There is currently no Georgia statute requiring hospitals to perform background checks on applicants for nurse and other caregiver positions, but case law shows that hospitals may avoid liability for negligent hiring or retention by performing such background checks.

What is negligent hiring and retention?
A negligent hiring or retention claim may be successful where an individual shows that a hospital knew or should have known of an applicant’s or employee’s “tendencies” or propensities to cause harm to a patient or other person. See Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 863 (2004).

How do background checks affect negligent hiring or retention liability?
The basic legal issue in any negligence case is whether the defendant exercised appropriate care under the circumstances. Conducting background checks on employees who will have patient access can demonstrate appropriate care.

In Munroe, a female patient sued the hospital for negligent hiring and retention after a male mental health assistant sedated and raped her. The court found in favor of the hospital because it had conducted a background check on the employee through a private investigation company, ChoicePoint, which failed to reveal any propensity for harming others.

After noting that there was no statutory duty to perform such a check, the Court added that  "a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches."

Ga. at 864, n. 4.  Therefore, hospitals should strongly consider conducting background checks on applicants for all patient care positions. See also Hipp v. Hospital Auth. of City of Marietta, 104 Ga. App. 174 (1961) (finding that negligence claim was actionable where orderly molested patient and hospital did not check orderly’s criminal record, which included “Peeping Tom” convictions and other convictions).

What is a hospital’s duty to monitor behavior of its current employees?
It is likewise important to treat seriously allegations of impropriety by current employees. In Bunn-Penn v. Southern Reg’l Med. Corp., 227 Ga. App. 291 (1997), a male ER technician fondled a female patient who sued the hospital for negligent retention of the technician. Discovery in the lawsuit revealed that the technician was the subject of multiple reports by several colleagues for loitering near the rooms of female patients who were undressed and for assisting female patients with undressing or using the restroom, in violation of hospital procedures calling for same-sex employees to assist with such matters.

By a 4 to 3 margin, the court held that the hospital was not on notice of a propensity for molestation, just a propensity to linger where the technician had no business or to offer assistance that should have been given by female hospital employees. The employee, notably, had consistently received high performance evaluations and commendations (in the absence of which the court may have been less sympathetic). The three dissenting justices believed that the complaints about loitering and improper assistance to female patients were sufficient to put the hospital on notice of a problem, which may have prevented the later fondling incident. Although no liability was found, the closely divided decision in this case demonstrates the importance of investigating and taking appropriate action based on reports of impropriety by employees to avoid claims of negligent retention.
 

What else should be considered as part of a background check?
A background check should not just focus on a potential employee’s criminal record. An employer should investigate the applicant’s work history and experience, any gaps in the person’s work history, and the person’s education background.

For example, if an applicant denies that he/she was ever convicted of a felony or misdemeanor, but has a significant gap in his/her work history, the employer should investigate the gap. An applicant’s gap in work history might be for a legitimate reason, but it also might indicate the applicant spent some time in jail. The hospital should also train the individuals who interview applicants to conduct uniform interviews and know the right, lawful questions to ask to discover more information about the applicant.

What procedural guidelines apply to background checks?
Practically, it would be difficult to perform background checks without the assistance of outside agencies. If the hospital uses an outside agency to perform its background checks, then the hospital must comply with the requirements of the federal Fair Credit Reporting Act (“FCRA”).

Pursuant to the FCRA, an employer seeking information regarding an applicant’s reputation or character for use in making employment-related decisions must, among other things, disclose in writing its intent to obtain a report about the applicant; receive the applicant’s written authorization to obtain the report prior to conducting any investigation; and provide the applicant with an unedited copy of the report, along with a summary of FCRA rights before making an employment decision based on the report. Moreover, if the hospital takes adverse employment action based on information in a report, it must provide the following: an oral, written, or electronic notice of the adverse action to the applicant; the name, address, and telephone number of the consumer reporting agency that furnished the report; and a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the consumer specific reasons why the adverse action was taken.

Contact Information:
Patrick L. Lail
Elarbee, Thompson, Sapp & Wilson, LLP
Atlanta, Georgia
http://www.elarbeethompson.com  
lail@etsw.com

(404) 582-8428