can an organization take to prevent successful lawsuit brought forward on the basis of sexual harassment. Chapter 20 Professional Liability Insurance LEARNING OBJECTIVES • Describe the purpose of an insurance policy including risk categories and the importance of professionals to carry professional liability insurance.
• Explain the elements and conditions of an insurance policy. • Describe the investigation and settlement of claims. Insurance Policy • Insurance is a contract that creates legal obligations on the part of both the insured and insurer. – Insurer agrees to assume certain risks of the insured for consideration or payment of a premium. • Insurer promises to pay specific amount of money if specified event takes place. Liability Insurance
• Purpose of liability insurance is to spread risk of economic loss among members of a group who share common risks. • As risks increase, premiums increase to cover associated risks. • Premiums are placed in shared risk fund – funds are drawn to cover costs of lawsuits. Elements of Insurance Policy 1. Identification of Risk Covered 2. Specific Amount Payable 3. Specified Occurrence Risk Categories
1. Property loss or damage 2. Personal injury 1. illness 2. accident 3. Liability 1. professional Insurance: Policy Types 1. Occurrence 2. Claims-made 3. Tail coverage 4. Umbrella
Uninsured Claims • Intentional Torts • Criminal Acts – Child Abuse – Senior Abuse – Sexual Assaults • Fraud Review Case: Sexual Assault 1. Does sexual assault generally constitute rendering professional services within the coverage provisions of a physician's insurance policy?
2. Should a malpractice insurer be required to indemnify a physician for liability resulting from the sexual assault of a minor? NO!!! • Sexual assault does not constitute rendering professional services within coverage provisions of a physician's insurance policy. • The Supreme Court of Nebraska in R.W. v. Schrein held that sexual assault does not constitute rendering professional service. – Five patients claimed they were sexually assaulted during examination & treatment. Insurance Policy Conditions • Notice of Occurrence
• Notice of Claim • Cooperation of the insured • Co-insurance • Assignment • Subrogation • Cancellation Liability of the Professional - I • Need for Insurance: All professionals – allied health professionals • insurance relatively inexpensive • Protect yourself
– Don’t practice without insurance – Prepare for the worst scenario; have no regrets – Seldom occurrence, but employer could seek recovery of losses from negligent employee Liability of the Professional - II • Volunteer at a clinic or health fair not sponsored by his or her employer • Independent contractor providing a service in a patient’s home • Worker for an independent agency or registry Medical Liability Insurance • Coverage
– Malpractice – Acts or omissions in care – Coverage varies company to company Self- Insurance • Against malpractice risks – due to high costs of primary coverage – actuary to determine the proper level of funding • Purchase excess coverage Protecting the Organization • Self-insurance • Trustee coverage
• Mandated medical staff insurance coverage • Investigation & settlement of claims Investigation and Settlement • Duty of insurer to defend insured • Insurer can settle claims • Plaintiff/s sign a general release upon settlement REVIEW QUESTIONS – I 1. Describe the elements of an insurance policy 2. Describe the conditions of an insurance policy as described in this chapter. 3. Under what circumstances do you think a health
care professional be self-insured? 4. Why do insurance carriers require “timely” notice of a claim? 5. Describe what occurrences an insurance policy does not cover.

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Chapter 24Tort Reform© 2014 Jones and Bartlett Pub.docx

  • 1.
    Chapter 24 Tort Reform ©2014 Jones and Bartlett Publishers LEARNING OBJECTIVES • Describe the meaning of defensive medicine. • Describe various programs designed to lower the cost of malpractice insurance. • Describe the various ways to manage and reduce the number of negligence claims. © 2014 Jones and Bartlett Publishers Reducing Costs & Risks – I • Arbitration & Mediation • Structured Awards • Pretrial Screening Panels
  • 2.
    • Collateral SourceRule © 2014 Jones and Bartlett Publishers Reducing Costs & Risks – II • Contingency Fee Limitations • Countersuits & Frivolous Claims • Joint & Several Liability • Malpractice Liability CAPS © 2014 Jones and Bartlett Publishers Reducing Costs & Risks – III • No-Fault System • Regulation of Insurance Practices • Physician Participation in Tort Reform © 2014 Jones and Bartlett Publishers The Answer - I • Malpractice Crisis Continues
  • 3.
