Legal Review & Commentary
Inadequate security: $3.4 million TX award
News: After completing her hospital shift, a nurse walked by herself to the parking garage where she was raped. The nurse’s total award was $3.4 million. The hospital’s security contractors were held liable for one-third of the amount.
Background: On most nights, the 55-year-old nurse finished her 3 p.m to 11 p.m. shift on time. But on the evening of March 7, 1997, she did not clock out until 1:41 a.m. She usually left with others from the shift, passing a security guard on the first level of the hospital’s parking garage, and then to the employee parking area on the fourth floor. On this particular evening, she did not use the hospital’s escort service and she did not see the security guard. Instead she encountered a man who cut her with a box-cutting knife, beat her, then raped her.
Despite her screams for help, none of the security personnel were close enough to hear. After the assault, the nurse got into her car and drove through the garage to the hospital’s emergency room.
The nurse sustained multiple facial lacerations, which eventually necessitated reconstructive surgery. She was permanently disfigured by scarring. In addition, seven tendons were severed in her dominant right wrist and, despite being surgically reattached, she permanently lost full use of her right wrist. Her treating physician indicated at trial that she will require long-term treatment for depression and post-traumatic stress disorder.
Because the nurse had received worker’s compensation benefits from the hospital, she was statutorily barred from seeking additional damages from the hospital in accordance with the laws of the jurisdiction. The hospital’s security services, however, were provided under contract with a company managed and owned by another company. The plaintiffs pressed their claim against them, saying the security staff had stopped covering that part of the garage at 1:50 a.m., when staff were supposed to patrol until at least 2 a.m.
The contractors unsuccessfully argued that the guard was on duty in another part of the garage. The defendants argued that the nurse did not use the escort service, electing to go to her car alone.
The security contractors filed a third-party action against the rapist, contending the rape and assault incident were solely his responsibility. The rapist is serving a sentence for his criminal conduct in this case.
Prior to trial, the security company offered the plaintiffs $200,000, which was rejected.
The jury divided negligence into these parts: contractor 26%, company that owned contractor 8%, the rapist 51%, and the nurse 15%. The gross award of $3.4 million was apportioned as $1.25 million for past pain and suffering, disfigurement, and physical impairment; $1.1 million for future pain and suffering, distress due disfigurement, and physical impairment; $120,000 for lost wages; $175,000 for future lost wages; $270,000 for past disfigurement; and $50,000 for past and future direct medical expenses.
In addition, her husband was awarded loss of consortium damages of $425,000.
What this means to you: This case illustrates how risk management interacts with other hospital departments, such as security and human resources. The International Association for Healthcare Security and Safety reports an average of 47 sexual assaults every nine years in the United States.
"Undoubtedly, a situation such as this is a security director’s worst nightmare . . . a violent sex crime on your premises, an employee, and contract providers. Unfortunately, sexual assaults do happen at health care facilities and must be considered when security management plans are developed," states Paul Ford, director of safety, security, and transportation at Tampa (FL) General HealthCare.
"First and foremost, whether security services are contracted out or handled internally, the goal of any hospital security department should be the assurance to staff, patients, and visitors that the hospital is a safe environment. The irony of violent crimes occurring at health care facilities is unfortunately not lost on those with criminal intent, and it is security’s responsibility to maintain vigilance against such persons. And, since most hospitals are open for business 24 hours a day, seven days a week, every day of the year, that need for vigilance is ever present and extends from internal hot spots like the emergency room to external sites such as the parking garage," notes Ford.
"When key services are contracted out, it is generally still the institution’s responsibility to make sure that those services are operated with the facility’s goals and objectives in mind, whether it is with agency nurses, food services, cleaning or security. In this particular instance, the hospital could not be a named party due to workers’ compensation statutes. But the hospital still had to deal with the impact the incident had upon the employee, her co-workers, medical staff, and everyone else in the community who used the hospital. Contracting of services has become a cost-savings mechanism for many health institutions. However, the contract must specify what is expected from the contractor. It is critical for hospital personnel to provide oversight and auditing of any contracted service. For instance, local crime rates, current law enforcement warnings, and staff perception must be monitored to adjust manpower and assignments. If security is contracted out, the flexibility to adjust for these factors should be included in the contract. Further, when dealing with contracts that have potential risk management repercussions, risk management should be involved in reviewing the contract to minimize exposure," adds Ford.
"Employees, patients, physicians, and visitors expect the premises to be safe. To ensure continued safety, security directors should review their facility’s security management plan on an annual basis. That review should include the involvement of other departments to the extent that they are affected by any of the provisions of the plan. Specifically, parking garages produce their own vulnerabilities. Patrols, closed-circuit television cameras, emergency phones, and lighting can be used to reduce security problems.
"The particular needs of each garage should be assessed after review of past incidents, staff perceptions, the neighborhood, hours of operation, and budget constraints. A 24-hour operation requires 24 hours of security, though some hours are busier than others. Many hospitals have instituted buddy systems and/or escort services for late-shift personnel. While escorts may be a security function, their use should be encouraged by both human resources and risk management. Escorts, like most security activities, are preventive and much more cost effective than dealing with the consequences," concludes Ford.
Susan Elizabeth Lucas and Billy Lee Lucas v. Silver Star Security Inc., f.k.a. Top Gun Security Inc. and Unique Services Inc. v. Charlie Harbert III (Third-Party Defendant), Tarrant County (TX) District Court, Case No. 17-175955-98.
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