Not reporting gun wound draws fire for hospital
A hospital in New York is at the center of a storm of criticism, bad publicity, and possible criminal charges after an employee failed to report the gunshot wound of NFL star Plaxico Burress, as required by law.
New York Presbyterian Hospital spokeswoman Kathy Robinson issued a statement soon after the incident, saying the employee has been suspended. (The hospital did not identify the employee or his or her position.) Burress had gone to the hospital after accidentally shooting himself with a gun that police say he took into a crowded New York nightclub. Burress shot himself in the thigh. He was treated and released from the hospital that night.
Hospitals must report all gunshot wounds
Hospitals in most jurisdictions are required to report all gunshot wounds to the police, but the unnamed employee at New York Presbyterian Hospital did not do so and now the hospital is finding out just how serious the authorities take that requirement. The district attorney's office reports that the hospital is under investigation, and even the mayor of New York City is calling for the hospital to be punished. The hospital spokeswoman says New York Presbyterian is investigating the incident and promised to cooperate with authorities. Robinson acknowledged that "not reporting a gunshot wound is a clear violation of our policies and procedures."
The 31-year-old football player faces two counts of criminal possession of a weapon in the second degree and could face up to 15 years in prison, according to the Manhattan district attorney's office. New York Mayor Michael Bloomberg, who has long fought against handguns and illegal firearms in the city, had harsh words for both Burress and the hospital, saying the NFL star should be prosecuted to the fullest extent of the law for possessing an illegal firearm.
But the mayor was just as angry at New York Presbyterian Hospital for failing to inform police about the incident. The police learned about the incident from a TV report, Bloomberg said and added that the state attorney general should "go after" the hospital for a "chargeable offense." Noting that the law requiring notification of police is essential to detecting and prosecuting crimes with firearms, Bloomberg said officials at New York Presbyterian "didn't do what they're legally required to do."
"It's a misdemeanor," he said of the hospital's failure to report the gunshot wound. "It's a chargeable offense, and I think that the district attorney should certainly go after the management of this hospital."
Bloomberg added that the hospital should fire the staff responsible for reporting the gunshot wound.
"I would question why the management didn't have training in place and didn't discipline them immediately. It's just an outrage," he said at a news conference.
Compliance training questioned
Patrick Egan, JD, a partner in the health law practice group of the law firm of Fox Rothschild in Philadelphia, says incidents such as the failure to properly report the Burress shooting happen for one of two reasons.
"Either the institution has failed to provide thorough compliance education and disseminate information to its staff, or a rogue employee has ignored clearly stated institutional standards," he says. "The hospital appears to be attempting to get out in front of the story by disciplining the employee. It remains to be seen, however, if the hospital had a meaningful compliance program in place and had adequately trained its staff regarding the underlying issue."
If there is a well-documented compliance initiative that concretely demonstrates to employees the hospital's strong commitment to responsible conduct and identifies criminal and unethical conduct, the hospital's reputation will be upheld, and it will not suffer legal repercussions," Egan predicts.
"If not, the employee could use the failure of the institution to provide adequate training as a basis for seeking reinstatement, and the hospital will end up with egg on its face," he says.
Steven A. Eisenberg, JD, a partner with the law firm of Baker Hostetler in Cleveland, also says that a failing like that typically occurs because of an insufficient awareness of the disclosure requirements
"But it also can be an employee or physician trying to cover something up," he says. "When you have an employee or physician who doesn't follow rules and requirements, there needs to be a process to take action against the employee or physician."
The potential legal repercussions for the institution will depend on whether there is a pattern of this behavior, Eisenberg says. If there is, there may be institutional culpability. If not, and the institution acts against the individuals who committed the wrongdoing, it is more likely that only the individuals would have legal repercussions, he says.
"Of course, when there is such a high-profile case, things tend to take strange turns," he says.
The patient's celebrity almost certainly was at the root of the failure to report the injury, suggests Patrick J. Hurd, JD, senior counsel in the tort defense group at the law firm of LeClairRyan, based in the firm's Norfolk, VA, office. But that doesn't mean that the same problem doesn't occur with everyday patients.
