Negligent hiring and negligent referral

Article by KURT BLUMENAU OF THE MORNING CALl

The following article highlights the importance conducting thorough pre-employment background checks and employment verifications. When there is a greater potential of harm to the public, or employees, the scope of the pre-employment investigation should be expanded for positions dealing with a vulnerable population.

William Davis, a Registered Nurse, was found guilty of capital murder on October 19, 2021 after fatally injecting four patients with air at a Tyler, TX facility. The facts in this case have not developed any failure on the part of Davis’ employer to conduct a thorough background check. While the employer’s due diligence in this case did not prevent the hiring of Mr. Davis, it can mitigate a claim of negligent hiring, a term describing an entity that fails to act reasonably. But, the prospective employer must conduct the employment verification to obtain this protection.

As an employer, if a former employee exhibited dangerous tendencies, Human Resources should note that there may be a duty to inform a potential employer of this history. This could be the most recent case of the failure of a former employer to meet their obligation to inform prospective employers of potentially dangerous employees and highlights the value of implementing a thorough screening process that includes verifications of previous employment. We will cover other cases in future articles.

Negligent referral is the failure of a former employer to disclose information about a former employee that leads to the injury of an innocent third party.  A health care facility that previously employed Davis released the following, “the health care system believes they have identified any patients who may have experienced any anomalies under Davis’ care”. Litigation indicates that a former employer cannot hide behind a no comment verification policy and has a duty to inform.

Law firms representing the families of the victims have filed lawsuits against CHRISTUS Mother Frances Hospital and the Louis and Peaches Owen Heart Hospital. CHRISTUS Mother Frances Hospital – Tyler, issued the following statement in regards to the legal action. “Mr. Davis was a credentialed nurse who passed all background checks when he was hired. There was nothing about his employment history at CHRISTUS or at previous employers that would have led us to conclude that Mr. Davis was likely to commit a crime”.

However, an employer must conduct a thorough background check to make this claim. Does your vendor ask prior employers the reason why the candidate left, are they eligible to return, and if not, why are they not eligible? The former employer may not answer these questions, but by asking, the vendor and prospective employer are practicing due diligence.

The story of Charles Cullen, who told investigators he killed up to 40 patients while moving from one nursing job to another, shows what can happen when hiring managers don’t share information.

The problem goes well beyond the health care field, though. Businesses in all industries share hospitals’ reticence to talk about former workers.

It has become a common human resources policy not to comment on past employees’ work records. Companies fear the worker will challenge as untrue a negative reference in court. Those suits can be costly, even if the company wins.

There are ways to get around the silence from human resources, such as calling former supervisors for “informal reference” interviews. Such backdoor interviews are common, but require good connections and trustworthy sources — and can also be grounds for legal challenge.

In Cullen’s case, his former employers’ refusal to share information helped him jump from hospital to hospital in the Lehigh Valley and New Jersey. The facilities that hired Cullen said they did not know of suspicious deaths and investigations in his past.

The basic facts- name, start date and end date — are what Sacred Heart Hospital at Allentown gave out last year, when a New Jersey hospital called for a reference on Cullen. And that’s what the Allentown hospital got when it called Cullen’s previous employer.

Article by KURT BLUMENAU OF THE MORNING CALl

TABB INC. interviewed two recruiters that contacted Cullen’s prior employers prior to onboarding him as an employee. All indications point to a conclusion that a thorough background investigation was conducted by Cullen’s potential ­­employers. None of the employers interviewed by the recruiters provided information about the known behavioral issues and dangerous patient care concerns to the prospective employers.

The failure that resulted in the deaths of patients is pointing to the former employers who did not provide relevant information when contacted by Cullen’s future employers. It is important for employers to have a policy in place to ask the questions of former employers to avoid negligent hiring. An employer may provide information regarding a dangerous employee to avoid a potentially dangerous environment at a subsequent employment. Or, an employer may refuse to divulge this information. The process of asking questions of former employers places the onus on the former employer should a dangerous situation with the employee occur.

To protect our clients, as part of our standard employment verification process, TABB INC. conducts verification of employment through human resources and through a supervisor. In addition to verification of states and position, questions of both sources include reason for leaving, eligibility to return in addition to work for performance. As discussed in a series of our articles, employers will not always provide all of this information, however by asking the question, our clients can demonstrate due diligence.

We have discussed due diligence for the healthcare industry. If your company is not involved in health care, why do I need to worry about due diligence when hiring?

Workplace violence and casualties are becoming more frequent. Due diligence during the hiring process applies to the general business world, as the case of Paul Calden shows. Calden shot five former co-workers, killing three, before killing himself in 1993 at a Florida office of Fireman’s Fund Insurance Co.

The company had hired Calden in part because of a brief reference letter from his previous employer, insurance giant Allstate. The letter reportedly said Calden was let go as part of a corporate downsizing. He actually was fired for bringing a gun to work and threatening co-workers.

The victims’ families later sued Allstate, claiming it knew Calden was dangerous but did not tell his new company. The case was settled in 1995.

Twenty years ago, our office received a late afternoon telephone call from a client who stated that a former employee, John Taylor, who was dismissed with cause, returned to the fast food restaurant where he was employed and murdered five employees and severely wounded two others during a robbery. Our office previously conducted a background investigation on Taylor when he first applied to our client many years before this incident occurred. At that time, our office interviewed one of Taylor’s previous employers in the fast food industry. This employer verified Taylor’s dates and position provided a positive evaluation of his work performance. This employer did not inform our office at the time that Taylor had actually robbed this fast food facility where he was employed and was terminated prior to applying with our client. Based on this information, Taylor was hired and then later fired by our client due to, theft.

Taylor returned many years later and applied once again at our client, however on this occasion, a background screen was not ordered on this individual. Had a background investigation been conducted, a failed employment history and a number of serious criminal records including a violent history involving fast food restaurants robberies would have been developed.

A Civil Court judge in Queens dismissed a $300 million lawsuit filed on behalf of the families of workers who died in the massacre on the grounds that the company failed to provide security at its store and negligent hiring of the former employee with  violent past. The case was dismissed but not due to the lack of merit in the case. Civil Court Judge Martin Schulman dismisses the suit on the grounds that the statute of limitation had expired for a wrongful death suit.

To avoid negligent hiring, it is important for employers to have a policy in place to conduct thorough criminal record checks, verify employment and ask questions of former employers including reason for leaving, eligibility to return, and if not eligible to return, the reason why they are ineligible.

Charles Cullen was convicted in 2005 of killing 29 patients (and is suspected of more than forty deaths) in New Jersey and Pennsylvania.

Mr. Cullen is the poster boy of a failed background investigation process. Over a span of 16 years, Cullen worked in nine hospitals and a nursing home and was dismissed or resigned under a veil of suspicious activities. Ultimately, the medical system was responsible for its inability to stop Cullen from moving from hospital to hospital in becoming one of the most prolific serial killers in US history.

This is another case of the failure of former employers to meet their obligation to inform prospective employers of potentially dangerous employees and highlights the value of conducting thorough screening process that includes verifications of previous employment.

In response, NJ passed the Health Care Professional Responsibility and Reporting Enhancement Act (Cullen Law) in 2005 that “requires health care facilities to notify the state Division of Consumer Affairs with any information regarding impairment, incompetence or negligence by a health care worker that could endanger patients.” The law also requires health care facilities to divulge information of this nature to prospective employers submit inquiries regarding former and current employees.