    • Many Approaches– No “One” Proven Resolution • Will Require Variety of Reforms © 2014 Jones and Bartlett Publishers The Answer - II • Need to Include all in the Solution – Caregivers – Providers – Insurers – Private Industry – Regulatory Bodies © 2014 Jones and Bartlett Publishers
  • 4.
    Review Questions 1. Describethe various ways to reduce high malpractice awards. 2. Should there be limits placed on malpractice awards? Support your opinion. 2. How does a structured award work? 3. Which of the schemes for tort reform discussed previously do you consider most helpful in addressing the malpractice insurance crisis? © 2014 Jones and Bartlett Publishers Chapter 23
  • 5.
    Employee Rights and Responsibilities LEARNINGOBJECTIVES • Describe and understand the rights of employees. • Describe and understand the responsibilities of employees. • Explain what professionals can do to improve professional relationships between one another, as well as between caregivers and patients. Employee Rights - I • Equal Pay for Equal Work
  • 6.
    • Refuse toparticipate in care vs. Patient Rights – pharmacist refusal to fill a prescriptions • Question patient care – Suggest Changing Physicians • Freedom from sexual harassment • Treated with dignity and respect Employee Rights - II • Privacy and confidentiality • Whistle-blowing • Freedom from intimidation • Privacy Rights
  • 7.
    Employee Responsibilities -I • Compassion • Patient advocacy • Honor patient wishes • Maintain confidentiality • Adhere to Safe Practice – Comply with sterile technique protocols Employee Responsibilities - II • Adhere to Professional Standards • Protect Patients from Harm • Maintain Professional Relationships
  • 8.
    • Maintain employeeprivacy and confidentiality • Report unethical behavior • Participate in Continuing Education Helpful Advice - I • Do not blame others for your mistakes. • Do not say: “We are short staffed” • Do not say that the physician is not present when he or she is. • Do not say the physician will soon be here when he or she has already left the building. • Do not say that this will not hurt, when you know it will. • Do not say that you are busy when you are not
  • 9.
    • Take responsibilityfor caring and communicating. Helpful Advice - II • Include the patient in the decision-making process. • Take the time to explain to patients the risks, benefits, & alternatives to each course of treatment. • Avoid the paternalistic approach to medical care • Be careful not to get anxious, for example, because of time constraints and thus push the patient into making hasty and sometimes regretted decisions. • Show respect and sensitivity to a patient’s needs. • Show that you value the patient’s decisions. Helpful Advice - III
  • 10.
    • Accept andhonor the fact that the patient has his or own needs and desires. • Assure the patient that you will honor his or her care decisions in compliance with law. • Listen to what the patient is saying without interruption. • Do not make fun of a patient’s decision-making capacity. Patients are human and have the frailties that we all must someday endure. • Concentrate on the patient’s wishes and instructions. Helpful Advice – IV • Be firm but polite when others attempt to speak for the patient. • Honor the patient’s wishes. • Prohibit those who would demean and criticize a
  • 11.
    patient’s wishes becauseof his or her frail condition. • Remember that your feelings & those of the family may be different than the feelings of the patient. However, it is the patient who faces the consequences of his or her decisions. Protect the patient’s wishes. Helpful Advice - VI • Avoid the pitfalls of prejudice and bias. • Ensure that medical information is only accessed as required for treatment and facilitating payment claim. THE CAREGIVER’S PLEDGE – I • I will be compassionate. • I will not neglect my duties and responsibilities.
  • 12.
    • I willread instructions and follow protocols. • I will seek verification of questionable orders. • I will report concerns for patient safety. • I will not assume responsibility beyond my capability. • I will call for help when a patient’s medical needs suddenly change. • I will continuously improve my skills and participate in continuing education opportunities. Review Questions 1. Describe the rights of employees. 2. Describe the responsibilities of employees. 3. Describe what advice you would give new employees.
