Dear Sirs,
Our hospital is a 50-bed charitable hospital. One of our staff nurses was found guilty of medical negligence repeatedly. It was so severe that one night during duty, despite clear instructions from the attending doctor to report any abnormalities in the critical patient's vital signs every 6 hours, the nurse failed to do so. For example, the GRBS was recorded at 208 at 10 pm, and by 6 am, the BP was 200/80, which is dangerously high and abnormal for a patient with a history of angioplasty and receiving Mannitol infusion. However, the nurse did not inform the doctor.
During the handover at 8 am for the next shift, when asked why she did not inform the doctor, she instructed others to do so and then left without providing a full handover to the incoming staff. Subsequently, another patient in the final stage of cancer faced complications. The nurse delegated a trainee to attend to the patient and left to change her uniform, claiming her shift was over.
The trainee had to seek help from another department, and despite efforts from the medical team, the patient passed away. Before leaving, she briefly updated the trainee on the other stable patients and departed for home.
Following these incidents, the management issued a show cause notice. The nurse's response was deemed untruthful, leading to her immediate termination and dismissal from duty.
Please advise on the justifiability of the termination under the labor laws and regulations.
From India, Ernakulam
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1Our hospital is a 50-bed charitable hospital. One of our staff nurses was found guilty of medical negligence repeatedly. It was so severe that one night during duty, despite clear instructions from the attending doctor to report any abnormalities in the critical patient's vital signs every 6 hours, the nurse failed to do so. For example, the GRBS was recorded at 208 at 10 pm, and by 6 am, the BP was 200/80, which is dangerously high and abnormal for a patient with a history of angioplasty and receiving Mannitol infusion. However, the nurse did not inform the doctor.
During the handover at 8 am for the next shift, when asked why she did not inform the doctor, she instructed others to do so and then left without providing a full handover to the incoming staff. Subsequently, another patient in the final stage of cancer faced complications. The nurse delegated a trainee to attend to the patient and left to change her uniform, claiming her shift was over.
The trainee had to seek help from another department, and despite efforts from the medical team, the patient passed away. Before leaving, she briefly updated the trainee on the other stable patients and departed for home.
Following these incidents, the management issued a show cause notice. The nurse's response was deemed untruthful, leading to her immediate termination and dismissal from duty.
Please advise on the justifiability of the termination under the labor laws and regulations.
From India, Ernakulam
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Dear Prasanth,
If the incidents narrated were true and could only be related to the particular nurse's willful negligence and dereliction of duty as a responsible member of the paramedical staff in the hospital, despite frequent instructions, it is unbecoming professional conduct on her part for which she could certainly be reprimanded. However, instantaneous termination is not appropriate. She could have been placed under suspension pending inquiry, issued a show-cause notice, and after being given a reasonable opportunity through an independent inquiry, she could have been terminated, as her unbecoming conduct resulted in the death of a patient under her care and brought disrepute to the organization run on a charitable basis.
To me, therefore, although the termination is justifiable, it may not be sustainable in law as no proper procedure was followed.
From India, Salem
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If the incidents narrated were true and could only be related to the particular nurse's willful negligence and dereliction of duty as a responsible member of the paramedical staff in the hospital, despite frequent instructions, it is unbecoming professional conduct on her part for which she could certainly be reprimanded. However, instantaneous termination is not appropriate. She could have been placed under suspension pending inquiry, issued a show-cause notice, and after being given a reasonable opportunity through an independent inquiry, she could have been terminated, as her unbecoming conduct resulted in the death of a patient under her care and brought disrepute to the organization run on a charitable basis.
To me, therefore, although the termination is justifiable, it may not be sustainable in law as no proper procedure was followed.
From India, Salem
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Sir,
We have given her a show cause notice and conducted an inquiry regarding the same. In her reply, we found the matters to be untrue based on our medical records. When asked, she did not cooperate with the management. Hence, the management has decided to terminate her.
From India, Ernakulam
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We have given her a show cause notice and conducted an inquiry regarding the same. In her reply, we found the matters to be untrue based on our medical records. When asked, she did not cooperate with the management. Hence, the management has decided to terminate her.
From India, Ernakulam
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Dear Prasanth,
You have narrated the incident, and as of now, you are holding the on-duty nurse guilty. However, it appears that your company's administration did not focus on the incident as such. The focus was more on the on-duty nurse.
If the GRBS of the patient was recorded at 2200 hours and then 0600 hours on the next day, and at both times the reading was abnormal, then what was the on-duty doctor doing? Why did he/she not check the medical reports of the admitted patients? By the way, do you have on-duty doctors? If yes, then why did the cardiologist not issue instructions to the on-duty doctor but to the nurse? Who is supposed to be more responsible, the on-duty doctor or nurse?
I recommend you conduct the inquiry with a focus on the incident rather than a person. Both the on-duty doctor and nurse are guilty.
Thanks,
Dinesh Divekar
From India, Bangalore
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You have narrated the incident, and as of now, you are holding the on-duty nurse guilty. However, it appears that your company's administration did not focus on the incident as such. The focus was more on the on-duty nurse.
