The article outbreak of Hepatitis C associated with a technician named Mr. David Kwiatkowski, who worked at Exeter Hospital, is full of complexities and controversies. From the article, their evidence that the hospital was negligent is clear after analyzing the situation legally. After reviewing the issues that filled the case behind the outbreak of hepatitis C, it is clear that the crucial gap did not arise from a single deficiency, but due to various gaps in regulations, allied to the hospital; credentialed of the Technician, human resource, risk management practices and the licensing ways at the hospital staff and the facility at large.
The human resource team that employed Mr. Kwiatkowski is not under regulations and thus created risk for the customers of the hospital. Before securing the technician a place in the hospital, they did not ask him, his previous employer about the use of drugs and diversion, or about the safety of patient; risks and violations. The Human Resource did not flag out the unlawful employment references to incoming employers; this is because the departments are not compensated by health care custodians in case placement becomes successful.
At the contract terminal, human resource team do not need a written analysis if the license covers the safety violation of the patient, or shows any traces of drug diversion or abuse. Even when the staff issue negative results, it seems the human resource do not pass the information in such evaluations to medical boards and authorities, or show to the potential employers. In general the hospital did not communicate to its people the crucial aspect of diversion of drugs and the safety of the patient and risks involved with injection. Well trained people and extremely educated did not recognize or find signs of addiction or in another case fail to abide by the policies in place about the drug diversion and abuse among the colleagues in the hospital.
There is negligence on the hospital side, because efficient hospital provides a chance for the healthcare staff to manipulate and steal devices and medications leading to infection of patients with airborne contaminants. The multitasking among the staff in situations that are emergent and poor supervisory control allowed the gaps in the security of medication. This laxity in supervision in the hospital enabled the technician opportunity to reach the syringes to carry out drug diversion.
Respondeat Superior
The hospital is vicariously liable for Mr. Kwiatkowski commissions, omissions and negligent act. Mr. Kwiatkowski was answerable to the hospital and within the terms of his employment, under the docket of respondeat superior. At any degree, Mr. David had responsibility with the care standards of the technicians and to behave as a person who is reasonable under the same circumstances.
His responsibility required him to make sure that his codes did not expose the patients to risk. While under employment of hospital and operating within the course and scope of the hospital, the technician breached his responsibility and recorded negligence by endangering the patients through contaminated syringes and causing infection of Hepatitis C to his customers. The hospital is liable for the negligence because the hospital has responsibility to act and behave according to the set standards of the facility. The hospital breached his responsibility by failing to test, train and watch David. Failed in procedure of hiring employees, servants and agents. Consequently increased the harm to patients by the negligent omissions of Mr. David.
Employee VS Independent Contractor
Assuming that the hospital wants to replace Mr. Kwiatkowski, it faces a hard time in choosing whether to use an independent contractor or an employee. The legal distinction between the two forms of employment is different. This defines control level a worker has over his responsibilities or the performance. The hospital need to consider the information that give evidence on the level of independence and control that it needs.
Basically, legal institutions will have to check on the factors that show degree of control that the employer exercises verses the person providing the services. For example if the employer or the employee supplies the instruments necessary for the work. Who schedules the work, the training and the instructions that employer provides. Consequently, whether a person carries us the day-to-day services to the hospital, and if the staff has his own office or working station.
Although the hospital will have to sign the contract specifying the employee either, as an independent contractor or the employee. The legal frameworks look beyond the contract and independently find the necessary classification on the real relationship of the work. The institutions may consider the “contract” to showcase intention of the parties and the beneficiary of the arrangement. Therefore working as an independent contractor involves none of legal significance. Some of the advantages in employing an independent contractor include; no overtime pay, no benefit, no withholding and no Social Security and Medicare Taxes contribution and finally no worker compensation.
Most people who do the duties for health care facilities are “employees”. The independent contractors are very few. The Hospitals are reluctant in accruing the real unfunded set back; unpaid employee, unpaid overtime, violation penalties as well as the unpaid liabilities benefits when it does not classify a worker as an independent contractor. For the same reason, it is important that the hospital set up the processes and rules needed for employment. From the above facts it is necessary for the hospital to hire a new worker on “employees” basis. This is due to legal obligation that accompanies an employee in case of a liability.
