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Patient Beds and Casting Couches: Hospitals Take Lessons From Hollywood

Bloomberg Law

Mary Anne Pazanowski

October 25, 2017

Stories of Hollywood mogul Harvey Weinstein’s alleged decades-long bad behavior have rocked other industries, as hardly a day goes by without a high profile resignation or firing linked to sexual harassment allegations.

The health-care industry, so far, hasn’t attracted that kind of attention, but there’s little doubt sexual harassment and other abusive behavior occur within the nation’s hospitals. That the problem may not be as egregious as it is in the movie industry is due partially to different employee expectations and, in no small part, to the fact that most health-care facilities have solid harassment and abusive behavior policies, attorneys who counsel health-care providers told Bloomberg Law.

Health-care industry employers, however, shouldn’t become complacent. Over 12 million people in the U.S. work in the field, according to a 2015 Kaiser Family Foundation report. And the stakes are high. A jury in 2012 awarded nearly $168 million to a physician assistant who alleged she was sexually harassed at the California hospitals where she worked. Add in the costs of bad publicity, litigation, and poor employee morale, and a health-care employer could be on the hook for considerably more in damages and prestige.

Solid Policies “Without appropriate controls, there can be sexual harassment in most any workplace,” Kathleen Dudley Helms, the managing shareholder of Ogletree Deakins Nash Smoak & Stewart PC’s Columbia, S.C., office, told Bloomberg Law. She believes “sexual harassment is about power.” Because men still typically hold more powerful positions than women, gender-based harassment can and does occur.

The problem in health care, however, isn’t limited to sexual harassment, according to Mark Kadzielski, a partner with Baker Hostetler in Los Angeles. Conditions have improved greatly, and the stereotype of a doctor chasing a nurse around a call desk is no longer true. Still, disparities in power between various hospital employees can give rise to disruptive behavior that’s harmful to patients, as well as other employees, he said Kadzielski is a Bloomberg Law advisory board member.

Disruptive and bullying behavior, both in terms of sexual harassment and otherwise, is a serious issue for all hospitals, Anne Murphy, a Bloomberg Law advisory board member and partner at Hinckley Allen in Boston, agreed. Teaching hospitals and academic medical centers, where students and teachers work alongside each other, should be especially attuned to the problem, she said.

Addressing complaints about these types of abuses is “always a balancing act,” Kadzielski said

Anti-Harassment Culture Fighting workplace sexual harassment begins long before the first complaint is filed. Every workplace should have a culture and infrastructure that addresses disruptive behavior, Murphy said. Health-care facilities have an advantage over other workplaces because the teamwork required to provide effective health care, along with the industry’s overarching benevolent mission, highlight the need for a safe and cooperative environment.

Creating this environment starts at the top, Murphy said. Programs to identify and avoid sexual harassment claims begin in the boardroom and are reinforced in the executive suite; implemented through a strong partnership among the legal, compliance, and human resources teams; and embraced by the clinical leadership.

David Jarrard, president and CEO of Jarrard, Phillips, Cate & Hancock in Brentwood, Tenn., emphasized that health-care facilities should be prepared in advance. Jarrard suggested facilities develop an action plan, just as they would develop plans to address other disasters, such as a weather emergency or violent event. Once publicity about an alleged incident breaks, facilities must be prepared to deal with it, Jarrard, who provides strategic communications advice for hospitals and health-care companies, told Bloomberg Law.

As part of their preparations, hospital leaders must clarify that the sexual harassment and abuse policies will be applied equally to everyone, with no exceptions for high-volume physicians or clinicians who are leaders in their fields. Helms said it “is tough if the situation involves improper conduct by a high income producing physician, but it can be addressed.” The hospital “will be in jeopardy” if it doesn’t act to stop the behavior, she said.

Health-care providers should “stare harassment in the eye” and clarify the behavior that is expected of everyone, Murphy said.

Red Flags and Gossip A sexual harassment claim may be met with surprise, but often that isn’t the case. There sometimes are “red flags” that should alert hospital leaders that action is required before a problem reaches that point. Also, employees talk.

Kadzielski told Bloomberg Law that everyone in a facility should be attuned to recognize red flags regarding physician behavior, and how they may presage other more serious issues. He pointed to the example of Dr. Carmen Puliafito, an eye surgeon and former dean of the Keck School of Medicine at the University of Southern California.

A July Los Angeles Times series of articles reported that USC colleagues had heard or suspected that Puliafito had a drinking problem, but the newspaper’s investigation turned up sordid details about Puliafito’s alleged exploits as a major drug user who partied on and off campus with other drug users and prostitutes. Puliafito’s workplace conduct might have led people to suspect his outside activities—and take appropriate action—long before a major U.S. newspaper broke the story, Kadzielski said.