If the GRBS of the patient was recorded at 2200 hours and then 0600 hours on the next day, and at both times the reading was abnormal, then what was the on-duty doctor doing? Why did he/she not check the medical reports of the admitted patients? By the way, do you have on-duty doctors? If yes, then why did the cardiologist not issue instructions to the on-duty doctor but to the nurse? Who is supposed to be more responsible, the on-duty doctor or nurse?
I recommend you conduct the inquiry with a focus on the incident rather than a person. Both the on-duty doctor and nurse are guilty.
Thanks,
Dinesh Divekar
From India, Bangalore
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Dear Colleague,
It is not very clear as to whether the inquiry held by you was a domestic inquiry proper or a mere farce of conducting the same into the alleged charges. The domestic inquiry has become almost like a quasi-judicial process over a period now. The inquiry requires following principles of natural justice, and the proper inquiry procedure would involve issuing the charge sheet, conducting a fair and proper inquiry, giving full opportunity to the delinquent employee, proper recording of the proceedings, and issuing another show-cause notice prior to dismissal seeking reasons as to why the services should not be terminated after the inquiry officer has found the chargesheeted guilty by providing a copy of the findings.
From your post, it appears that you seem to have terminated the services perhaps without following the due procedure, and if the same is challenged in the Labour court, there is a high possibility of it being held illegal. I share the same views of my learned colleagues that there is a legal lacuna in your action of termination done in undue haste and without following due procedure.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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It is not very clear as to whether the inquiry held by you was a domestic inquiry proper or a mere farce of conducting the same into the alleged charges. The domestic inquiry has become almost like a quasi-judicial process over a period now. The inquiry requires following principles of natural justice, and the proper inquiry procedure would involve issuing the charge sheet, conducting a fair and proper inquiry, giving full opportunity to the delinquent employee, proper recording of the proceedings, and issuing another show-cause notice prior to dismissal seeking reasons as to why the services should not be terminated after the inquiry officer has found the chargesheeted guilty by providing a copy of the findings.
From your post, it appears that you seem to have terminated the services perhaps without following the due procedure, and if the same is challenged in the Labour court, there is a high possibility of it being held illegal. I share the same views of my learned colleagues that there is a legal lacuna in your action of termination done in undue haste and without following due procedure.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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If charges are proved and the appropriate punishment of the misconduct is dismissal, punishment is justified. However, it seems that proper procedure for disciplinary action is NOT followed.
From India, Madras
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From India, Madras
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One simply cannot be terminated solely on grounds of misconduct. If one does so, the termination shall be treated as 'illegal'.
In the instant case, the "termination" is illegal because management did not give her a chance to prove that the allegations brought against her are false. It is understood that management had predecided to terminate her. If that was the case, she could have been terminated simply by paying the notice pay (where the notice period is one of the terms of appointment) without issuing a show-cause notice.
From India, Mumbai
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In the instant case, the "termination" is illegal because management did not give her a chance to prove that the allegations brought against her are false. It is understood that management had predecided to terminate her. If that was the case, she could have been terminated simply by paying the notice pay (where the notice period is one of the terms of appointment) without issuing a show-cause notice.
From India, Mumbai
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Dear Colleague,
If termination by serving notice as per the terms of appointment for some misconducts is resorted to, it will be a serious lapse of bypassing the disciplinary procedure. It is bound to be held illegal if challenged in the Labour Court.
Regards,
V.L. Nagarkar
HR Consultant
From India, Mumbai
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If termination by serving notice as per the terms of appointment for some misconducts is resorted to, it will be a serious lapse of bypassing the disciplinary procedure. It is bound to be held illegal if challenged in the Labour Court.
Regards,
V.L. Nagarkar
HR Consultant
From India, Mumbai
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Dear Prabhat,
We had given her a chance to prove her point, but she failed. I myself conducted an investigation in this matter and found that there was medical negligence on the part of the concerned staff, as per the medical records of the patient. This situation could have led to the death of the patient. We followed all the procedures before termination, but only a charge memo was not given to her due to her bad attitude. We also sent her notice pay by AC Payee cheque in the following days by means of registered post.
From India, Ernakulam
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We had given her a chance to prove her point, but she failed. I myself conducted an investigation in this matter and found that there was medical negligence on the part of the concerned staff, as per the medical records of the patient. This situation could have led to the death of the patient. We followed all the procedures before termination, but only a charge memo was not given to her due to her bad attitude. We also sent her notice pay by AC Payee cheque in the following days by means of registered post.
From India, Ernakulam
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Dear colleague,
You have confirmed that your so-called investigation is not a proper domestic enquiry after issuing a proper charge sheet. Your termination suffers from serious legal infirmity and is bound to go against you.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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You have confirmed that your so-called investigation is not a proper domestic enquiry after issuing a proper charge sheet. Your termination suffers from serious legal infirmity and is bound to go against you.
Regards,
Vinayak Nagarkar
HR Consultant
From India, Mumbai
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Thank you. Now, what can we do to make it legal? What about the fault of the concerned staff, which could have taken the life of a patient? Will the management have to rejoin the concerned staff? Please guide me in this regard.
