Was a gang member — or victim of domestic violence — brought to your ED, raising the possibility of a violent confrontation? Legal risks for EDs in this scenario are “huge — and interestingly, I think they are least in the facilities that see these patients most often,” says Michael Blaivas, MD, FACEP, professor of medicine at the University of South Carolina School of Medicine and an EP at St. Francis Hospital in Columbus, GA.
Large, urban trauma centers deal with violence all the time, with police and armed security on premises. “Despite frequent threats of violence, it’s often well-controlled,” Blaivas says. “It is the community ED that sees such patients occasionally, but is not at all prepared for them, that is most at risk.”
Blaivas has worked at several community EDs with no police or armed security presence. “The EDs were very light on security measures,” he recalls. “We simply had no way of coping with such situations. Staff sometimes had to hide under desks and wait for police to come.”
Richard C. Boothman, JD, executive director for clinical safety and chief risk officer at the University of Michigan Health System in Ann Arbor, says, “Situational awareness is critical — no matter what label or circumstances we attach to the patient.” Several years ago, a sheriff’s department dropped off a prisoner-patient with leukemia at the ED. “He was six feet, seven inches tall, around 300 pounds, and had been arrested for felonious assault, kidnapping, and attempted murder,” Boothman recalls. The patient needed a month-long hospitalization.
“The sheriff’s department literally released him from custody in an attempt to avoid paying for the healthcare he needed — and thoughtlessly and cynically dropped him on our doorstep without regard to the threat to our staff,” Boothman says.
Boothman succeeded in getting a judge to intervene, “but as it turned out, this patient was the most appreciative and nice guy anyone ever treated.”
Boothman cautions against making assumptions about any ED visitor or patient. “Even gang members deserve care, right? And even meek people can be dangerous,” he says. Domestic situations often involve people who are not normally dangerous, for instance, but are under enormous emotional stress.
“It is much more important to anticipate these situations before they happen, and train staff in proper processes to trigger appropriate resources before situations escalate,” Boothman advises.
‘Reasonable’ Standard
Boothman says EDs would be held to a “reasonable” standard in terms of protecting staff, patients, and visitors. “There are pros and cons to metal detectors,” he notes. “Our health system, for instance, has so many points of entry that it’s not feasible to install metal detectors.”
A patient or visitor harmed by an unpredictable act of violence in a public place such as an ED waiting area likely wouldn’t be successful in suing the hospital. “They probably don’t have much of a case, unless there were reasons to believe that someone was dangerous, and the hospital failed to take reasonable steps to protect its patients, visitors, and staff,” Boothman says.
What would be considered “reasonable” would depend on multiple factors, such as the circumstances of the incident as well as the ED’s location and history with violence. If someone is harmed, Blaivas says the adequacy of security measures taken and the frequency of such incidents in the past will be important factors in determining the ED or hospital’s liability.
“If such incidents have occurred previously, and administration was made aware of — or should have been aware of — the dangers posed to patients and staff, but did not increase security enough, then they are at risk legally in most states,” Blaivas warns. If it was a truly unpredictable incident that had never occurred before at the ED, he says, “it would be a steeper road for the plaintiff to climb arguing that the ED should have had higher security that would have prevented the injury or death.”
Litigation likely would center on timely documentation accurately depicting the incident. “I have seen incidents where there is so much panic, almost no prospective documentation occurs, or is very limited,” Blaivas says.
Retrospective ED documentation is of less value to the defense. “It will look suspicious, like someone finally woke up to the risk, and documented far after the fact,” Blaivas says.
SOURCES
- Michael Blaivas, MD, FACEP, Professor of Medicine, University of South Carolina School of Medicine; EP, St. Francis Hospital, Columbus, GA. Email: [email protected].
- Richard C. Boothman, JD, Executive Director, Clinical Safety, Chief Risk Officer, University of Michigan Health System, Ann Arbor. Phone: (734) 764-4188. Fax: (734) 936-9406. Email: [email protected].
“Even meek people can be dangerous,” says one expert.
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