Violence against Homecare Field Staff, Part 2

Dear friends,

The following article describes providers' duty of reasonable care to
employees and ways to protect them from harm. Feel free to share this
information. If you decide to use this material, please include our
copyright designation that is shown at the end of the article and send us a
copy of any publication in which the material appears.

Please do not hesitate to contact us with comments, questions, or requests
for additional information.


Elizabeth E. Hogue, Esq.

Office: (877) 871-4062

Fax: (877) 871-9739

Twitter: @HogueHomecare

Violence against Homecare Field Staff, Part 2

Homecare field staff members who provide services on behalf of private duty
agencies, hospices, Medicare-certified home health agencies and home medical
equipment (HME) companies are extremely vulnerable. Contributing to their
vulnerability is the fact that they work alone on territory that may be
unfamiliar and over which they have little control. Staff members certainly
need as much protection as possible. In Part one of this series, exposure
to workplace violence was reviewed from the point of view of the
Occupational Safety and Health Administration (OSHA). The purpose of this
article is to explore the liability of home care providers of all types for
negligence when employees are injured as a result of violence.

Providers owe their employees a duty of reasonable care. That is, they are
responsible to take reasonable precautions to protect their employees from
harm. This obligation may be far easier to talk about than to fulfill due
to increasingly threatening environments for home care personnel. A key
question regarding this obligation is: what is reasonable?

Reasonableness is determined by what other providers are doing across the
country. In other words, whether providers are taking reasonable
precautions to protect workers will be judged by comparison to what others
throughout the country would have done under the same or similar
circumstances. This definition of reasonableness poses particular
difficulty for home care providers. There is a lack of data or even
anecdotal information about how other companies are dealing with a number of
key issues in home care, including protecting workers from harm.

Failure of agencies to fulfill their obligation of reasonable care can be in
the form of: (1) acts or errors, and (2) omissions. In other words,
providers must show that nothing happened to harm workers because of
something that the providers did or should have done. Providers will be
found to have caused injury to employees if the damage to employees would
not have occurred "but for" an act or omission by employers. Courts
generally require proof that employees were injured physically, as opposed
to only emotionally, in order to compensate them for their injuries.

From a practical point of view, it is important to ask what providers can do
to protect their employees from harm. The most important answer to this
question is that managers must listen and take action when staff members
complain about safety hazards.

One of the strengths of the home care industry has always been that staff
members are willing to go beyond the extra mile to care for patients. The
perception of many who know the industry well is that workers tend to put up
with safety hazards that others would not hesitate to avoid. It becomes
essential, therefore, for supervisors to listen carefully to staff members
who complain about safety hazards. Assessments by most staff members that
they regard situations as unsafe are usually valid since their natural
inclination is to continue to provide services to patients in unsafe

It is also extremely important for managers to take action in response to
complaints by personnel. There is an old legal adage that "every dog is
entitled to one bite." This means that, as soon as the dog has bitten one
person, those responsible for the animal are on notice that the dog is
dangerous. They must then take reasonable precautions to prevent further
injury or damage. Consequently, once employees register even a single
complaint regarding dangers associated with the care of particular patients,
employers are likely on notice that further care may involve harm to
workers. In view of this "first bite," so to speak, providers must take
appropriate action or face possible liability for injuries to their
personnel. What kinds of actions are appropriate?

The use of so-called "escorts;" including armed, off-duty police officers;
may be appropriate. Some home care personnel, however, object to use of
escorts. The basis for their concern may be that the presence of escorts
interferes with their relationships with patients. They point out that
there is an essential inconsistency between the caring and nurturing
relationships they wish to foster with patients and their families and the
use of escorts. Some workers also express concern about their reputations
in the community when escorts are used, especially if they live in the
community in which they make home care visits.

Providers may, therefore, decide to establish and implement a policy that
staff may not reject escorts when management deems that their use is
appropriate. Refusal of escorts should be defined as insubordination in
such policies and procedures, and appropriate disciplinary action, including
termination of employment, should be taken in response to this type of

Termination of services to patients is also an appropriate response to
concerns regarding the safety of home care staff members.

Home care personnel knock on the doors of thousands of patients each day,
unaware of what may be inside their homes. They regularly encounter
unfamiliar terrain and unknown risks. These risks are likely to become even
greater as the use of home care services continues to expand. Managers and
field staff must be prepared to deal with the constant potential for
compromised safety.

CCopyright, 2016. Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the
advance written permission of the author.
Sign In or Register to comment.