  • 13.
    Chapter 22 Employment-At-Will & Discharge LEARNINGOBJECTIVES – I • Discuss the “Employment at Will” doctrine. • Explain public policies that protect employees from unlawful discharge. • Describe what is meant by retaliatory discharge and how to defend a claim for unfair discharge. • Describe under what circumstances employers often
  • 14.
    discharge an employee. •Describe effective hiring practices and the importance of clear communications. Employment-at-Will • Doctrine – Employment is at will of employer or employee • Employment may be terminated – at any time – for any or no reason • unless a contract in place specifying terms & duration of employment
  • 15.
    An at willprerogative without limits could be suffered only in an anarchy, and there not for long; it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together. −Sides v. Duke Hospital Employment-at-Will – II • Historically – termination of for any reason widely accepted. • Growing trend toward a restricted application of the at-will employment rule whereby right of an employer to discharge at-will employee without cause – limited by either public policy considerations – or implied covenant of good faith & fair dealing.
  • 16.
    Employment-at-Will – III •Fairly balancing rights of employee & needs of organization complex objective • Chapter provides direction in balancing act rights Employment-at-Will – IV • Embroiled in combination of legislative enactments & judicial decisions. • Some states more employer oriented. – e.g., New York • Other states in harmony with constitutional rights of employee.
  • 17.
    – e.g., California ACivilized State “obvious and indisputable fact that in a civilized state where reciprocal legal rights & duties abound, the words "at will" can never mean "without limit or qualification," as so much of the discussion and the briefs of the defendants imply; for in such a state the rights of each person are necessarily & inherently limited by the rights of others & the interests of the public. An at will prerogative without limits could be suffered only in an anarchy . . . . −Sides v. Duke Hosp. Public Policy Issues – I • Public policy originates with legislative enactments.
  • 18.
    • Public policyexceptions to the employment- at-will doctrine – employees may not be terminated for reasons contrary to public policy (see next two slides) Public Policy Issues – II • Disability • Age • Race • Color • Religion • Sex • National origin • Pregnancy Public Policy Issues – III • Union Membership
  • 19.
    • Filing ofsafety violation complaints – e.g., OSHA • Whistle-blowing – Whistle-Blower Suit Untimely – Text Case: Paving Her Way to Heaven • Reporting patient abuse – Elder abuse – Child abuse Public Policy Issues – VI “It can be said that public policy concerns what is right and just and what affects the citizens of the state collectively. It is to be found in the states constitution and statutes and, when
  • 20.
    they are silent,in its judicial decisions.” −Palmateer v. International Harvester Co. Employment Issues • Retaliatory Discharge – Cannot be used as a means of oppression – employer does not enjoy an absolute or totally unfettered right to discharge even an at-will employee. • Fairness the Ultimate Test – Defending a Claim of Unfair Discharge Termination – I • Employment Disclaimers
  • 21.
    – denial ofa right that is imputed to a person or that is alleged to belong to him or her • Termination for Cause • Termination and Financial Necessity • Hostile Attitude • Poor Work Performance • Alcoholism • Insubordinate Behavior Defending Wrongful Termination Case – I • Meeting minutes • Written reports, typed or handwritten • Personnel file • Tapes
  • 22.
    • Letters, cards,and handwritten notes • Personnel handbook • Personnel and departmental policies and procedures books • Oral testimony from fellow employees and supervisors Constructive Discharge • Work environment where an employee is pushed to quit a job – employer has made working conditions intolerable • Employee must prove 1.working conditions were constructively made intolerable 2.continuous pattern of employer misconduct
  • 23.
    3.any reasonable personwould or did resign Termination Questions to Ask – I • Was there a violation of public policy? • Was discharge being retaliatory in nature? • Was there a refusal to perform an illegal act? • Was the employee questioning a management practice? • Was termination arbitrary and capricious decision? Termination Questions to Ask – II • Was there a violation of any contract, oral or written?
  • 24.
