In May 2014, a man entered a Utah ED waiting room, pulled out two guns, and demanded to see a doctor, saying, “Someone is going to die today.”
“This patient was shot four times by law enforcement staff that happened to be on site for something unrelated,” says Thomas A. Smith, CHPA, CPP, president of Chapel Hill, NC-based Healthcare Security Consultants.1
According to a recent study, almost 75% of workplace assaults occur in a healthcare setting — and the violence disproportionately affects ED staff.2 Some key findings:
- Nearly eight in 10 EPs nationwide reported being the target of physical violence over the past year.
- One hundred percent of ED nurses reported verbal assault, and more than 80% reported physical assault.
Another recent study found that 66% of emergency medicine residents at New York City hospitals reported experiencing at least one act of physical violence during an ED shift.3
Tom Aumack, CHPA, HSS Inc. security program manager at Cheyenne (WY) Regional Medical Center, is aware of more than 40 weapons discharge incidents that occurred in or on healthcare property in the United States in 2016, including 24 deaths and 15 injuries. These incidents include suicide, accidental discharge of firearms, and law enforcement, security, or corrections officers discharging weapons.
“I have noted a significant number of firearms discharges occur in or near EDs, which is consistent with other research on the subject,” says Aumack, who authored a recent paper noting that 31% of 416 documented hospital firearms discharges from 2006 through mid-December 2016 occurred in or near the ED.4
Recent incidents have included prisoners who escaped using officers’ weapons, and altercations in which staff, security officers, or visitors have been injured. Smith says liability in these cases can be reduced if hospitals have “reasonable and appropriate” security measures in place. He says these factors contribute to increased ED violence:
- Increased wait times and acuity.
- Unrestricted movement of the public. Many hospitals allow “open visitation,” which means guests can visit any time of the day or night. “Some facilities are taking this to mean no limits on who or when persons may enter their facilities,” Smith says.
- Fewer inpatient mental health beds.
Underfunded community mental health outpatient programs mean many mental health patients go without care. These individuals often end up in the criminal justice system — or the ED, Smith notes.
In addition, many acute and chronic mentally ill patients are released from hospitals without follow-up care. “There is increasing use of hospitals by police and the criminal justice system for the care of acutely disturbed, violent individuals or as an alternative to already overcrowded jails,” Smith explains.
Defeat Negligence Claim
EDs see a “dramatic increase in violence due to multiple complex factors,” says Richard F. Cahill, Esq., vice president and associate general counsel at Napa, CA-based The Doctors Company. Assaults and physical altercations involving patients, family members, and other visitors expose ED groups and hospitals to significant civil liability.
Compounding the risks is the fact that all individuals presenting to EDs must be evaluated in accordance with the Emergency Medical Treatment and Labor Act (EMTALA), “including violent criminals, psychologically disturbed individuals, and agitated persons seeking emergency treatment for whatever reason,” Cahill says.
Do hospital and ED groups risk civil liability for injury to staff trying to comply with their professional obligations under EMTALA? “Even in the face of violence, threats, or criminal acts, ED staff are nonetheless required to conduct the same medical screening examination, as well as the subsequent necessary stabilization,” Cahill says.
Patients injured in the ED during an altercation may decide to sue the hospital. “An injured patient may also name the group or hospital on a theory of ostensible agency or vicarious liability,” Cahill notes.5
But what if an ED employee is the one harmed during a violent incident involving an ED patient? The employee subsequently may pursue a civil action directly against the perpetrator for whatever injuries are sustained, based on a cause of action for battery. “Depending upon the jurisdiction, his or her claim may have to be pursued against the employer only through the state’s workers’ compensation system under the theory of exclusive remedy,” Cahill notes.
The injured ED employee may be permitted to pursue a separate general negligence action against the owner of the facility or the medical group, whichever is not his or her employer. “A cause of action of this nature might allege, depending upon the circumstances, that the defendant entity improperly failed to develop protocols designed to promote the safety of patients, professional staff, and other third parties,” Cahill says.
Expert witnesses would be retained to establish what other similarly situated EDs have implemented in anticipation of similar types of events. For instance, the plaintiff’s expert might testify that:
- policies and procedures ordinarily would include a description of appropriate courses of action in response to specific types of violent or combative encounters, as well as the necessary chain of command to be consulted;
- had policies and procedures of this nature been drafted and followed, the incident probably would have been avoided, or the nature and extent of the employee’s injuries would have been minimized;
- alternatively, policies consistent with the community standard had, in fact, been approved by the medical executive committee but that they were not followed routinely, including in this specific instance;
- had ED staff complied with the required procedures, the injuries sustained by the plaintiff-employee would not have occurred.
Cahill says hospitals operating EDs, and medical groups staffing them, should draft, implement, and periodically verify the use of appropriate protocols.
“In the event of litigation, this will help to demonstrate to the trier of fact that the entity did whatever was dictated by the community standard in order to defeat a claim of negligence,” Cahill says.
REFERENCES
- Feelright W. Police release video footage of Cache Valley Hospital Shooting. Cache Valley Daily, July 23, 2014. Available at: http://bit.ly/2n6iC1h.
- Phillips JP. Workplace violence against healthcare workers in the United States. N Engl J Med 2016;374:1661-1669.
- Schnapp BH, Slovis BH, Shah AD, et al. Workplace violence and harassment against emergency medicine residents. West J Emerg Med 2016;17:567-573.
- Aumack T, York T, Eyestone K. Firearms discharges in hospitals: An examination of the data from 2006-2016. J Healthc Prot Manage 2017;33.
- Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448.
SOURCES
- Tom Aumack, CHPA, HSS Security Program Manager, Cheyenne (WY) Regional Medical Center. Phone: (307) 996-4522. Email: [email protected].
- Richard F. Cahill, Esq., Vice President & Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368, ext. 4202. Fax: (707) 226-0370. Email: [email protected].
- Thomas A. Smith, CHPA, CPP, President, Healthcare Security Consultants, Chapel Hill, NC. Phone: (919) 438-0116. Email: [email protected].
RESOURCE
- The International Association for Healthcare Security and Safety’s Guidelines for “Security in the Emergency Care Setting” and “Emergency Management, Active Shooter” can be accessed at: http://bit.ly/2lwibAV.
Assaults occur disproportionately in EDs.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content