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Summer 2005 

LEGAL ALERTS

 

The keys to reduce exposure: Job accommodation
requests in the health care industry

By Michael C. Holy, Esq.

Michael C. Holy, Esq.It is commonly understood that the health care profession is a service industry which often makes significant physical demands on its employees. For example, nursing and related support staff must be able to lift, transport and care for frail or obese patients.  It is hardly surprising to find that nursing personnel suffer a high incidence of work-related injuries. In fact, recent Bureau of Labor Statistics reflect that registered nurses are sixth in a list of at-risk occupations for strains and sprains.  Given these realities, health care employers often encounter employees whose injuries make them no longer capable of performing tasks assigned to them. Since numerous federal, state and local disability laws expose employers to significant liability for violation of disabled employees rights, health care employers – like many others- must be careful in dealing with job accommodation requests. This article discusses worker requests for “reasonable accommodation” under the Americans with Disabilities Act (“ ADA ”) and ways in which healthcare employers can reduce their exposure to alleged violations under the Act.

The ADA Framework 
The ADA provides the basic framework regarding the rights of individuals with disabilities.  The ADA essentially governs the employers obligations with respect to claims for accommodation of a worker’s physical limitations. The ADA generally prohibits employers from “discriminating against a qualified individual with a disability because of the disability of such individual.” To be covered by the ADA , an employee must establish that she is “a qualified individual with a disability”, which is defined as “an individual with a disability who, with or without accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

In the context of the ADA, a worker who suffers a physical limitation and is unable to perform the requirements of the job, may either request an exemption from the physical requirements or may request a transfer to a less physically demanding position.  This is a “reasonable accommodation” request under the ADA . How an employer responds to the request may prevent or assist in the defense of an employment lawsuit down the road. 

The Job Accommodation Request and Legal Considerations for the Employer
Under the law, an employer may be required to change certain requirements of the worker’s job, but the employer is not required to exempt a disabled worker from performing those duties that are considered the “essential functions of the employment position”. Whether a lifting or mobility requirement is an “essential function” calls for a fact specific analysis. The following should be considered by the health care employer in its analysis:

(1)  Where the worker requests a transfer to a less physically demanding position, keep in mind that courts often second-guess the employer’s decision to deny a transfer. While an employer need not create a position for the disabled worker, it should document its good-faith efforts to find a “comparable” job for the worker.

(2)  Remember that discussion of physical limitations of a job applicant is generally not permitted. Pre-employment inquiries are only permitted to the extent they are narrowly tailored to the applicant’s physical ability to perform a specific “essential” function of the job. An employer may describe or demonstrate an “essential” job function and inquire whether the applicant can perform the function, with or without accommodation. The better approach, however, is to avoid questions regarding an applicant’s disabilities during the interview process since the question of whether a job function is “essential” is often litigated. If a disability is raised by a job applicant, the interviewer should emphasize that the only purpose for discussing physical limitations is to determine the applicant’s ability to perform the essential functions of the job and to establish the appropriate forms of accommodation that should be considered. If any discussion of disabilities does occur during a job interview, a careful record should be made of how the subject was raised and what was said between the applicant and the interviewer, as well as the basis for any subsequent decision to reject the applicant.

(3)  In determining “comparable” positions, Courts have held that offering a job that was inferior in salary and benefits or even a loss in seniority is not comparable and does not constitute a reasonable accommodation.

(4)  Whether an employer should give preferential treatment to an employee with a disability seeking an accommodation is an open question and calls for a fact specific analysis. For example, in EEOC v. Humiston-Keeling, Inc., the Court held that an employer was not required to assign an employee to one of its vacant positions to accommodate her disability, where the employer had a policy of giving vacant jobs only to the best applicants, and where the employee’s disability did not play any role in the decision favoring one of her competitors. However, the United States Supreme Court’s decision in U.S. Airways, Inc. v. Barnett, sends mixed signals with respect to the question of whether a disabled employee should receive a preference when requesting a transfer.

(5)  When an employee with a disability requests that she be exempted from certain requirements of the job, the question becomes whether the proposed change relates to an “essential function” of the job.  Keep in mind that the ADA does not require an employer to eliminate an essential job function. As you may have already suspected, what constitutes an essential job function, however, is the stuff of lawsuits. In Phelps v. Optima Health, Inc., the Court held that the hospital did not have to continue job sharing as a reasonable accommodation because “an employer need not exempt an employee from performing essential functions, nor need it reallocate essential functions to other employees”.  Be advised, however, that a different result was reached under slightly different facts in Rodal v. Anesthesia Group of Onondaga, P.C.

