THE RISK MANAGEMENT SIDE OF STAFF TRAINING

Training and staff development endeavors are routine activities in most hospitals and yet very little is understood about the potential liabilities resulting from such functions. This article provides an overview of the most common types of situations that may lead to litigation. Topics include: adventure-based training, selecting and accommodating trainees, and negligence due to failure to train to standards.

One of the more recent creative training approaches for the learning organization involves managers and staff in what is termed "new-age" or outdoor experimental training. Examples include wilderness treks, off-shore sailing jaunts, or other forms of individual or group-survival experiences. These techniques may also be employed in traditional classroom settings. Such training approaches have potentially serious legal implications, such as violations of religious freedom and privacy. For example, requiring a weekend training session for all senior managers may interfere with their routine religious activities on Saturdays or Sundays. Requiring participants to reveal highly private values, beliefs, and experiences may infringe on their constitutionally protected privacy rights. Intense physical activity coupled with intense group facilitation may result in emotional distress for some participants. A program that forces physical activity and discussion of personal information could be deemed "intentional infliction" if emotional distress were to occur. To lessen the liability risks of "new age" training, consider incorporating the following features into your nontraditional training programs:

Provide nonpunishing alternatives for those who do not wish to participate. Consider alternative development approaches that result in the same learning and performance outcome.

Do not punish those who do not volunteer for such programs when their performance appraisals are due or when promotions are being considered.

EEOC Regulations

Keep in mind the regulations of the Equal Employment Opportunity Commission (EEOC). These regulations govern the hiring, promotion, and discharge of employees and also cover training situations. The EEOC's Uniform Guidelines on Employee Selection Procedures "apply to tests and other selection procedures which are used as a basis for any employment decision....hiring, promotion, demotion....Other selection decisions, such as selection for training, or transfer, may be considered employment decisions if they lead to any of the decisions listed above. The following situations may be covered by these EEOC regulations:

Requiring training prior to job entry

Selecting employees to attend internal and external programs

Using measures in training as measures of job performance and retention

Making job assignments based on performance in the training program

The employer bears the burden of proof to demonstrate that any given requirement for employment is related to job performance. Although there has been some erosion of this EEOC principle, the federal courts still closely evaluate any job requirements for job relatedness. A potential legal problem occurs whenever a measure used for a significant employment decision, such as hiring or selection into a training program, is discriminatory. The federal courts have concluded that if a requirement or procedure has an "adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex or ethic groups it will be considered to be discriminatory....unless the requirement or procedure has been validated."

Disability Act

The most recent federal legislation to affect employers is the Americans With Disabilities Act of 1990. This Act prohibits discrimination in employment, public services, transportation, public accommodations, and telecommunications services against persons with disabilities. All aspects of employment are covered, including the application and selection process, on-the-job training, advancement in wages, benefits, and employer-sponsored social activities. Employers must provide employees with disabilities with reasonable accommodations to enable them to perform the essential functions of the job. Examples include modifying work schedules, reassigning job duties, removing architectural barriers, and offering auxiliary aids, interpreters, etc.

Relevant to staff training, employers should make reasonable accommodations for the learner with a disability. Most accommodations are relatively inexpensive. Examples, include magnifying glasses to aid in reading, taped text for those who are visually impaired, and instructional material with oversized lettering.

Negligence

Another liability concern relates to negligent training. Negligence is generally defined as conduct that falls below the standard of care that is necessary to protect others against exposure to an unreasonable risk of foreseeable injury. Most negligence falls in the unintentional category, such as an intraoperative injury to a patient. Deliberate infliction of emotional distress is an example of intentional negligence. Injuries or damages resulting from improper training could be a source of litigation. For example, in Stacy v. Truman Medical Center (1992), the Center had a legal duty to instruct its nurses in the correct performance of their work. Although the Center had a policy on fire evacuation procedures, the nurse in this instance was not trained on the policy. The nurse's breach of a duty was failing to remove the patient from a room on fire. The proximate causal link between the death of the patient and the legal duty to adequately train the nurse on fire evacuation policy was argued successfully before a trial court.

Public-sector trainers have an additional source of litigation for which they must be concerned. Negligent acts in publicly operated utilities, hospitals, and social services may also be subject to civil rights laws. What would ordinarily be a negligence action in a state court may become a civil rights case in federal district court. The civil rights claim arises when a law or a policy is not adhered to by the governmental entity and a death or injury results. For example, if admitting staff are expected to triage emergency patients but do not receive adequate training to make these judgements, a question of negligence could be raised if a patient is harmed by inappropriate triaging. The hospital could be held in liable for violating the civil rights of the harmed patient. For instance, hearing a case similar to this healthcare example the Supreme Court held that:

The inadequacy of the training may serve as the basis for liability only where the failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the defendant came in contact.

The focus must be on whether the training program was adequate to the task the particular employee must perform.

The identified deficiency in the training program must be closely related to the ultimate injury.

Protecting yourself from the potential liabilities of staff training can be easy if a few simple steps are taken to reduce risk. Remember, to be ignorant of any law or significant court decision that affects one's job is to invite trouble. Work with your risk management department to develop comprehensive operational policies and procedures for employee training that minimize your liability exposure.

To Learn More: Patrice L. Spath is available for inhouse presentations on healthcare quality management subjects. She can be reached (503) 357-9185; email: Patrice@brownspath.com Address comments or correspondence to: Brown-Spath & Associates, PO Box 721, Forest Grove, OR 97116.

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