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When can a hospital or other health care organization just let a really bad actor move on to another organization and cause serious injury to unsuspecting patients? It may be OK to keep your corporate mouth shut if the former employee is an accounting clerk who was habitually tardy, but quite another thing to give a former anesthesiologist with a drug problem a favorable recommendation. The health care industry, more than any other industry, should appreciate the likelihood of a serious injury to a patient when an impaired anesthesiologist shows up in the operating room.

Recommendation brings liability

Jury says [prior] problems should be disclosed

In a case that’s raising questions about the liability of employers who do not disclose problems they had with former employees, a New Orleans jury has held that a local hospital and two doctors intentionally misrepresented a former anesthesiologist’s qualifications to a Washington state hospital where he later botched a routine surgery, leaving a 31-year-old mother of three permanently nonresponsive.

The U.S. District Court jury’s late May verdict said Lakeview Regional Medical Center and Mandeville anesthesiologists Dr. Mark Dennis and William Preau should pay at least $4.2 million for hiding the truth about Dr. Robert Berry, 39, including Berry’s dismissal by his partners and suspected diversion of hospital drugs, from Washington’s Kadlec Medical Center before he was hired there in late 2001.

The case is being closely watched by the health care industry, though the ruling could have broader implications for employers in other industries that have shied away from disclosing information about former employees, in part to reduce their liability.

The question now is whether the unprecedented verdict will stand up on appeal.

Roger King, a health care employment law expert with the Jones Day law firm, said he doubts it will because it imposes on employers a duty they don’t have under current law: to report unfavorable information about former staffers to prospective employers.

The speak no evil policy should never apply when the risk of injury to others is foreseeable.

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