N EWSLETTER. Volume Eight - Number One January The Radiology Technician as a Borrowed Servant

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1 N EWSLETTER Volume Eight - Number One January 2012 The Radiology Technician as a Borrowed Servant Many healthcare organizations rely upon personnel from staffing agencies. These individuals fulfill important roles in both administrative and clinical aspects of patient care. Sometimes a medical group will assign a staff member to fulfill a specific clinical function in a healthcare organization. Central to such arrangements is a written agreement that outlines the terms and conditions as well as the role and responsibilities of the respective parties to the contract. Sometimes situations can occur in which the parties engage in practices that depart from the contract. The person assigned by the staffing agency is asked to take on more responsibilities than those addressed in the contract. In other instances, the terms of the agreement are open to varying interpretation whether or not the agency or group supplying the worker is vicariously liable for the errors and omissions of the individual. The legal reasoning for such accountability can be found in the law of tort and the concept of respondeat superior, or that the master is responsible for the errors and omissions of the servant. In other situations the assigned individual may be considered a borrowed servant. This means that the healthcare organization exerts such supervision and control over the actions of the individual that it is the borrowing entity that takes on responsibility for the errors and omissions of the worker. When there is proof that the situation meets the criteria for a borrowed servant, the staffing agency or medical group may not be vicariously liable for the actions of the worker. A Rhode Island Superior Court decision 1 highlights the intricacy of the borrowed servant concept. It also illustrates the importance of precision in contracts between staffing agencies or medical groups and healthcare organizations. PAGE 1

2 The Rhode Island Case. On June 6, 2006, J.S.A. presented at the emergency department of RWMC with a complaint of chest pain. The emergency department physician who examined the plaintiff ordered a CT scan with contrast dye of the manʼs chest. A person described as a scan technician 2 injected the contrast dye. The patient claimed that he immediately had severe pain, burning and swelling both in his hand and arm. 3 The individual who administered the contrast dye was a traveling scan technician who was employed by a radiology group. Pursuant to a Client Agreement, she was on loan to RWMC. 4 A lawsuit was filed in March 2007 against RWMC for negligence. Six months later, RWMC filed a third party complaint against the radiology group. RWMC alleged that the traveling scan technician was acting as the servant of the radiology group when she injected the contrast dye. RWMC asserted that the radiology group was vicariously liable for the negligence of the scan tech under the theory of respondeat superior. For good measure in February 2008 the plaintiff filed an amended complaint in which he added a second count of negligence against the radiology group. 5 In June 2010, the radiology group filed a motion for summary judgment. The radiology group argued that since the traveling scan technician was the borrowed servant of RWMC, it could not be liable under the doctrine of respondeat superior. 6 The trial judge analyzed carefully pertinent sections of the Client Agreement between the radiology group and RWMC. The judge had to determine whether it was clear as a matter of law 7 that the healthcare facility had taken over control of the scan technician such that the radiology group could not be held accountable under the borrowed servant doctrine. The court noted a key provision entitled DIRECTION AND SUPERVISION that stated in part: [a]ll HC Professionals [i.e., the traveling scan technician] accepted by Client [RWMC] shall, when rendering services, be under the direction and supervision of Client [RWMC] and not [the Radiology Group]." 8 PAGE 2

3 The court examined another relevant provision in the Client Agreement. The section entitled, QUALITY ASSURANCE PROGRAM stated in part that the radiology group would provide RWMC with a designated Staffing Supervisor as the primary contact for each Assignment. This individual will be responsible for regular contact and communication with the HC Professional assigned [the travel scan technician], including the management of any complaints or concerns, and overall coordination of the services of the HC Professional assigned." 9 Looking at the Client Agreement the trial judge said that there was a very limited material issue of fact 10 whether the scan technician was the borrowed servant of the healthcare facility. The court denied the motion for summary judgment without prejudice and encouraged the parties to complete additional discovery on this limited issue. 11 The court was concerned that the radiology group had maintained a role as what it termed a signalman 12 vis-à-vis the temporary worker. For the court the focus became the role of the supervisors at the radiology group. 13 In January 2011, the radiology group filed a renewed motion for summary judgment along with an affidavit from its general counsel, N.N. In the affidavit the general counsel made it clear that the radiology group did not exercise control or supervision over those health care professionals when they were completing services for a client facility. RWMC objected to the renewed motion. 14 Reviewing the evidence and drawing all reasonable inferences in a light favorable to the non-moving litigation the legal standard on motions for summary judgment the court relied on legal precedent set in a 1911 decision from the Rhode Island Supreme Court. 15 In determining whether or not the individual was acting as a borrowed servant, the Rhode Island Supreme Court wrote: [t]he test in all these cases is: Who conducts and supervises the particular work, the doing of which, or the careless and negligent doing of which, causes the injury? 16 RWMC argued that the traveling scan technician exercised her own judgment while working at the healthcare facility. It characterized the role of the healthcare PAGE 3

