A Question of Negligence: What Supervisors Need to Know

Taken from Public Safety Communications Magazine, August 2009
Written by Kelly M. Sharp, co-owner of Workplace Consulting NW. She holds a master's degree in education from the University of Phoenix and a bachelor's degree in communication from Washington State University. She has 15 years experience as a police/fire/medical dispatcher and is a certified training officer for APCO and CJTC.

NOTE: This article is for general information only. Nothing contained herein may be considered legal advise or counsel of any kind.

The word "negligence" is often tossed around in communication centers like a volleyball, but the definition generally refers to the vicarious liability associated with answering 911 calls or dispatching police, fire or EMS. Although many agencies provide extensive training for calltakers and dispatchers on how to prevent accusations of negligence in their day to day job, this may not go far enough. Supervisors and trainers also must be aware of the effects negligent supervision and training can have on an agency and know what they can do to help prevent small issues from turning into public relations nightmares.

In its simplest form, negligence results when a claimant can prove the agency knew, or should have known, that the employee posed a possible risk to the comm center or citizens. In the March 4, 2002, issue of Texas Lawyer, Londa explains that negligence is based on the premise that the agency has a duty to monitor and train employees and can be held liable for poorly trained or poorly monitored employees.

Frontline awareness

Why are supervisors so valuable to the agency? Because the supervisor is aware of what's happening on the frontline. The supervisor is in charge of how the shift is run, provides training and support to ensure policies are followed, and ensures discipline measures are documented. Many administrators rely on their supervisors as the source of information on how employees perform on a daily basis. When an employee makes a mistake -and being human they will - the initial investigation process looks at the past to compare current performance with how the employee was trained and evaluated.

Although determining negligence and the appropriateness of legal action lands squarely in the lawyers' and administrators' turf, supervisors should be aware that there are areas in which they can aid in the agency's defense or possibly prevent a situation from occurring in the first place. For supervisors to be effective in this role, however, they must understand:

1. What to look for in an employee who may be struggling;
2. How to help an employee who is making mistakes; and
3. How to create an environment that encourages communication, training and evaluation.

So how can a supervisor help prevent a lawsuit? They should understand what the courts look for and how their general awareness and attention to the details of communicaton, training and evaluation can be used in the defense.

First, supervisors should be educated on the legalities of negligence. While a law degree is not necessary, a basic understanding of what the courts will look at can enhance a supervisor's perception of how they can help protect both the agency and the employees.

Let's use the following scenario as an example. A caller dials 911 for an ambulance for his elderly mother who is having chest pains. Thirty minutes later, he dials 911 again to ask for an ETA. The second calltaker realizes that the original call was cancelled by mistake prior to dispatch and immediately dispatches rescue; however, the patient dies.

Investigation shows that the agency expects medical calltakers to take medical calls and that chest pains calls are coded for dispatch within 90 seconds. Investigation also finds that the calltaker had not received any training on taking medical calls, and has a history of cancelling calls by mistake. The caller sues the agency for negligent supervision and calltaker training.

In this case, the caller charges that the employee is not only negligent on a personal level, but that the agency is liable because of how it trained and supervised the employee. In other words, if the caller can prove that the agency knew, or should have known, that this situation could happen due to a lack of training or supervision and did nothing to prevent it, the agency can be found negligent.

Some of the questions the courts will look at to determine negligence may include:

• Did the employee injure a third party through an intentional or negligent act? This applies to the person filing the lawsuit. In the case above, can the reporting party show that he was injured because of the employee's behavior?
• Did the action occur during the scope of employment? In the example above, the situation seems fairly cut and dried. The dispatcher was an employee of the agency, worked at the position and acted as a 911 center representative.
• Did the employer allow an unfit employee to stay in the position? Did the agency allow an employee to continue in the position after a problem had been identified? In this case, the calltaker has a history of cancelling calls by mistake and did not have the required training, yet was allowed to answer medical calls.
• Did the employer know, or should have known, the behavior was taking place? Did the agency know, or would a reasonable person assume they should have known, that this situation was a possibility? Was the agency aware that this calltaker was answering medical calls without training? Would a "reasonable person" assume the agency should have known?

Although all of these questions are important for the supervisor to understand, the last one is the most important: Did the employer know, or should have known, the behavior was taking place? This is where supervisors are critical to the negligence prevention process. Supervisors are the eyes and ears of agencies. By being aware of employees' behavior and performance and by providing information to the administration when they see a problem, supervisors can prevent questions regarding what the agency should have known.

