EMS Insider, Legal Consult

Bullying in the Healthcare Industry

The term bullying, when applied to the workplace, has been used interchangeably with words such as incivility, disruptive behavior and mobbing. However, most of the research and legislation dealing with this issue have used the term bullying to refer to repeated, persistent and deliberate behaviors intended to control or harm the target. Thus, in this article, the term bullying is used to describe such behaviors as spreading rumors, undermining the victim’s integrity, ridiculing the victim for their beliefs or lifestyle, attacking their reputation or competence, assigning meaningless work tasks below their level of training, withholding information that affects their job performance, ignoring or excluding, public shaming, and making verbal and nonverbal threats.1

Workplace bullying has been further delineated into two subgroups: horizontal bullying and vertical bullying. Horizontal bullying occurs when one employee targets another of similar rank. Vertical bullying occurs between a supervisor and a subordinate. However, contrary to common belief, not all vertical bullying goes from the top down. Sometimes, the offender is a subordinate who targets his or her superior. In fact, one in 10 bullying victims is a supervisor or manager.2,3

Workplace bullying has garnered the attention of both mainstream media and academic research. According to one study, 98% of all workers have experienced bullying at work at some point during their career.4 But when it comes to frequently recurring incivility, 35% of all Americans (nearly 54 million people) admit to having been bullied in the workplace, while 15% report having witnessed bullying behavior at work. That is approximately the population of Oregon, Washington, Nevada, Utah, Arizona and California.5 In the workplace, more employees experience bullying than racial or gender discrimination or sexual harassment.6

Medical Field Prevalence & Impact

Within the medical industry, studies have suggested that healthcare workers are more likely than workers in other American industries to experience workplace bullying.7 For example, one study found that 71% of radiation therapists have been bullied and 94% have witnessed such activity.8 Another study suggested that healthcare professionals are more likely to experience workplace bullying than employees in other industries because of the demands and pace of the work environment and the emphasis on performance. This is consistent with the findings of another study, which suggested that negative behaviors are more likely to occur in high-stress environments and physically limited workspaces.9

Impact on Victims: The impact of bullying on an employee’s job satisfaction cannot be overstated. Victims experience a loss of meaning derived from work, an inability to focus and a sensation of dread at the very thought of going to work.7 Victims report “feelings of exclusion, isolation, intimidation, belittlement and humiliation,” as well as damage to professional identity and resulting limitations of career opportunities, including being overlooked for promotions.10

The physiological and psychological effects of bullying are startling, with targets reporting such health effects as insomnia, depression, anxiety, gastrointestinal complaints, hypertension, chest pain, palpitations, weight loss, headaches, loss of libido, worsening of chronic illness, post-traumatic stress disorder and even thoughts of suicide.7,8 The stress caused by being bullied at work can spill over into the target’s home life, affecting relationships with family and friends.11–13

Impact on Patients: Of particular concern for healthcare professionals is the fact that numerous studies suggest that bullying behavior can have a significant negative impact on patients.7 A 2005 study uncovered the startling revelation that 94% of nurses feel that bullying behavior has a negative impact on patient outcomes, with 54% stating that patient safety is affected.14 This may be due in part to how bullying is perceived to cause staff to lose motivation, commitment to their employer and the ability to concentrate at work, all of which puts the employee at greater risk of making mistakes on the job.8 As an example, according to the Institute for Safe Medication Practices, bullying increases the risk of medication errors.15

In light of these risks to patient care, it is no wonder that the American Nurses Association and the American Association of Critical-Care Nurses have both published position statements focusing on the problem of bullying in the workplace.16,17 It should not be surprising that in 2009, the Joint Commission on Accreditation, Healthcare and Certification, issued a requirement that hospitals protect their employees by implementing and enforcing codes of conduct that include a prohibition against bullying behavior.18

Impact on Employers: Aside from the impact this behavior has on victims and their patients, bullying can also lead to significant expenses and headaches for employers. Many times, the employer may be completely unaware that the reason for their woes is the underlying phenomenon of workplace bullying. A company can be impacted by increases in turnover, absenteeism (use of sick time, worker’s compensation due to depression, disability, etc.), and the costs of recruiting replacement personnel, as well as an increased risk of civil litigation.10,19 Some studies have found that 25% of targets and 20% of witnesses will resign due to bullying at work.19

The Healthy Workplace Bill & Legal Ramifications for Workplace Bullying

Currently, the risk of an employer losing a court battle with an employee who has been bullied at work is relatively low, as no law specifically deals with this issue. However, some researchers have estimated that the cost of having to battle bullying-related lawsuits can be more than $350,000 per incident.20

Bullying-related lawsuits have thus far been fought on the grounds of such things as defamation, assault, intentional infliction of emotional distress, and Title VII anti-discrimination and harassment laws.