From India, Ernakulam
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From India, Ernakulam
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Dear colleague,
You may do the following:
1. Withdraw the termination letter and ask the person to report for duty.
2. Keep the proper charge sheet cum suspension pending further action ready and issue it on the day of her reporting for duty. Give 48 hours to reply to the charge sheet. Mention that Subsistence Allowance during the pendency of the inquiry will be paid as per law.
3. After 48 hours, issue a letter of inquiry giving the place, date/time of the inquiry, and the name of the inquiry officer.
4. Conduct a legal and proper inquiry until its end by an experienced and legally well-trained person. Your Management Representative also has to be experienced and well-versed in law.
5. After receipt of the Enquiry findings report, issue a show-cause letter as to why her services should not be terminated.
6. Issue the letter of termination.
It is likely that the employee may not report for duty, may refuse to receive any communication, and will not attend the inquiry.
In this case, send all communication by registered A.D. and conduct the inquiry ex-parte.
What I have stated above is a broad outline of the action plan, and you have to take guidance from a local labor lawyer at every stage and every unfolding sequence of events.
Regards,
Vinayak Nagarkar
HR-Consultant
From India, Mumbai
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You may do the following:
1. Withdraw the termination letter and ask the person to report for duty.
2. Keep the proper charge sheet cum suspension pending further action ready and issue it on the day of her reporting for duty. Give 48 hours to reply to the charge sheet. Mention that Subsistence Allowance during the pendency of the inquiry will be paid as per law.
3. After 48 hours, issue a letter of inquiry giving the place, date/time of the inquiry, and the name of the inquiry officer.
4. Conduct a legal and proper inquiry until its end by an experienced and legally well-trained person. Your Management Representative also has to be experienced and well-versed in law.
5. After receipt of the Enquiry findings report, issue a show-cause letter as to why her services should not be terminated.
6. Issue the letter of termination.
It is likely that the employee may not report for duty, may refuse to receive any communication, and will not attend the inquiry.
In this case, send all communication by registered A.D. and conduct the inquiry ex-parte.
What I have stated above is a broad outline of the action plan, and you have to take guidance from a local labor lawyer at every stage and every unfolding sequence of events.
Regards,
Vinayak Nagarkar
HR-Consultant
From India, Mumbai
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Dear Prasanth,
I have my own reservations about the alternative suggested by our learned member, Mr. Vinayak Nagarkar. I am not able to accept that the orders of dismissal already given effect to can be withdrawn only to initiate fresh disciplinary proceedings according to the law and then to terminate her again.
Your reply dated 15-02-2019 contradicts everything you have already mentioned. It seems that you conducted a preliminary investigation and found her reply was contrary to the medical records. I have my doubts about your competency to conduct an investigation into a matter involving professional negligence and medical records. As her alleged negligence caused the death of a patient and another patient's condition is highly critical, you terminated her services orally and subsequently sent her the same with one month's notice pay by post.
If she challenges her termination as illegal, the tribunal will have to determine whether the same is justifiable as well. You can plead before the tribunal to conduct the inquiry and prove that your orders of termination were justifiable in the circumstances of the case.
From India, Salem
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I have my own reservations about the alternative suggested by our learned member, Mr. Vinayak Nagarkar. I am not able to accept that the orders of dismissal already given effect to can be withdrawn only to initiate fresh disciplinary proceedings according to the law and then to terminate her again.
Your reply dated 15-02-2019 contradicts everything you have already mentioned. It seems that you conducted a preliminary investigation and found her reply was contrary to the medical records. I have my doubts about your competency to conduct an investigation into a matter involving professional negligence and medical records. As her alleged negligence caused the death of a patient and another patient's condition is highly critical, you terminated her services orally and subsequently sent her the same with one month's notice pay by post.
If she challenges her termination as illegal, the tribunal will have to determine whether the same is justifiable as well. You can plead before the tribunal to conduct the inquiry and prove that your orders of termination were justifiable in the circumstances of the case.
From India, Salem
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I concur with the views of Mr. Umakantan. Since the dismissal/termination order was served, then wait for the reaction of the employees. The employee would either accept it and move on, or she might raise an industrial dispute before the conciliation officer. If you don't agree to her reinstatement, it will go to the Industrial tribunal before which you can present your case by leading evidence against her.
B. Saikumar HR & Labour Relations Adviser.
From India, Mumbai
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B. Saikumar HR & Labour Relations Adviser.
From India, Mumbai
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Dear Umakantan Sir,
The investigation was not only conducted by me but also by the Nursing Superintendent of the Hospital. My investigation was based on the ground reality, statements from other staff, and records. Whereas the Nursing Superintendent's investigation was based on medical facts, patient medical history, and records.
Thank you.
From India, Ernakulam
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The investigation was not only conducted by me but also by the Nursing Superintendent of the Hospital. My investigation was based on the ground reality, statements from other staff, and records. Whereas the Nursing Superintendent's investigation was based on medical facts, patient medical history, and records.
Thank you.
From India, Ernakulam
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