In the employment context, we often hear “document, document, document.” But keep in mind that the documentation you write to employees to reflect problems with their performance or behavior later can be used against you in a medical malpractice claim.
Let’s assume you have a doctor and his level of care does not meet standard. And, let’s further assume he should be terminated.
If you terminate him for sub-quality care, providing multiple examples, that label, and accompanying examples, may be used against you in a medical malpractice claim involving that doctor.
What if you say instead, the doctor failed to provide the optimal care we demand with only a fewer less extreme examples and making clear that they are only examples (so you can still raise others). You can still argue that the care, while not optional, was not negligent.
Is sub-optimal as strong as sub-standard in defending an EEO claim? Probably not.
But we need to look not only at EEO but also malpractice risks. Almost always, potential liability in mecdial malpractice cases is higher than in employment cases.
This is but one many documentation errors that health care providers can make when managing employees. With training, managers are better able to nuance the reason for termination so they can defend a wrongful discharge claim without writing what may be a smoking gun for plaintiffs’ lawyers in a malpractice claim.