ED Violence Means Possible Liability Exposure for Hospital
July 1, 2021
Violence is common in the ED, and can lead to legal problems.
“In-hospital injury is an easy target for both plaintiffs’ attorneys and regulatory bodies,” says Daniel Pallin, MD, MPH, an EP, consultant, and former Harvard faculty. “Security guards often default to an argumentative or combative relationship with the patient or visitor.”
Plaintiff attorneys will look at the response to the incident. Hospitals can be criticized for overreacting or underreacting. An example of a “too aggressive” response would be if security guards restrained someone who posed no threat to anyone. If a patient attempts to elope from the ED and is persuaded to return, but is then not put on a security watch, the hospital is legally exposed for not using enough aggression. “In my opinion, protocols often supplant careful, individualized judgment,” Pallin says.
Just because someone has a history of violent behavior, that does not necessarily mean there is a need for aggressive management. “Each case has to be considered according to its unique characteristics,” Pallin says.
Protocols can cause staff to treat all patients the same. “What is needed is good training, careful thought about individual cases, and physician leadership,” Pallin adds.
Caitlin Lentz, JD, an associate attorney at Hamil Little in Augusta, GA, says if one patient injures another, the hospital or ED staff may be held liable under negligence theories (simple negligence, professional negligence, or premise liability).1-4
If the act or omission that “allowed” the patient-on-patient violence is on the hospital staff, then there may be a claim against the hospital for negligent hiring and supervision. “When it comes to patient-on-staff liability, we get more into the regulatory world,” Lentz says.
Specifically, EDs could be hit with violations of OSHA’s workplace safety standards. “There have been huge penalties against hospitals for violence against medical staff,” Lentz notes.
A pending federal bill would direct OSHA to add new standards to protect healthcare and social services workers.5,6 “It depends on the jurisdiction’s laws, but generally there is some duty owed to patients who present to a hospital’s ED,” Lentz explains.
That could be painted as a basic duty, which in some jurisdictions is “measured by the capacity of the patient to provide for his or her own safety,” Lentz says. In other jurisdictions, it may be argued the duty owed was that of a professional to a patient. “What will be looked at is what the hospital and its staff did to perform the duty it owed,” Lentz says.
During litigation, two important questions will arise: How did the hospital keep the patient safe? Was the hospital not doing reasonable things that other hospitals were doing?
Liability also depends on whether the injury of the ED patient was foreseeable. “This is more of a fact-specific issue,” Lentz notes.
To determine this, attorneys will look at factors such as whether the hospital is in an inner city, high-crime area. They also will consider whether there were previous similar incidents in the ED. If so, how did the hospital prevent future incidents? “If the hospital met its duty and there was still an injury, the hospital likely won’t be liable under a negligence theory,” Lentz suggests.
To show the hospital met its duty, the defense can point to some specifics. Perhaps the hospital is doing the same things as other similarly situated hospitals in terms of security, training, policies, and oversight. Facility leaders may have taken steps to prevent the occurrence of violence, if similar incidents occurred before.
Perhaps the hospital hired an outside security company. “In that case, the security company may be liable,” Lentz adds.
REFERENCES
- Freeman v. St. Clare’s Hosp. & Health Ctr., 156 A.D.2d 300, 548 N.Y.S.2d 686, 686 (1989).
- McCreary v. St. Luke’s-Roosevelt Hosp. Ctr., 80 A.D.3d 499, 500, 914 N.Y.S.2d 631 (2011).
- Hicks v. Baptist Hosp., Inc., 676 So. 2d 1019, 1019 (Fla. Dist. Ct. App. 1996).
- Williams v. Bayley Seton Hosp., 112 A.D.3d 917, 918–19, 977 N.Y.S.2d 395, 396–97 (2013).
- Congress.gov. H.R. 1195. Workplace Violence Prevention for Health Care and Social Service Workers Act.
- [No author listed]. House committee passes bill on preventing workplace violence in health care, social services. Safety + Health. April 7, 2021.
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