Conclusion
Health care employers should identify the essential functions of each employee position and should strictly follow the decision. Further, health care employers should ensure that their written descriptions of each employee position reflects an accurate description of the essential job functions. These written job descriptions should be updated so they accurately reflect current job duties being performed by the worker. If a health care employer decides that an accommodation should be given, it should be made clear that the accommodation is being done on a trial basis or for a specific time period, and that the essential functions of the job have not changed. While these suggestions may not prevent a worker from suing under the ADA , the health care employer’s practice of preparing accurate written job descriptions, having a consistent approach, and preparing accurate documentation, will all prove to reduce liability exposure when confronted with the “job accommodation” request.

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The Good Samaritan Act – Don’t forget about it
By Andrew J. Kovarik

Andrew J. KovarikGood Samaritan laws generally help protect rescuers voluntarily helping a victim in distress from being successfully sued in Tort.  They’re designed to encourage people to help a stranger in an emergency by reducing or eliminating the fear that if they do help, and inadvertently make a mistake in treating that person, that they will be sued for that mistake.  All states have some form of Good Samaritan laws.  In practice, we need to be aware of the provisions of the Act so we can use them to our advantage under the right set of circumstances.  In fact, the General Assembly states in the Legislative Purpose section of the Act that the Act is to “liberally construed” to encourage persons to volunteer their time and talents.

The Act covers a variety of “health care” professionals who volunteer to help others.  The Act covers, in part, dentists, physicians, free medical clinics, nurses, physician assistants, and even veterinarians, performing emergency care to human victims in certain situations under specified circumstances.  In our practice, the most common issue with regard to the applicability of the act involves physicians.  That section of the Act provides:

“Physicians; exemption from civil liability for emergency care.  Any person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human aliments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.” 

The Act as it currently reads was amended in 1998.  Prior to that time, the pre-amended version immunized a doctor from liability if a three-part test was passed: (1) the doctor did not have notice of the injury; (2) the doctor provided emergency care; and, (3) the doctor did not charge a fee. The Act, in its current form, does not include the “notice” provision.

There is not a significant amount of case law on the Act. The Act has been held to apply to a physician who was already in the hospital when called to assist in an emergency. In Johnson v. Matviuw, the defendant was attending to one of his own patient’s in the hospital when he was summoned to assist in an emergency.  (See also Villamil v. Benages).

In Heanue v. Edgcomb, the Court discussed the term “good faith.” The Court held that the term “good faith” modifies both “provides emergency care” and “without fee.” Plaintiff argued that a physician could simply omit from an itemized bill certain services to avoid liability and the Court remanded the case so the parties could address whether the defendant’s decision not to charge a fee was made in good faith.

Additionally, in Rivera v. Arana, the Appellate Court, First District, commented on the definition of “emergency” as that term is used in the Act. The Court stated that a “flexible broad definition” was logical given the purpose of the Act and the need for medical providers to intervene and take care of people in certain situations. The Court went on to state that the question of whether an emergency situation exists is to be resolved on the “… unforeseen, unexpected combination of circumstances presented which require the need for immediate action, assistance, or relief.”

The other provision applicable to many of us in our practice is Section 49/30 regarding free medical clinics.  That section provides in pertinent part that:

“Free Medical Clinic; exemption from civil liability for services performed without compensation.

(a)  A person licensed under the Medical Practice Act of 1987, … who, in good faith, provides medical treatment, diagnosis, or advice as part of the services of an established free medical clinic providing care to medically indigent patients, which is limited to care that does not require the services of a licensed hospital or ambulatory surgical treatment center and who receives no fee or compensation from that source shall not liable for civil damages as a result of his or her acts or omissions in providing that medical treatment, except willful or wanton misconduct. 

(d)  The immunity from civil damages provided under sub-Section (a) also applies to physicians, hospitals, and other health care providers that provide further medical treatment, diagnosis, or advice to a patient upon referrals from an established free medical clinic without fee or compensation.” 

