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Document employee response to negligent work

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If you employ licensed professionals such as nurses or pharmacists, the time may come when you have to report shoddy practices or ethical lapses to the Ohio board that issues and maintains their licenses.

To avoid a lawsuit over whether your report was malicious and therefore not covered by an employer privilege, carefully document the acts and behavior that you believe are negligent or unprofessional.

Be sure to let the employee respond to your concerns and then note what she says. If, as often happens, she agrees that she did some of the things that concern you, that will become part of your defense if she later sues you for defamation.

Recent case: Darcey Croskey worked as a licensed practical nurse at a health center. The health center had a progressive-discipline process in which employees received counseling or written corrective-action notices based on the seriousness of their offenses. They could be terminated for major offenses.

Croskey received a number of complaints, including one for being verbally abusive, some for medication errors and others for an assortment of problems. The medical facility fired her, citing her poor work record. The facility then sent copies of the corrective-action notices to the Ohio Board of Nursing.

Croskey sued, alleging that reporting her to the board amounted to defamation.

But the court pointed out that during the progressive-discipline process, Croskey had agreed that she had made some of the mistakes cited in the notices. Therefore, she couldn’t make a defamation case. The court said her employer’s report was privileged and had not been made with malice. (Croskey v. Universal Health Services, No. 09-CA-37, Court of Appeals of Ohio, 2009)

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