"While some hospital staff may succumb to idol worship and refrain from contacting law enforcement, a more frequent problem is confusion over the privacy and disclosure provisions of the Health Information Portability and Accountability Act [HIPAA]," he says. "Licensed health professionals in most states can be charged with a misdemeanor for failing to report injuries associated with certain weapons, including guns. Should the person pulling the trigger remain at large due to the failure to report and others suffer injury as a result, one might argue that the hospital and its staff are liable for such injuries."
Hurd says hospital risk managers can prevent such failings by educating physicians and staff on their obligations to report such injuries. Equally important, he says, is spending adequate time teaching what can be disclosed under HIPAA and to whom. "Myth must be replaced with reality," he says.
Celebrities complicate matters
Martin Kalish, MD, JD, a partner with the law firm of Arnstein & Lehr in Miami, notes that New York state law is quite specific regarding the reporting of bullet wounds. A physician is required to report any bullet wound he or she treats, and in a hospital setting, the report is made by the person in charge. Failure to make a report to the police is a Class A misdemeanor. Additionally, the Legal Manual for New York Physicians states that all treating physicians must report a bullet wound to the police and references the penal law.
"New York state law does have a physician-patient privilege," Kalish says. "However, it would appear that the reporting obligation for bullet wounds would trump this privilege similar to obligations to report certain communicable diseases."
Risk managers must ensure that the physicians working in EDs (or any other facility) that are likely to treat victims of bullet wounds are aware of their obligations and understand how their reporting obligations are to be handled. For instance, they should know if they are expected to make the report directly to the police, or to the department administrator, or fill out a specific form. Hospitals must have in place procedures and protocols explicitly dealing with their legal obligations.
Celebrity patients can throw a monkey wrench into the system, he says. Staff and physicians may be star-struck and are willing to extend a favor to the celebrity, clearly a violation of law and hospital policy, but that is not the only way the system can fail. The physician or staff member may have the best intentions but become flummoxed about how to protect the celebrity's privacy, comply with HIPAA, and still report the injury. Hospitals have come under fire recently for not protecting the privacy of celebrity patients, Kalish notes.
"Unfortunately, when faced with a celebrity patient, steps can be missed either intentionally or unintentionally," he says. "Especially in a facility in a location that may see celebrities, procedures should be in place to deal with this eventuality both to protect the privacy of the individual and to insure that the facility treats this individual in the same manner as any other patient with respect to all aspects of the law."
Kalish notes that the failure of a physician to comply with reporting obligations can result in discipline by the hospital, the state licensing board, and by the policing authorities. The results of these investigations could conceivably have various untoward effects on a physicians' ability to continue certain insurance contracts and perhaps continued participation in the Medicare and Medicaid programs.
"The failure of the hospital to comply with its reporting obligations could result in investigation and possible discipline by the state licensing authority and by the police," he says. "The adverse publicity generated will not be particularly helpful, and the expenses incurred in legal fees are rather wasteful when compliance would have been a lot simpler."
Sources
For more information on the duty to report gunshot injuries, contact:
Patrick Egan, JD, Partner, Health Law Practice Group, Fox Rothschild, Philadelphia. Telephone: (215) 299-2825. E-mail: [email protected].
Steven A. Eisenberg, JD, Partner, Baker Hostetler, Cleveland. Telephone: (216) 861-7903. E-mail: [email protected].
Patrick J. Hurd, JD, Senior Counsel, Tort Defense Group, LeClairRyan, Norfolk, VA. Telephone: (757) 441-8931. E-mail: [email protected].
Martin Kalish, MD, JD, Arnstein & Lehr, Miami. Telephone: (305) 357-3478.
A hospital in New York is at the center of a storm of criticism, bad publicity, and possible criminal charges after an employee failed to report the gunshot wound of NFL star Plaxico Burress, as required by law.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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