ACTION REQUIRED

February 9, 2016

Jeff Clawson, M.D.

Ask Doc

By Jeff Clawson, M.D.

Journal Issue: 2015 Jul/Aug

Dr. ClawsonI am having a conversation with a fellow EMD at work and need some help with a legal term. I remember my EMD instructor covering a legal aspect of agencies that provide EMD services that addresses the agency failing to correct or remove an employee who continuously fails to follow protocol, but I can’t remember what it is called. For example, an employee is consistently making mistakes, the agency fails to correct them, and a subsequent mistake ends up causing injury or death to a patient. Can you advise me what that is called? I have been unable to locate it in my EMD textbook or online.

Name withheld upon request

The name of this legal concept is “negligent retention.” It is taught in the EMD course and can be found in the Universal Course Manual on page 3.8. It is defined as a cause of action against an employer for negligently retaining in its employment an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. Traveler’s Insurance Risk Control states regarding this issue, “A claim of negligent retention of employees is similar to a claim for negligent hiring both of which, like most tort theories, were developed from common law. If the employer discovers during the course of employment that the employee is unfit to perform the job and takes no action, there may be liability to the employer under [this] theory.”

The Emergency Telecommunicator Course Manual on page 10.10 further states:

“Negligent retention is the omission of remedial or other prudent action on the part of an employer toward an employee whose performance is known. For example, if an agency has documented incidents of poor performance from a dispatcher, that agency is obligated to take appropriate action. Appropriate actions include documentation, remedial training, oversight, monitoring, and, if necessary, termination. If no action is taken, or if such action is inappropriate or ineffective, the agency may be held liable if the employee acts negligently.”

While it isn’t specifically mentioned in the Principles textbook, the Boff case in Dallas (starting on page 11.27) had a significant element of this regarding the previous performance issues with Billie Myrick, the nurse triager, who had been put up for discipline and possible termination by her supervisor, which the fire department brass quashed. Then the bomb went off with her “no send” argument and judgmental behavior with Larry Boff, the caller.

Hope this helps.

Jeff Clawson, M.D. IAED Division of Research, Standards & Academics