When a client came to Salvatore Puccio, partner at health care law firm Garfunkel Wild, with concerns about a struggling employee, he didn’t recommend immediate termination. Instead, Puccio advised weekly check-ins.
Before long, those meetings revealed deeper issues.
“Those weekly check-ins turned up more and more problems that we didn’t even know existed,” Puccio said on a recent episode of the Advancing Surgical Care Podcast from the Ambulatory Surgery Center Association (ASCA).
It’s the kind of management that Puccio encourages in his work with ambulatory surgery centers (ASCs). Small issues can snowball into legal ones simply because managers aren’t present or engaged.
“I can’t tell you how many times we hear at an exit interview or in a lawsuit that management just wasn’t present,” Puccio said. “They weren’t on the floor; they weren’t at the surgery center, participating in the day to day activities.”
He encouraged ASC leaders to adopt a proactive approach.
“Lead by example, speak politely to your staff. Check in with them on a routine basis,” he said. “Don’t wait for a problem to come up, to be present and ask what’s going on.”
And objective, metrics-based performance evaluations can support professional development but also to reduce legal risk, he added.
“You can point back to that and show signs where the employee just wasn’t meeting the metrics of what you required,” he said. “It wasn’t about the person’s personality, it wasn’t about who they were, it was about what they were doing.”
Still, sometimes issues escalate anyway.
In those cases, Puccio said it’s critical to act quickly, document thoroughly – and get help if needed.
“These employee issues when they come up, they have to be dealt with immediately and properly,” he said. “Get in touch with those HR reps, because they’re trained to deal with these issues and deal with the investigations. Maybe it’s outside counsel that can help you as well.”
Even common issues like tardiness should be addressed clearly, he added.
“If you don’t do it appropriately, and you terminate that employee because they’re constantly late, I can almost guarantee they’re going to bring a claim against you for some other reason,” Puccio said.
While some situations warrant immediate termination, especially when contracts with providers are involved, most should follow a progressive discipline process, Puccio said.
“Might be a verbal warning, … then we can move it up to a written warning,” he said.
Using performance improvement plans that include specific benchmarks and a check-in period can also help, he said.
“And then you have a couple of the last-resort-type options [that] would be either a suspension, if it’s disciplinary, or termination,” Puccio said.
Puccio also flagged two legal trends surgery centers should monitor closely: RICO lawsuits and web-tracking litigation.
“We’re seeing some surgery centers who are getting named in RICO lawsuits nationwide,” he said. “It’s not necessarily something the surgery center is doing, but because they come up in the medical record, … they get named.”
The second issue involves cases in which plaintiffs claim their personal information was improperly shared through website tools like Meta Pixel or Google Analytics, Puccio said.
“I just got three new cases this week … relating to those two issues,” Puccio said.
