Holiday Season Liability Issues for Medical Practices

November 11, 2014

The holiday season presents recurring non-malpractice risks for doctors and their practices that can have serious legal consequences.

I fully support you taking this time to thank your staff and celebrate the year's achievements and your joint success. It's also a time that can generate liability issues related to the party you throw, and the safety and behavior of your employees.

I've previously covered this issue in detail but it bears renewed coverage and some additional warnings, as I've had to deal with this exposure for a variety of business owners every year for over a decade. I've asked you be wary of seven specific issues like controlling alcohol service, making the party an optional event, carefully considering the venue, and setting the tone by having a leader or authority figure in attendance. Here are some other issues to consider:

• Transportation. I'm not going to debate alcohol service here; it's simply a cultural fact that many people include alcohol in a holiday celebration. It is also one which many Americans, rightly or wrongly, include in their appraisal of being a "good host." If you are having a party that includes alcohol service consider offering transportation that those may need it.

Think of it this way - giving 10 employees a $50 Uber ride home costs less than the cost of two hours consultation with a good litigation attorney, if something bad happens.

• Cultural and religious sensitivity. I'm not going to go as far some lawyers and say you have to call your Christmas party a "holiday party," but you should be aware of the cultural and religious sensitivities of all your guests. This means avoiding overtly religious themes or activities that may be perceived to be "hostile," "discriminatory," or "exclusionary," all terms you'll become familiar with in an employment-related lawsuit.

We are also at a time that is politically and socially charged, so be aware of these issues and sensitivities, and shut down anyone who wants to make this a "soap box" opportunity - it's no more appropriate at the holiday party than it is at the office.

• Office conduct rules still apply. Yes, it's a party, but it's a work party. A good rule of thumb is to assume that you, as the boss, will personally be held liable for anything that goes wrong, or is even perceived to be wrong. This means that the professional decorum, conduct, and behavior rules you expect at work apply to a business event too. So let your staff know that this is the case and all the same rules and penalties apply to their conduct. "Mad Men" style company parties are only for TV.

If you have employees that may wear inappropriate attire consider a dress code that maintains a relaxed, but appropriate environment, and avoid activities that could get out of hand.

Here are some real examples of bad judgment and poor supervision:

• Mistletoe, we've seen it hung up, on sweaters, belt buckles (yes really), and just about every other place you can imagine. Just skip it.

• Naughty games including the "hysterical" white elephant gift exchange, so popular in offices across the U.S. The game is fine if you remind employees that the gifts, although intentionally horrible, must still be office-appropriate. We've seen reports of adult toys, edible clothing, and naughty animated Santas and Elves that make lewd remarks, not to mention one doctor that dressed up as Santa and had all the guests sit on his lap.

• Avoid activities that leave out disabled or differently abled employees, like rock gyms, parachuting, and other activities that combine an opportunity for injury with a "company event."

• Finally, if possible, hold it offsite. If you can't, be aware that you need to observe all the usual premises liability issues I've outlined before and consider checking what is and is not covered by your liability insurance policies.

Again, making sure that employees know that the party is a voluntary, non-paid social event is a key part of mitigating your risk. Many experts suggest that inviting spouses and avoiding work-related talk, including awards, is a great way to "prove up" the social nature of the event. Spouses and significant others also tend to cut down on opportunities for sexual harassment/misconduct-type issues.