Dear Sirs, Our is a 50 bed charitable Hospital. one of our staff nurse was found of medical negligence repeatedly. it was so bad that one day during night duty, with clear instruction from the concern Doctor that to inform any abnormality in patients vital reading very 6 hourly bases of a critical patient. During the investigation the GRBS was recorded at 208 at 10 pm and in morning 6 am the BP was 200/80 which is high and abnormal for a patient with a medical history of Angio plasty and receiving Injection Manitol infusion. and did not inform the Doctor.
During the next shift duty handover at 8am the other staff asked why she didnot informed, she ask them to inform the Doctor. Then immediately the doctor was informed and necessary medical care was given, if not the patient could have died. During this time another patient with CS (Cancer last stage) developed difficulties, at that time she sent a trainee staff to attend the patient and went to change her uniform by saying her duty time is over without giving full hand over to next shift staff.
The trainee staff had to asked for help from other block, then the doctors and staff tried their best to save the patients life, Unfortunately the patients died. Mean while she called the trainee staff near the dead patients door and said rest all patient are stable and gave a oral handover and when home.
Due to this behavior the Management gave a showcause notice regarding the incident. latter her reply was found untrue and management was forced to terminate her at once. and asked to leave the duty at once.
Please let me know whether the termination is justifiable or not as per labour Act and rules.
8th February 2019 From India, Ernakulam
Dear Prasanth,
If the incidents narrated were true and could only be related to the particular Nurse's willful negligence and dereliction from duty as a responsible member of paramedical staff in the hospital despite the frequent instructions, it is an unbecoming professional conduct on her part for which certainly she could be pulled up. But instantaneous termination is not proper. She could have been placed under suspension pending inquiry, issued a show-cause notice, after giving reasonable opportunity by means of an independent inquiry, she could have been terminated as her unbecoming conduct resulted in the death of patient under her care and brought disrepute to the organization run on charitable line.
To me, therefore, though the termination is justifiable, it would not be sustainable in law as no proper procedure was followed.
8th February 2019 From India, Salem
We have given her Showcause notice and we had conducted an inquiry regrading the same. In her reply we found the matters untrue as per our medical records. When asked for she did not cooperated with the management. Hence the management decides to terminate her.
9th February 2019 From India, Ernakulam
Dear Prasanth,
You have narrated the incident and as of now, you are holding 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 the time if the reading was abnormal then what on-duty doctor was doing? Why he/she did not check the medical reports of the admitted patients?
By the way, do you have on-duty doctors? If yes, then why the cardiologist did not issue the instructions to the on-duty doctor but to the nurse? Who is supposed to be a more responsible, on-duty doctor or nurse?
I recommend you re-conducting the enquiry with a focus on an incident rather than a person. On-duty doctor and nurse both are guilty.
Dinesh Divekar
9th February 2019 From India, Bangalore
Dear Colleague
It is not very clear as to whether the enquiry held by you was domestic enquiry proper or mere farce of conducting the same into the alleged charges.
The domestic enquiry has become almost like quasi - judicial over a period now. The enquiry requires following principles of natural justice and the proper enquiry procedure would involve issuing the charge sheet, conducting fair and proper enquiry, 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 enquiry officer has found the chargesheeted guilty by giving 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 high possibility of its being held illegal .
I share the same views of my learned colleagues that there is legal lacuna in your action of termination done in undue haste and without following due procedure.
Vinayak Nagarkar
HR- Consultant
9th February 2019 From India, Mumbai
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.
10th February 2019 From India, Madras
One simply can not be terminated simply ground of miscdonduct. If does so, the termination shall be treated as 'illegal'.
In the instant case the "termination" is illegal because management did not give her chance to prove the allegations are brought aginst 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 notice period is one of the terms of appoinment) without issuing show cause notice.
13th February 2019 From India, Mumbai
Dear Colleague,
If termination by serving notice as per terms of appointment for some misconducts is resorted to, will be serious lapse of bypassing disciplinary procedure. It is bound to be held illegal if challenged in the Labour Court.
HR- Consultant
13th February 2019 From India, Mumbai
Dear Prabhat
We had given her chance to prove her point but she failed. I myself had conducted an investigation in this matter and found that there is a medical negligence on the part of the concern staff as per medical records of the patient. This situation could have lead to the death of the patient. We followed all the procedure before termination but only charge memo was not given to her as her attitude was very bad. We also sent her notice pay by A/c Payee cheque in the following days by means of registered Post.
15th February 2019 From India, Ernakulam
Dear colleague,
You have confirmed that your so called investigation is not proper domestic enquiry after issuing of proper charge sheet .
Your termination suffers from serious legal infirmity and is bound to go against you.
Vinayak Nagarkar
HR- Consultant
15th February 2019 From India, Mumbai
Thank you. Now what can we do to make it legal. What about the fault of the concern staff, which could have taken the life of a patient. will the management will have to rejoin the concern staff? Please guide me in this regard.
16th February 2019 From India, Ernakulam
Dear colleague,
You may do the following:
1. Withdraw the termination letter and ask the person to report for duty.
2 keep 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 enquiry will be paid as per law.
3 After 48/hours issue letter of enquiry giving place , date/time of the enquiry and the name of the enquiry officer.
4 Conduct legal and proper enquiry till its end by experienced and legally well trained person . Your Management Representative also has to be experienced and well versed in law.
4. After receipt of the Enquiry findings report issue show cause letter as to why her services should not be terminated.
5 Issue the letter of termination.
It is likely that the employee may not report for duty, may refuse to receive any communication , will not attend enquiry.
In this case, send all communication by registered a.d and conduct the enquiry ex- parte
What I have stated above is broad outline of the action plan and you have to take guidance from local labour lawyer at every stage and every unfolding sequence of events.
Vinayak Nagarkar
HR- Consutant
16th February 2019 From India, Mumbai
Dear Prasanth,
I have my own reservation 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 law and then to terminate her again.
Your reply dated 15-02-2019 contradicts every thing 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 own doubt in your competency to hold 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 highly critical you terminated her services orally and subsequently sent her the same with one month's notice pay by post.
If she agitates her termination as illegal, the tribunal will have to see whether the same is justifiable too. You can plead before the tribunal to conduct the inquiry before the tribunal and prove that your orders of termination was justifiable in the circumstances of the case.
16th February 2019 From India, Salem
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 conciliation officer and if you don't agree for her reinstatement, it will go to Industrial tribunal before which you can make out your case by leading evidence against her.
HR & Labour Relations Adviser.
18th February 2019 From India, Mumbai
Dear Umakantan Sir,
The Investigation was not only conducted by me but also by Nursing Superintendent of the Hospital. My investigation was based on the ground reality, statements form other staffs and records. Where as Nursing Superintendent investigation was on the bases of Medical facts and patient medical history and records.
21st February 2019 From India, Ernakulam
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