We recently defended a case and the defense was successful in dismissing the cause of action utilizing the above provisions.  In our case, the plaintiff presented to a free clinic in Skokie , Illinois and was treated by the defendant physician.  The defendant physician provided treatment, diagnosis, and advice and suggested a minor surgical procedure at a local hospital.  Further medical treatment was provided by the defendant at the hospital on referral from the free clinic and the hospital did not charge the patient for the services rendered.  The patient subsequently filed suit-alleging negligence in the performance of the surgical procedure.  In our case, the defense was granted summary judgment on behalf of both the defendant physician, who initially saw the patient at the free clinic, as well as the hospital and its medical student, who provided further medical treatment upon referral from the free clinic, using the above provisions.

Finally, in the recent Tort Reform Bill, the legislature addressed Section 49/30 of the Act.  As noted above, that provision deals with the free medical clinic.  In sub-paragraph (a) of Section 30, the legislature added to the list of health care providers covered to include retired physicians and extended the services rendered at the clinic to include home visits.  In sub-paragraph (d), the legislature again added retired physicians to the list of health care providers delineated in the Act and also expanded the scope of that section to include hospitalization, office visits and home visits. The legislature has also proposed that the free medical clinic may now receive reimbursement from the Illinois Department of Public Aid, provided that any reimbursement is used to pay for overhead expenses of the clinic and not to provide a fee or other compensation to any health care professional that is receiving an exemption under this Section.

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Apparent agency – jury instruction
By Sammi L. Renken

Sammi L. RenkenApparent agency is an important issue to understand in evaluating hospital exposure in cases where the defendant physician is not an actual employee or actual agent of the hospital.  Apparent agency is essentially the plaintiff’s claim that the hospital is vicariously liable for the acts of its non-employees, or independent contractors, providing services at the hospital.  Where a hospital leads a reasonable person to believe that the physician or staff was its employee or agent, then the hospital will not be permitted to later deny the employment or agency relationship.  The three part test for apparent agency under Illinois law includes:  1) a showing that the hospital or the purported agent held themselves out such that a reasonable person could conclude that an agency relationship existed; 2) where the agent’s actions created the conclusion of agency, acquiescence must occur by the hospital; and 3) the plaintiff was justifiably reliant on the hospital in electing to receive care from the purported agent. 

However, many times despite good factual arguments on the issues listed above, the jury instruction on agency in Illinois can be difficult to overcome for the defendant hospital. Should the issue of agency actually get presented to the jury, the jury instruction is as follows:

Under certain circumstances, the liability of a party may arise from an act or omission of that party’s apparent agent. In the present case, PLAINTIFF has sued HOSPITAL as the principal. PLAINTIFF claims that DOCTOR was the apparent agent of HOSPITAL.  HOSPITAL denies that any apparent agency relationship existed.  In order for an apparent agency to have existed, PLAINTIFF must prove the following: First, that HOSPITAL held itself out as a provider of SERVICES LIKE THOSE OFFERED BY DOCTOR and that PLAINTIFF neither knew nor should have known that DOCTOR was not an employee of HOSPITAL. Second, that PLAINTIFF did not choose DOCTOR but relied upon HOSPITAL to provide services LIKE THOSE OFFERED BY DOCTOR. If you find that DOCTOR was the apparent agent of HOSPITAL at the time of the occurrence, then any act or omission of DOCTOR was the act or omission of HOSPITAL, and HOSPITAL is liable for the acts or omissions of DOCTOR. ( Illinois Pattern Jury Instructions 105.11, 2005, 298-299.)

The holding out, or reliance test, in practice is only used when there is a dispute as to reliance by the plaintiff.  However, the reliance test is not clearly articulated in the jury instruction.  The wording of the jury instruction makes it more difficult to prevail on an apparent agency defense even with good factual evidence that the plaintiff did not rely on the hospital in receiving care from the alleged agent physician.  This makes it more imperative that all agency issues are covered when deposing the plaintiff and/or heirs in order to make the case as strong as possible that the physician defendant was not an apparent agent of the hospital.  Framing the deposition questions to more closely mirror those issues in the jury instruction is helpful.  However, even with the best factual scenario, an apparent agency defense is still a difficult win in Illinois for defendant hospitals.

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Healthcare Law Alert is a periodic publication of Johnson & Bell, Ltd. and should not be used or relied upon as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only and you are encouraged to consult with one of the attorneys listed above concerning this newsletter or your situation on any specific legal questions you may have. © 2005 Johnson & Bell, Ltd.