Policies, investigations can help mitigate sexual abuse claimsPosted On: Mar. 13, 2019 5:52 PM CST
(Correction: the below article has been corrected to reflect the status of state reviver statutes and to correctly attribute a statement on termination policies.)
CHICAGO — Maintaining good policies, investigating claims and knowing your insurance coverage can help health care organizations reduce their exposure in the event of a claim of sexual abuse.
In the past few years, several high-profile cases detailing sexual abuse by physicians or at medical centers have been reported, showing that “no entity is immune to these types of claims,” said Caroline Berdzik, partner in the Princeton, New Jersey, office of law firm Goldberg Segalla LLP, at the Professional Liability Underwriting Society's Healthcare & Medical Professional Liability Symposium on Wednesday in a session addressing sexual abuse in health care.
While these types of sexual abuse incidents aren’t new, the “tremendous” severity of the claims, outrage by the public and the increasing push to criminalize this conduct is leading to more complaints of abuse and legislatures to pass bills extending the statute of limitations for when these claims can be filed, said Ms. Berdzik.
The settings for these abuse cases vary significantly, from medical facilities serving children, housing for the developmentally disabled or elderly, and home health care, said Daniel Mogelnicki, head of specialty programs at NAS Insurance Services Inc., based in Encino, California. However, an organization financial burden relating to these sexual abuse claims depends largely on record-keeping, documentation and the insurance carried by the health care company, he said.
It can also depend on the state, noted Bryan Elie, vice president of underwriting for United Educators, a Reciprocal Risk Retention Group Inc. based in Bethesda, Maryland. States including Maryland, New York and Vermont have proposed statutes, which essentially allows victims of sexual abuse to bring claims based on abuse that occurred years ago.
If an abuse situation is discovered, Michelle Foster Earle, CEO and president of Austin, Texas-based OmniSure Consulting Group, said an organization needs to use it as an opportunity to prevent the recurrence of this type of abuse by addressing the system that allowed it to happen.
Companies may terminate multiple employees associated with an abuse incident, but this presents a missed opportunity for employers to mitigate future incidents, said Ms. Foster Earle.
“If everybody is terminated and afraid to talk … no one is going to learn from this mistake,” she said. If they were reckless … if it’s intentional harm, it makes sense to terminate them. But if it was an unintentional error or mistake or maybe they missed a red flag about some nurse acting inappropriately, you don’t want to start firing those people. There’s great information in studying these scenarios … learning from the red flags.”
Another action that should be taken after a report of sexual abuse is not a call to the attorney, but a review of the organization’s general liability policy to see if there are exclusions to abuse and molestation or a sublimit for sexual molestation, said Mr. Mogelnicki.
“You need to read policies and understand the scope of coverage ahead of time — there may be other provisions in the policy,” Mr. Elie said, noting that some policies require immediate reporting of incidents involving catastrophic bodily injury to the insurer as a condition of coverage. “If leaders become aware of an incident and don’t take the right action, or don’t appropriately respond, investigate and address it, there are limitations in what (an insurer can) do.”
Ms. Foster Earle noted that organizations can often be confused by when an incident must be reported. “If it’s something that’s reportable to an agency, you need to report it to the carrier,” she said. “One thing that they don’t know sometimes is if it’s an allegation, it has to be reported. They need to report before an investigation.”
On the preventive end, Ms. Foster Earle said health care organizations need to ensure they’re conducting background checks on all employees and volunteers, and check the national sex offender registry for the names of those individuals, as well as patients in residential stay facilities as a precautionary measure.
Mr. Elie said organizations also need to make sure policies and procedures to prevent abuse and maintain boundaries between providers and patients is evenly applied — that so-called “superstars” in the medical practice don’t have a different set of rules — and that there is a centralized place that stores complaints by individual, not chronologically, to enable an organization to see patterns of potential abuse.
Exit interviews can be another good way for organizations to obtain information on potential abuse issues, said Ms. Foster Earle. Disgruntled employees are often the first ones plaintiffs attorneys will call as their “expert” witnesses, and organizations can often learn about any quality issues that need to be addressed, she said.
Listening to those employees performing the work each day may also alert the organization to risk issues unknown to management, said Ms. Berdzik.
“Get a ground-level idea of what’s going on from the people who are actually doing the work … is very insightful,” she said. “Transparency is key.”