Archive February 2017 XVIII, No. 2

Legal Update: The Legal Burden of Workplace Bullying

Staff-on-staff hostility puts your facility at risk for litigation.

Angela Burnette, Esq.; and Genta Iwasaki; and Rebecca Kennedy, Esq.

women bullies target other women PICKING ON THEIR OWN Women bullies target other women 68% of the time, according to a 2014 Workplace Bullying Institute survey.

The healthcare workplace hinges on effective collaboration, teamwork and communication. Workplace bullying represents a direct threat to all three. Besides damaging relationships, bullying can also impact patient care and trigger litigation.

In 2008, a perfusionist won a $325,000 verdict against a surgeon who allegedly balled his hand into a fist and pinned the perfusionist against a wall after an argument in the operating room. The surgeon then allegedly walked away while yelling, "You're over. You're history. You're finished." The perfusionist sued the surgeon, asserting intentional infliction of emotional distress and assault. The jury awarded the perfusionist $325,000 for the assault claim, and an appeals court rejected the surgeon's challenge.

In a separate suit in Ohio, in 1993, a male surgeon allegedly grabbed a female nurse by the shoulder and pulled her face close to a patient's surgical incision after she supposedly gave him the wrong surgical instruments. She claimed he then said, "Can't you see where I'm working? I'm working in a hole. I need long instruments." The nurse sued the surgeon for intentional infliction of emotional distress and battery. Although the Ohio Court of Appeals concluded the nurse had not established emotional distress, the court let her battery claim proceed.

If relevant, a pattern of workplace bullying might also add to the damages and claims sought in a medical malpractice suit. For example, a plaintiff's attorney might allege a facility was well aware of the individual's bullying and failed to address it, thus trying to seek "punitive damages." (Punitive damages are additional monetary damages, which are above and beyond those needed to compensate the injured party; these damages are intended to punish the wrongdoer and deter others' such conduct in the future.) A plaintiff's attorney might also allege a negligent credentialing/ retention claim, contending the bullying individual shouldn't have been selected or retained on the facility's medical staff.

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