    – consistent withthe reasons for discharge? • Was there discrimination against the employee for filing a lawsuit? • Was there interference with an employee’s rights as secured by the laws or Constitution of the United States (e.g., right to freedom of speech)? Termination Questions to Ask – III • Was termination fixed? – don’t confuse me with the facts • “I’ve made up my mind!” – foregone conclusion – before any appeal actions can be taken
  • 25.
    Effective Hiring Practices– I • Clear Policies & Procedures – hiring – disciplining – terminating • P & Ps & Handbooks – reserve right to add, delete, revise • Application • Background checks Effective Hiring Practices – II • Familiarity with state laws • Interviews
  • 26.
    – human resources –Supervisor • References – follow up with a telephone reference • Employee handbook & job description – document employee read, & understood handbook & job description Effective Hiring Practices – III • Constructive performance evaluations • Progressive disciplinary action policy • In-service education programs – interviewing techniques – performance evaluations
  • 27.
    – disciplinary actions •Contract language CLEAR COMMUNICATIONS • Communicate clearly to prospective employees – employment is at will – employment can be terminated at any time • Handbooks & personnel manuals – fair & unambiguous standards REVIEW QUESTIONS – I 1. Discuss the employment at-will doctrine.
  • 28.
    2. Is employment-at-willdoctrine appropriate in today's society? Discuss your answer. 3. What are public policy exceptions to employment-at-will doctrine? REVIEW QUESTIONS – II 4. Discuss questions employer should ask prior to discharging an employee. 5. What approach might you take in defending a case for wrongful discharge? 6. Discuss what hiring practices an employer can put into action to help reduce necessity for discharging an employee.
  • 29.
    Chapter 21 Labor Relations LEARNINGOBJECTIVES • Explain the various federal and state labor acts. • Discuss the rights and responsibilities of unions and management. • Describe the purpose of an “Affirmative Action Plan.” • Describe a patient’s rights during labor disputes. • Discuss the types of discrimination that occur in the workplace. Federal & State Labor Laws
  • 30.
    • Relationships betweenemployees & employers are regulated by state & federal laws. • Federal laws generally take precedence over state laws when there is conflict between state & federal laws. • State laws generally applicable when more rigid than federal laws. U.S. Department of Labor • Cabinet level department • Functions – promote welfare of wage earners – improve working conditions – advance opportunities for profitable
  • 31.
    employment National Labor RelationsAct – I • Enacted 1935 to govern labor-management relations of business firms engaged in interstate commerce. • Act defines certain conduct of employers & employees as unfair labor practices – provides for hearings on complaints that such practices have occurred. National Labor Relations Act – II • Act modified by – Taft-Hartley amendments of 1947 – Landrum-Griffin amendments of 1959
  • 32.
    National Labor RelationsBoard – I • NLRB enforces & administers the NLRA – has jurisdiction over matters involving proprietary & not-for-profit health care organizations. – agency independent of department of labor, that is responsible for preventing & remedying unfair labor practices by employers & labor organizations. National Labor Relations Board – II • Unions & Healthcare Orgs – Through mid-1930s, little union organizational • slow growth until late 1950s.
  • 33.
    – Union activitysuccessful in geographic areas in which unions have been active in other industries – Limitations on # of bargaining units • employees can form up to 8 bargaining units • upheld by U.S. Supreme Ct. National Labor Relations Board – III • Elections – NLRA sets out procedures by which employees may select a union as their collective bargaining representative to negotiate employment and contract matters. • Unfair Labor Practices – Unlawful Interrogation
  • 34.
    – Failure toDischarge Non-Dues Paying Nurses Norris-LaGuardia Act • Aimed at reducing number of injunctions to restrain strikes & picketing. • Sets procedures for handling labor disputes. • Creates board of inquiry if a dispute threatens to interrupt health care. • Board’s findings provide framework for arbitrators’ decisions. Labor-Management Reporting & Disclosure Act • Places controls on labor unions & relationships between unions & membership.
  • 35.
    • Requires employersto report payments to representatives of labor orgs. • Expenditures made to influence way employees exercise rights. • Disclosure of agreements with labor consultants. Fair Labor Standards Act • Establishes – minimum wages – maximum hours of employment – overtime pay provisions – exempt employees provisions – work week options
  • 36.
