Negligent Hiring and Negligent Referral

I would like to take this opportunity to highlight the importance of 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. The employer must conduct the employment verification to obtain this protection. The circumstances are similar to the case of Charles Cullen, a nurse who killed more than forty patients at numerous hospitals.

Negligent hiring and negligent referral also applies to occupations other than in the health care field. The increasing number of workplace violence and shootings highlights the need for a proper background investigation process and employers to develop a process with legal consultation to inform potential employers of a dangerous employee. Many of the workplace acts of violence could have been anticipated based on behavior exhibited at prior employers.

If a former employee exhibited dangerous tendencies, Human Resources should determine after legal consultation if there may be a duty to inform a potential employer of this history. The Davis case is the most recent in a long line of cases where former employers failed to meet their obligation to inform prospective employers of potentially dangerous employees. This case illustrates the value of conducting 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 to a prospective employer, which 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 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. TABB INC. asks former employers and supervisors to comment on 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.