4 facility as just providing direction to the scan technician in order to receive the benefit of the Client Agreement. 17 The court rejected the healthcare facilityʼs argument. It looked to evidence regarding the designated staffing supervisors degree of control over the manner and means 18 of the scan technicianʼs work under the Client Agreement. For this purpose it referenced the affidavit from the general counsel for the radiology group regarding the job responsibilities of a staffing supervisor: a) to act as a contact person and to field any complaints or concerns that the Client may have with respect to an HC Professional or a particular assignment; b) to act as a contact person for the HC Professional with respect to any concerns or complaints with respect to the assignment; c) to act as a Customer Service Representative and an Account Manager; d) to complete a performance review of the HC Professional based upon client feedback,...; e) to perform other services for HC Professionals, such as secure local housing for assignments. 19 RWMC countered with deposition testimony from the radiology groupʼs manager of customer relations. He said that the designated staffing supervisors completed what he termed status checks approximately every 10 days to determine if the lent employees were arriving on time, adhering to hospital policies, providing good patient care, and exuding a pleasant working demeanor. 20 The court noted that the activities of the designated staffing supervisor were consistent with customer service and client feedback. However, this activity was not the same as a staffing supervisor possessing the right to control the manner of performance of the lent employeesʼ job duties while on assignments or that they actually conducted and supervised the work itself. 21 Based on the affidavit, the court determined that the designated staffing supervisors did not and could not direct the way in which its lent employees completed clinical care to patients at RWMC. Therefore, it granted the renewed motion for summary judgment in favor of the radiology group. 22 PAGE 4

5 Observations on the Rhode Island Decision. In the courtʼs opinion it made an important observation: The law is clear that the primary source of pertinent evidence in borrowed servant cases is the contract between the lending and borrowing employers. 23 In discussing Rhode Island law, the court acknowledged that in some other jurisdictions the judiciary has abandoned the so-called one master rule. 24 The trial court noted that it was bound to follow the single master concept because the Rhode Island Supreme Court had not changed its stance on the subject. However, it recognized that in the typical situation, the lending or general employer retains broad control over its employees while the borrowing employer or temporary employer assumes control over the details of the job and the manner of performance. 25 The court made certain that it limited its review to whether the borrowed servant doctrine was applicable in this situation such that it would relieve the radiology group from liability for the actions of the traveling scan technician. It considered irrelevant to this inquiry the terms of the Client Agreement that implicitly ensured that [the worker] was capable of performing her role as a CT scan technician and had the capacity to make independent decisions. 26 However, the court did suggest that had the motion involved such allegations as breach of an implied contract, misrepresentation or negligent hiring, then any implied promises made by the radiology group might be important. 27 So one may ask, if the contract is the primary source for a borrowed servant case, why did this matter come up twice on a motion for summary judgment? The answer can be found in the specific facts of the case. The renewed motion for summary judgment was all about whether or not the radiology group staffing supervisors acting under the Client Agreement had the prerogative to manage the way in which the scan technician performed her duties while doing CT scans at the healthcare facility. The affidavit from the radiology groupʼs general counsel made it clear that the staffing supervisors did not and could not supervise or direct the delivery of clinical care by the scan technician at the healthcare facility. PAGE 5