    Civil Rights Actof 1964 • Prohibits private employers & state & local governments from discrimination in employment in any business on basis of: – race, – color, – religion, – sex, or – national origin. OSHA – I • Sets & enforces safety standards • Provides training, outreach, & education
  • 37.
    • Establishes partnerships •Encourages continual improvement in workplace safety & health OSHA – II • Promulgation & Enforcement of OSHA Standards • Recordkeeping • Education • Infectious Body Fluids • Employee Complaints • State Regulation • Legal Liability
  • 38.
    Rehabilitation Act of1973 • Protection for handicapped employees • Applied to public & private orgs • Requirement to perform self-evaluation of compliance • Jobs must not be designed to eliminate hiring of disabled persons Family and Medical Leave Act – I • Enacted to grant employees temporary medical leave under certain circumstances. • Covered employers must grant eligible employees up to a total of 12 workweeks of unpaid leave during any 12-month period.
  • 39.
    Family and MedicalLeave Act – II • Leave granted for: – birth & care of employee’s child. – placement of adopted or foster child with employee. – care of immediate family member (spouse, child, or parent) with a serious health condition. – inability to work because of serious health condition. Family and Medical Leave Act – III • Illegal to terminate health insurance coverage for an employee on FMLA leave.
  • 40.
    • Following FMLAleave, employee’s job—or an equivalent job with equivalent pay, benefits, & other terms & conditions of employment— must be restored. State Labor Laws – I • Laws Vary State to State – Union Security Contracts and Right-to-Work Laws – Wage and Hour Laws State Labor Laws – Union Security Contracts • Closed shop contract • Union shop contract
  • 41.
    • Some statestatutes forbid such contracts • Right-to-work laws • Wage & hour laws State Labor Laws – III • Child Labor Acts – working papers – forbids employment of minors at night – prohibits minors from operating certain machinery • Workers’ Compensation – physical injury – job stress
  • 42.
    – influenza Vaccination LaborRights • Organize & bargain collectively • Solicit & distribute union info • Picket • Strike Management Rights • Receive a strike notice • Hire replacement workers • Restrict union activity • Prohibit union activity during working hrs
  • 43.
    • Prohibit supervisorsfrom participating union activity Patient Rights & labor Disputes • Patient rights take precedence over labor- management rights • Patients have right to – privacy – well-being Affirmative Action Plan – I • Prohibits discrimination on basis of age, race, color, religion, sex, national origin. • Affirmative action program includes
  • 44.
    – collection &analysis of data on the race and sex of all applicants for employment. – non-discrimination clause in manuals. – use of data to show compliance with the law. Affirmative Action Plan – II • Failure to comply can result in denial of federal funds. • Health care orgs should have equal employment opportunity or affirmative action plan in place. Injunctions • Court order directing that a certain act be
  • 45.
    performed or notperformed. – Persons who fail to comply with court orders are said to be in contempt of court. • Earliest use of injunctions in labor relations was by employers to stop strikes or picketing by employees. • Availability of injunctive relief limited. Administering Collective Bargaining Agreement • Administered in “good faith” • Supervisors should familiarize themselves with the agreement • Importance of recordkeeping • Grievance procedures
  • 46.
    • Arbitration Workplace Discrimination– Age • Discrimination in Employment Act • Promotes employment of older persons • Prima facie case 1.complainant is in a protected age group 2.complainant is qualified for his or her job 3.complainant was discharged 4.discharge occurred in circumstances that give rise to inference of age discrimination Workplace Discrimination – Disability • Americans with Disabilities Act
  • 47.
    – enacted byCongress to prohibit age discrimination • Tips for Employers – train managers as to ADA requirements – review & revise job descriptions for compliance – bring physical environment into compliance – post notice describing purpose of ADA Workplace Discrimination – III • National Origin • Pay Discrimination • Pregnancy Discrimination • Race
  • 48.