Defamation: Defamation may occur when someone communicates false statements about another person to a third party. This tort may be further classified as slander (which means the statement was made verbally) or libel (in which case, the statement was written).

Most of the time, a defamation suit must also prove that the false statements caused harm to the target’s reputation in some manner. However, in some cases wherein the statement is related to the person’s profession, which has the potential to affect his or her livelihood, no proof of actual reputational harm is required. The harm is simply presumed, because these statements can influence whether the person is hired, promoted, disciplined or terminated, and they can impact relationships with coworkers and supervisors.

Bullying can easily cross over into this domain. For example, imagine that a union representative berates a coworker during a shop meeting, claiming that there have been more than 10 complaints received regarding his or her behavior over the past year. If the representative cannot prove that these 10 complaints were actually received, or further if the representative failed to adequately document and investigate the veracity of these alleged complaints, he or she could be found liable for defamation because third-party union members were present at this meeting and the defamatory statement had the potential to affect the target’s professional reputation or working conditions. Assuming that the representative actually received any complaints at all, what about the employees who lodged these complaints? Are they at risk of a defamation suit? The same rules apply. If a person knowingly makes false statements about a coworker to a third party (i.e., the union representative) they are taking a senseless risk.

Employers should also use caution when providing information regarding a former employee to a prospective new employer. Making comments regarding the employee’s job performance or character should be based on fact and should be well-documented, and expressing personal opinions should be avoided altogether. A further step in protecting oneself is to receive a signed written statement from the former employee, authorizing the release of information to third party employers.

The best defense against a defamation claim is to ensure all statements made regarding a co-worker, subordinate or supervisor are truthful and provable, assuming these statements need to be made at all.

Assault: In the case of Raess v. Doescher, 2001, a member of a hospital operating team was awarded $325,000 after suing a heart surgeon for an argument that ended when the surgeon screamed and lunged at him.21 The case was argued on the basis of assault, because the behavior was said to be physically threatening, although the term bullying was used multiple times throughout the trial.

Intentional Infliction of Emotional Distress (IIED): Though the name of this law makes it sound as though it would be the perfect weapon against bullying, it falls short due to its stringent definition of the offender, who by “extreme and outrageous” conduct intentionally or recklessly causes “severe” emotional distress to another.”22 The words extreme, outrageous and severe have made claims of IIED very subjective and, historically, difficult to substantiate.

Title VII of the 1964 Civil Rights Act, Hostile Work Environments, and Discrimination: Title VII and other federal anti-discrimination laws only apply when the victim is targeted on the basis of race, religion, gender, national origin, age, pregnancy, familial status, disability, veteran status, etc. More than 75% of bullying cases are not within the scope of anti-discrimination laws.23 Thus, the use of Title VII is rarely a successful means of dealing with a bully and the employer allowing the behavior to continue unimpeded.

Healthy Workplace Bill: In the U.S., an amazing 64% of Americans believe victims of bullying should be able to sue their employer.24 What may come as an even bigger shock is that the move to pass laws in the U.S. that make employers legally responsible for workplace bullying is quickly gaining ground. Many American states have modeled their own anti-bullying legislation after what is known as the Healthy Workplace Bill (HWB), originally developed by David Yamada in 2004. The bill is intended to hold workplace bullies and their employers accountable by empowering victims with the ability to bring civil action against them.