Gossip among employees also is an early indication a health-care facility has a problem on its hands. Jarrard said employers should “keep their ears to the ground.”

A hospital’s senior leadership should be visible and engaged with its employees and patients on a daily basis, Jarrard said. Hospital leaders might hear about suspect behavior simply by getting out of their offices and walking the hospital’s hallways, he said. Many of Harvey Weinstein’s accusers have said his behavior was an open secret, and that actresses would whisper among themselves about him. Being around when lab technicians are discussing a supervisor’s rude behavior similarly would give leaders a heads up about what is happening behind the scenes in the hospital.

Another tactic to get ahead of a problem is to actively monitor social media for mentions of their facilities, Jarrard said. Accusations of improper behavior are most likely to appear there long before they emerge anywhere else. Hospital leaders who use these strategies may be able to intervene earlier to prevent situations from deteriorating.

Part of the art of leadership is being in tune with one’s environment, Jarrard said. A hospital leader should be able to recognize and manage a risky situation and to distinguish one from a circumstance that doesn’t present a larger problem.

This also could be a time when peer intervention becomes effective. The clinical leadership must embrace the message that sexual harassment or other abusive behavior is inappropriate and “become the champions of respectful and appropriate behavior,” Murphy said. The clinical leadership might adopt an escalating response—a leader could have a “coffee cup conversation” to discuss a potential problem, or a situation may be serious enough to require filing a formal complaint.

Safe Space to Report Once an episode has occurred, employees should feel safe about reporting it, Murphy said. Hospital governing board members should periodically examine their facility’s reporting policies and determine whether they encourage reporting in a safe and effective manner, she said. Reporting policies should offer a measure of confidentiality and an assurance of nonretaliation, she added.

Helms said hospitals generally have hot lines or other well-established avenues for employees to report issues. Employees and their supervisors also must be trained in how to respond to alleged harassment or abuse, Helms added. Supervisors must understand that they can’t tell complaining employees to “just ignore” the person he or she believes is harassing them, she said. The situation instead should be referred to the human resources department, where most employees “are sophisticated enough to determine if the conduct rises to the level of harassment and to determine the proper level of discipline,” Helms said.

Murphy said this is where teamwork between the legal, compliance, and human resources team becomes especially valuable. These professionals each have their own skill sets, and each team will be able to make important contributions to the process of receiving, investigating, and addressing complaints, she said.

Motivation to Act One of the worst things an employer can do is ignore a complaint. “The difference between the average hospital and the Weinstein situation” is that the Weinstein brothers appear to have been all powerful, Helms said. “If you wanted something, you got it from them.” If their company had a mechanism for addressing sexual harassment claims, it clearly wasn’t effective.

“Hospitals have motivation to be responsive to employee complaints of harassment,” Helms said. It impacts employee morale, and federal and state laws offer some protections to employers that conduct prompt investigations, she said.

Unaddressed disruptive behavior also can impact patient care, Kadzielski said. A female nurse allegedly being bullied by a doctor may refuse to work with him or request a transfer to another shift or unit, for example. Patients could be neglected or not receive the proper care because the doctor and nurse aren’t cooperating. “Quality health care requires teamwork,” Kadzielski said. If the care team isn’t getting along, the patient may not be receiving the care he or she deserves.

An investigation should follow an accusation. A facility’s leaders need to find out what they know and what they don’t know, Jarrard said. If the accusation shows signs of gaining traction, the leaders must reach out to the accuser and “lean into the conversation,” he said.

The “key is speed,” Jarrard said. The faster an institution begins its investigation and takes action, the better. People inside and outside the facility will be watching, and while a facility can’t be totally transparent given the usual sensitivity of the situation, they will expect the facility to do something, he said.

Publicly, hospital leaders should be as open as possible, explaining the general policies and how they plan to address a situation, Jarrard said. The public wants to see the facility’s “values in action.” At the same time, leaders need to explain that they can’t share details while an investigation is underway.

Jarrard suggested putting the incident in perspective by emphasizing the facility’s broader reputation. People will be focused almost entirely on an adverse event that occurred at the hospital. It’s important to remind them said.

Finally, hospital leaders must take action. Incidents of sexual harassment or abuse can’t be swept under the rug or ignored.

Sexual harassment is a common reality today, and complaints in hospitals are inevitable. Solid anti-harassment and abuse policies, along with preparation and a commitment to fight abuse at every employee level can help health-care industry employers avoid the type of publicity wreaking havoc in other employment sectors.