6 Thus, while the Client Agreement might have been the primary evidence, additional, credible information was needed to demonstrate if the parties were adhering to the contract. The Rhode Island opinion does not establish a legal precedent. This was a ruling from a trial judge on a motion for summary judgment. Nonetheless, it illustrates the degree of scrutiny one can anticipate in borrowed servant cases. Contracts alone will not be sufficient, especially if there are facts and evidence that suggest that the behavior of the parties to the agreement varied substantially from the terms and conditions. Healthcare relies to a large extend on staffing agencies and loaned employees to carry out administrative and clinical care. It is commonplace to find outsourcing to hospitalist groups, contracted CRNAs and nursing staff agencies. Over time, the borrowed or loaned individual may become part of the fabric of the institution. Completing additional functions may occur in response to a request of a clinical supervisor or a colleague who is employed by the healthcare entity. Such a phenomenon is sometimes referred to as mission creep. If the staffing agency is aware of the practice and implicitly condones it, one can appreciate that there could be serious repercussions, especially if in the course of clinical care a patient is injured by a loaned provider who exceeds not only the scope of the Client Agreement, but also her competencies. No doubt, loaned workers can be caught up in the vortex of dueling masters. Rather than confuse role and responsibility, more needs to be done that crafting a solid contract. Education is a must for the borrowed servant and expectationsetting is essential for the healthcare organization. Risk Management Strategies for the Borrowed Servant Relationship. As the Rhode Island trial judge noted, contracts play a pivotal role in determining whether or a not an individual is a borrowed servant. However, the facts of a specific case also weigh heavily on such determinations. To avoid misunderstandings, there are number of practical risk management strategies, including the following: PAGE 6

7 1. Work with Legal Counsel to Develop an Acceptable Outsource or Client Agreement. Recognize that both parties to outsource or client agreements have specific interests that must be addressed to safeguard their rights. Both parties have a common interest, however, in making certain that the terms, conditions, and definitions incorporated into the contract are free of ambiguity or wide variances in interpretation. Think about defining terms that are subject to different meanings such as exercise of professional judgment, supervision, and scope of responsibilities. 2. Field Test the Terms with Human Resources, Administrative and Clinical Leadership. Before executing an outsource or client agreement, ask the end users to field-test it. Pose a series of questions to make certain that the application of the contract does not result in misunderstandings or misinterpretation. Revise terms that cause such challenges in the agreement. 3. Orient Outsource Personnel to Specific Tasks. Do not rely upon the entity supplying outsourced or loaned workers to orient them to the policies, procedures, and practice routines of the healthcare facility. Take the time to have someone on staff provide necessary training and competencies training. Recognize that such steps can help avoid misunderstandings regarding clinical procedures, EMR or EHR software and in the administrative arena, billing and coding programs. 4. Make Certain Supervisory Personnel Adhere to Contractual Terms and Conditions. Avoid mission creep by reiterating with local supervisory personnel the need to follow the terms and conditions of the outsource contract or client agreement. 5. Encourage Use of Chain of Command. Instill in employees and agency personnel the importance of confirming assignments or tasks. Encourage the use of chain of command so that any uncertainty is resolved prior to undertaking important administrative or clerical tasks. Reinforce the importance of using the chain of command with respect to any clinical matter. PAGE 7

8 6. Resolve Identified Problems in the Application of Outsource or Client Agreements. Do not wait until there are situations involving administrative errors or adverse clinical events to take action on known challenges arising from the outsource contract or agreement. Take a preemptive approach, solidifying communication between an accountable healthcare facility designee and his or counterpart at the outsource entity. Recognize that the resolution may involve replacement of assigned staff. When serious issues cannot be resolved, discuss with legal counsel how to invoke resolution of serious deficiencies under the agreement or termination of the contract. Conclusion. The idea of the borrowed servant is not a 21 st century concept. The idea can be traced to a time in English Common Law when judges crafted the idea of respondeat superior, obliging the master to be responsible for the errors and omissions of an apprentice or worker during, and in the course of, the employment relationship. In contemporary healthcare the concept of the borrowed servant is important given the extent of outsourcing of administrative and clinical personnel. From a risk management standpoint the contract alone is not enough to protect the interests of either party, or for that matter to safeguard patient safety. A strong risk management approach will take steps to maintain adherence with policies, procedures, and protocols that guide day-to-day activity so that both parties can confidently answer the question of who conducts the work, and who supervises it while avoiding negligent care. 1 A. v. RWMC, 2011 R.I. Super LEXIS 35 (March 9, 2011). 2 Id. at Id. at 2. 4 Id. at 1. 5 Id. at 2. 6 Id. 7 Id. 8 Id. at 3. 9 Id. 10 Id. at Id. 12 Id. at Id. PAGE 8

9 14 Id. at Id. at 8, referencing Higham v. T.W. Waterman Co., 80 A. 178 (R.I. 1911). 16 Id., referencing Higham v. T.W. Waterman Co., 80 A. 178, 181 (R.I. 1911). 17 A. v. RWMC, supra note 1 at Id. at Id. at Id. at Id. quoting Higham at Id. at Id. at Id. at 9, referencing Morgan v. ABC Manufacturer, 710 S.2d 1077 (La. 1998). 25 Id. 26 A. v. RWMC, super note 1 at Id. PAGE 9