As of 2016, the HWB has failed to be signed into law. However, it has been introduced in 29 states and two territories.25 The HWB came very close to approval in New York in 2010 when senate bill S1823 B passed the state senate but failed in the New York assembly. A previous version in 2009 passed both the senate and the assembly, but was vetoed by the governor.26

What is particularly noteworthy about these near misses is not that they failed to be implemented into law, but rather that they have in fact come so close. Lobbying efforts continue to grow and move forward. In fact, at the time of this writing, the HWB is already being reconsidered by New York state legislators in the form of S6438/A3250, which has already garnered the sponsorship of 81 assembly members.26 It may only be a matter of time before the HWB becomes the law of the land across the U.S.

Recommendations to Employers

Rather than waiting for the threat of legal action under the HWB to come knocking at the door, employers are better off confronting bullies proactively, right now. Studies have shown that companies that manage people effectively outperform others by as much as 40%.27 Law enforcement agencies and the Department of Education have both established evidence-based interventions for addressing the problem of workplace bullying.28 These zero-tolerance measures could serve as a model for other companies to emulate.

Sadly, one study found that of companies sued for workplace bullying-related offenses, only about 50% had either a workplace bullying policy or a code of conduct in place. And of those that did have such policies, many failed to enforce them.3 Another study found that in 62% of cases, the employer either did nothing or even made the situation worse for nurses who had reported that they had been bullied.29

Fear of retaliation, stigmatization or harm to one’s chances for career advancement may lead to underreporting of offenses. Because of this, many employers may be completely unaware that they even have a bullying problem inside their company.

The likelihood that an employer will lose a civil litigation suit purely on the basis of bullying behavior is relatively low. However, the cost of fighting these lawsuits can be significant. Additionally, turnover, and the subsequent need to recruit new employees, increases in absenteeism, and possibly a resulting increase in overtime pay to employees who have to pick up the slack can all contribute to what are arguably preventable financial blows. Thus, from a cost perspective, implementing a system-wide program designed to curb bullying behavior likely makes more sense.

Ethically, cost prevention should not be the primary motivation for creating comprehensive policies or codes of conduct that address bullying. The well-documented health effects on the employee should be cause enough for our concern. Given that other healthcare industries have already taken action in this arena (e.g., the Joint Commission, the American Nurses Association, and the American Association of Critical-Care Nurses), the prehospital community has perhaps fallen short of keeping up with the times.16–18

To date, I am unaware of any meaningful research efforts or campaigns focused on the problem of bullying within the prehospital setting. And in working conditions that are already stressful, demanding and emotionally exhausting, shouldn’t prehospital leadership take heed of the very same warnings to which hospital administrators have already responded? And what about the previously mentioned risks to our patients? As professionals desiring to place patient care and safety above all other priorities, we have a responsibility to address anything that threatens to sabotage that objective.

It is my recommendation that employers give serious thought to the creation and enforcement of codes of conduct that make bullying a zero-tolerance matter. Further, companies should take additional proactive steps to develop educational programs and to foster an atmosphere that eliminates the fear of reporting incivility. As previously mentioned, such measures have proven beneficial for other industries.18,27

Finally, to those who would say that being bullied is “just part of the job” and that employees must have a thick skin in order to work in our business, I assert that such arguments only serve as excuses for a lack of self-control and the failure to learn the basic moral tenets that most of us learned in kindergarten.

 

In addition to serving as a Training Officer for the St. Charles County Ambulance District in Missouri, Captain David L Dalton, BS EMT-P, is the creator of the AAOS video, Practical Skills Prep for the EMT, published by Jones and Bartlett, and a contributing author for the latest editions of the textbooks, “Emergency Care & Transportation of the Sick and Injured, 10th Edition”­ & “Nancy Caroline’s Emergency Care in the Streets, 8th Edition.” Dalton has also begun traveling to state and regional conferences, addressing such topics as Depression & Suicide, Restraints & Involuntary Transport Law, and the evidence-based rationale for the recent changes in the way EMS providers manage Spinal Injuries. He can be contacted at [email protected]. More information is available at www.ddaltonproductions.com.

REFERENCES

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22. Duhaime’s Law Dictionary. (n.d.). Intentional infliction of emotional distress definition: the malicious and outrageous causation of severe emotional distress. Retrieved Aug. 19, 2016, from www.duhaime.org/LegalDictionary/I/IntentionalInflictionofEmotionalDistress.aspx.

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