    • Religion • Sex SexualHarassment • Unwelcomed sexual advance • Request for sexual favors • Verbal or physical conduct of a sexual nature • Creating an environment that is unreasonably intimidating or offensive Preventing Sexual Harassment • Implement an anti-harassment policy. • Prompt action to prevent & correct any
  • 49.
    harassment. • Encourage employeesto promptly report harassment. REVIEW QUESTIONS – I 1. Provide a general overview of the NLRA. 2. Using the hospital as a setting, give two examples of what would violate the NLRA. 3. How do patients' rights come into play during a strike by nurses? 4. What is the purpose of OSHA? REVIEW QUESTIONS – II 5. Why was the Norris-LaGuardia Act enacted by Congress?
  • 50.
    6. Discuss variousways in which discrimination can occur in the workplace. 7. What steps can an organization take to prevent successful lawsuit brought forward on the basis of sexual harassment. Chapter 20 Professional Liability Insurance LEARNING OBJECTIVES • Describe the purpose of an insurance policy including risk categories and the importance of professionals to carry professional liability insurance.
  • 51.
    • Explain theelements and conditions of an insurance policy. • Describe the investigation and settlement of claims. Insurance Policy • Insurance is a contract that creates legal obligations on the part of both the insured and insurer. – Insurer agrees to assume certain risks of the insured for consideration or payment of a premium. • Insurer promises to pay specific amount of money if specified event takes place. Liability Insurance
  • 52.
    • Purpose ofliability insurance is to spread risk of economic loss among members of a group who share common risks. • As risks increase, premiums increase to cover associated risks. • Premiums are placed in shared risk fund – funds are drawn to cover costs of lawsuits. Elements of Insurance Policy 1. Identification of Risk Covered 2. Specific Amount Payable 3. Specified Occurrence Risk Categories
  • 53.
    1. Property lossor damage 2. Personal injury 1. illness 2. accident 3. Liability 1. professional Insurance: Policy Types 1. Occurrence 2. Claims-made 3. Tail coverage 4. Umbrella
  • 54.
    Uninsured Claims • IntentionalTorts • Criminal Acts – Child Abuse – Senior Abuse – Sexual Assaults • Fraud Review Case: Sexual Assault 1. Does sexual assault generally constitute rendering professional services within the coverage provisions of a physician's insurance policy?
  • 55.
    2. Should amalpractice insurer be required to indemnify a physician for liability resulting from the sexual assault of a minor? NO!!! • Sexual assault does not constitute rendering professional services within coverage provisions of a physician's insurance policy. • The Supreme Court of Nebraska in R.W. v. Schrein held that sexual assault does not constitute rendering professional service. – Five patients claimed they were sexually assaulted during examination & treatment. Insurance Policy Conditions • Notice of Occurrence
  • 56.
    • Notice ofClaim • Cooperation of the insured • Co-insurance • Assignment • Subrogation • Cancellation Liability of the Professional - I • Need for Insurance: All professionals – allied health professionals • insurance relatively inexpensive • Protect yourself
  • 57.
    – Don’t practicewithout insurance – Prepare for the worst scenario; have no regrets – Seldom occurrence, but employer could seek recovery of losses from negligent employee Liability of the Professional - II • Volunteer at a clinic or health fair not sponsored by his or her employer • Independent contractor providing a service in a patient’s home • Worker for an independent agency or registry Medical Liability Insurance • Coverage
  • 58.
    – Malpractice – Actsor omissions in care – Coverage varies company to company Self- Insurance • Against malpractice risks – due to high costs of primary coverage – actuary to determine the proper level of funding • Purchase excess coverage Protecting the Organization • Self-insurance • Trustee coverage
  • 59.
    • Mandated medicalstaff insurance coverage • Investigation & settlement of claims Investigation and Settlement • Duty of insurer to defend insured • Insurer can settle claims • Plaintiff/s sign a general release upon settlement REVIEW QUESTIONS – I 1. Describe the elements of an insurance policy 2. Describe the conditions of an insurance policy as described in this chapter. 3. Under what circumstances do you think a health
  • 60.
    care professional beself-insured? 4. Why do insurance carriers require “timely” notice of a claim? 5. Describe what occurrences an insurance policy does not cover.