Communication within the agency

Often, fellow employees may indicate to supervisors the first sign of trouble. Does the comm center encourage discussion of concerns between supervisors and calltakers or dispatchers? Do the dispatchers believe their concerns are taken seriously and acted upon? In the example above, had other employees complained about the calltaker cancelling call? Had rescue units or dispatchers made complaints in the past about significant delays on medical calls? How had those concerns been addressed?

An environment of open communication may encourage comm center staff to provide the information necessary to intercept problems before they rise to the level of negligence. A word of caution: Staff will watch to see how their concerns are addressed. Accusations or perceptions of "ratting each other out" for punishment, as opposed to an atmosphere perceived to assist employees in finding solution, can backfire on the administration and create a hostile atmosphere.

The agency must also have a communication process in place that allows supervisors to bring their concerns up the chain of command. Whether it is an employee who is struggling or a policy that is not working, supervisors need to feel free to communicate with administrators and know that their concerns are taken seriously. Communication to prevent negligence should focus on correcting questionable behavior and protecting the staff and the citizens.

Policies & Training

Standards for calltaker and dispatch training (e.g, Project 33) are voluntary, so comm centers may offer a wide variety of training. It can range from "Here's the phone; figure it out." to extensive academy and on-the-job training. However, training, no matter how thorough, is an effective defense to a negligence claim only if it is defined, documented and evaluated. Policies must be written that describe what the expectations are, the training required to meet those expectations and the process used to ensure the policies are followed.

To be effective, supervisors should be involved in policy creation; their input stems from watching the people doing the job. Supervisors who are involved in the policy creation process can also answer questions from employees about how the policy came to be and what it was created to address.

Because supervisors are the first line of defense for negligence claims, the agency must ensure they're aware of all training requirements and how training is provided. However, this expectation goes both ways. Supervisors must understand how employees are trained, so they're aware when employees stray from what they have been taught. Using the example above, did the supervisor know that the employee had not been trained to dispatch medical calls? If so, did she/he bring this concern to the administration's attention? Did she/he offer the calltaker additional training, if possible?

In a February 2002 Workforce article, "Training that keeps liability at bay," Flynn discusses how negligence applies when the employer contributed to the injury by failing to train in a way that would have prevented the injury. To be effective, training policies must show how the instruction was delivered and how the dispatcher was evaluated on the knowledge.

In the example above, the agency expected that a call involving chest pains would be coded within 90 seconds of receipt. When questioned, the dispatcher stated she had never been told the call must be coded within a specified amount of time and she had not noticed that she had cancelled it by mistake. Unless the agency can prove the calltaker had been made aware of this policy, the agency has no defense. If, however, the supervisor can prove that training was provided, and documentation existed that showed the calltaker was told not to attempt to process medical calls until she had completed her remedial training, the agency may have a defense against negligence, and the supervisor has saved the day.

Evaluations

The most significant area where supervisors can assist an agency in the question of negligence is in the evaluation process. All employees are going to make the occasional mistake, which puts the supervisor in the position of having to decide how much "importance" to put on the situation. Sometimes a minor or trivial mistake can be used as a training opportunity to review policy or discuss alternate ways of arriving at a conclusion.

That said, when the supervisor is aware of a series of recurring mistakes, she/he must document the situation. Addressing mistakes or complaints immediately is the first step, but follow-up is the crucial part of the puzzle that can defend against a negligence claim. If the supervisor found a problem, was there a documented solution? Was additional training offered and documented? Was there coaching or counseling, a verbal or written warning? Consistent evaluations, disciplinary records and training are all ways supervisors can help an agency defend against negligence claims by showing an awareness of problems and a pattern of corrections taken to prevent questionable behavior.

Supervisors are the first line of defense for both the employees and the agency regarding policy and training issues. If there is a disparity, supervisors should be aware that they may be the first, and possibly only, one to realize it.

However, it's important that supervisors don't feel they're solely responsible for preventing a negligence lawsuit. At the end of the day, legal issues fall squarely on the insurance company and lawyers. Rather, supervisors need to realize they're a valuable part of the process for defending against negligence charges in the workplace, and their knowledge and awareness can prevent small problems from morphing into lawsuits.

Learning about the areas the courts will look at in a negligent supervision or training accusation, how this differs from personal vicarious liability and what action they can take to prevent a small issue from developing into a lawsuit makes the supervisor a valuable part of an agency's proactive defense process.