Originally published December 5, 2005
Hospitals, like all other employers, seek to avoid litigation and contentious disputes with their former employees. Many of them use a seemingly innocuous litigation-avoidance technique: refusing to answer substantive questions about a former employee when a prospective employer conducts a reference check. The standard response--widely adopted after a few large jury verdicts against employers who provided adverse reference information in the 1980s--is that "We only confirm dates of employment and position held." But hospitals should take note: Dodging this risk only creates another.
Hospitals, after all, are not making parts for a telephone or widgets in an assembly line. When hospitals refuse to provide substantive answers in response to a reference check by a prospective employer of a former employee who had been involved in patient care, they are making it harder for the prospective employer to make an intelligent decision about whether the caregiver should be entrusted with patients. Particularly where patient care may be involved, hospitals should ensure that the prospective employer is not stonewalled when it seeks information.
The practice of giving only "name, rank and serial number" or even less information has recently come under scrutiny in two high-profile cases. In the more recent case, decided in May 2005 by a federal judge, a Louisiana medical center did not provide reference information about a former anesthesiologist who sought subsequent work with a hospital in Washington state. The anesthesiologist's association with the Louisiana facility had ended because of his suspected abuse of Demerol.
The hospital in Washington hired this anesthesiologist, where he was then involved in a botched routine surgery in which a patient was seriously injured. The Washington hospital ultimately paid $7.5 million to settle the patient's malpractice case.
The Washington facility then sued the Louisiana hospital for its failure or refusal to provide meaningful information about the anesthesiologist. The federal judge held that the suit could proceed because the cost of imposing a duty to disclose in this type of situation "is clearly outweighed by the benefits of a hospital not knowingly passing on an impaired doctor to another unsuspecting healthcare provider."
A similar conclusion was reached in the "court of public opinion" after a nurse in Pennsylvania and New Jersey, Charles Cullen, was able to move from hospital to hospital, intentionally killing patients at each. A story on the Web site of CBS News' 60 Minutes asked how Cullen could "have worked at 10 different hospitals in New Jersey and Pennsylvania, over a period of 16 years-despite the fact that at seven of those hospitals, he was under investigation, fired or forced to resign?" The answer, according to 60 Minutes, "Apparently, not one of those institutions gave Cullen a bad reference, or told other hospitals he was trouble. It amounted to a policy of `See no evil, speak no evil'-one that gave Cullen, in effect, a license to kill."
The New York Times, similarly, stated that employers "frequently refuse to pass on negative information, even about people they have fired, for fear of being sued for slander by the former employee." For this reason, the Times said, Cullen's career "could have seemed unremarkable to hospitals hiring him."
Both of these disturbing precedents provide compelling arguments for a change in policy. Whether or not the court's decision in the Louisiana case would be adopted as the legal rule in other jurisdictions, it appears difficult to argue with its conclusions on purely moral or common sense grounds.
In short, hospitals concerned about the quality of care provided by a former employee must acknowledge that when reference information is sought about that former employee, the hospital must decide what risk it will assume. One option is to avoid risk of litigation by refusing to provide meaningful reference information, which creates another kind of risk--potential harm to patients in another facility.
Another option is to express concerns, thereby taking the risk of a lawsuit by the former employee but also reducing the likelihood of that former employee posing a threat to the patients of a subsequent employer. Although these choices may seem stark, it is difficult to perceive a middle ground, just as it is difficult to see a sound basis for adopting the first course of action as standard operating procedure.
In considering this issue, hospitals should be aware that more than half of the states have enacted reference immunity statutes to protect employers from defamation and related lawsuits in a reference-checking situation. Although not identical, and perhaps not perfect, these statutes do heighten the protection provided by the law to employers who give out truthful information about their current or former employees. Where patient care or safety are implicated, is something less ever acceptable?
Finally, some hospitals may seek to avoid this dilemma by passing on reference information with a "wink and a nod"--that is, by so-called off-the-record conversations between professionals who have a personal or professional relationship. The truth, however, is that there is no such thing as an "off the record" conversation. In the event of a dispute, all of the facts will come out, and the clandestine nature of the conversation will only cause it to be viewed with suspicion, particularly if the participants disagree as to what was said.
Paul Snitzer is a labor and employment law partner and Lisa Clark is a healthcare partner in the Philadelphia office of the law firm Duane Morris.
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