Legal Exposure for Hospitals if ED Nurses’ Safety Concerns Are Ignored
October 1, 2022 6 minutes read
By Stacey Kusterbeck
In the aftermath of violence in EDs, some nurses alleged long-standing workplace safety concerns went unheeded.1,2 In this scenario, there are multiple regulatory and liability concerns. “Legal exposure is greatest if the employer is aware of the risk and failed to act,” says Gordon Lee Gillespie, PhD, DNP, RN, interim dean at University of Cincinnati College of Nursing.
Kathleen A. McCormac, RN, JD, sees a parallel between the surge in violent behavior in EDs and violent airline passengers, but a striking difference in the legal and regulatory response to that behavior. After alarming incidents of violence against airline employees, action was taken at the federal level.3 “The Senate drafted a federal health and safety protection for airline employees for this exact sort of behavior,” says McCormac, a San Francisco-based nurse attorney.
Federal legislation to provide similar protections against violence in healthcare has been proposed, but not yet enacted.4 Violent airline passengers are put on the No Fly List. In most fields, employees can legally refuse an unsafe work assignment. In contrast, anyone who presents to EDs for care is seen, regardless of previous history of violence — sometimes in the same facility. “But the ED nurse is put in a dilemma. Even if they know the patient is not safe and has been violent before, the nurse can’t refuse to take the assignment,” McCormac says.
If a patient injures an ED nurse, workers’ compensation is the only available remedy in most states. “That in no way fully compensates that person for all of their losses. It’s a stopgap that is no fault,” McCormac says.
Hospitals do face possible OSHA citations for failing to mitigate workplace violence. Those citations are based on the General Duty Clause of the Occupational Safety and Health Act of 1970.5-7 “These citations would provide strength and credibility to claims made by staff against the hospital in court,” Gillespie adds.
As a victim of violence, the ED nurse can file criminal charges with state law enforcement. “State law enforcement would investigate, file reports, and move the case before the district attorney’s office for determination of whether to prosecute through the courts, make an arrest, or provide other outcomes,” says Carolyn Dolan, RN, JD, a professor of nursing at University of South Alabama.
Thirty-one states have enacted felony laws against persons who commit violent acts against nurses.8 “State legal outcomes against the perpetrator do not include direct financial compensation to the nurse, however,” Dolan notes.
Hospitals cannot prevent all ED violence and, legally, would not be held to that impossible standard. “You have to at least show that you are cognizant of it and tried to take reasonable steps,” says John Tafuri, MD, FAAEM, former regional director of emergency medicine at Cleveland Clinic.
Most hospital doors probably are locked at night — except for the ED, where anyone can enter at any time. If an ED has no access to security at night, the hospital could be liable for not taking reasonable measures. “In urban and suburban areas, at least, that is no longer acceptable. And it may not be acceptable in rural areas either,” Tafuri says. “You need to have somebody there to help the staff, because anybody that maybe has a psychiatric illness or some vendetta could walk through that door and do great harm to the staff.”
At Fairview Hospital in Westlake, OH, where Tafuri was a former chief of staff, everyone entering the ED is screened by a metal detector. Security searches bags or places them in lockers outside the department. “That is an unfortunate reality of our time that we have to do that,” Tafuri laments.
As a plaintiff expert, Tafuri reviewed a case in which an ED nurse failed to take reasonable steps, and the hospital paid the price. In that case, the police brought an individual to an ED, stating restraints were needed to prevent violent behavior. The nurse dismissed the concern, and ordered the handcuffs removed. The patient immediately assaulted the officer, who was injured and sued the hospital for negligence. The case settled for an undisclosed amount.
“What do we need to do to secure our department? Just as some crazed person can shoot up a school, they can shoot up an ED, too,” Tafuri says. “It’s so regrettable that we’re at that point, but it’s reality now.”
Years ago, before the ED included metal detectors, a patient shot himself right in front of Tafuri. The bullet went through the patient, ricocheted off the floor, and ended up in the ceiling of the waiting room. In another case, an ED patient was removing his jacket, a gun fell out, and fired a bullet into a wall. If someone had been hurt by those stray bullets, the hospital could have been held vicariously liable for resulting injuries.
Hospitals cannot convincingly claim ED violence was not foreseeable, given the sheer frequency of incidents. Seventy-six percent of 387 ED nurses surveyed said they had experienced one or more incidents of violence at work in the previous year, according to the American Nurses Foundation 2022 Workplace Survey.9 If ED nurses reported all those incidents, attorneys would have ample evidence to argue the hospital should have “recognized” the hazard, Gillespie says.
However, ED violence often goes unreported. Emergency Nurses Association President Jennifer Schmitz, MSN, EMT-P, CEN, CPEN, CNML, FNP-C, NE-BC, encourages nurses to share personal experiences of workplace violence to provide important context for mitigation. “Often, the stories are compelling and demonstrate that those trying to care for their community members are subject to unfathomable experiences at work,” Schmitz says.
Gillespie would like to see ED nurses use the health system’s formal incident reporting system to allow for data collection and risk management analysis. Nurses also can request a formal meeting with the ED director or hospital leaders. “This meeting will serve to formalize notification of leadership that a hazard exists,” Gillespie explains.
If nurses offer specific recommendations, hospitals can use those to implement effective prevention methods. “Workplace violence has been around for decades. Given this, an employer might not know how to mitigate the problem any better than what they are already doing,” Gillespie offers. Still, that does not mean the hospital is legally obligated to follow nurses’ suggestions. For example, it is unrealistic to hire enough security to guard every patient room. “The employer is only obligated to implement a feasible method to mitigate incidents of workplace violence,” Gillespie says.
Hospitals need data on ED violence, but a detailed description of incidents probably is not appropriate for the medical record. “That kind of information is important to include in an incident report, however, because it can support a workers’ comp claim or determine potential liability of the hospital,” Tafuri says.
When violence occurs, there are several key details: Was the ED understaffed at the time of an incident? Was security supposed to be there, but they were not? Did employees request additional staff that was not granted? Did the patient display aggressive behavior previously? “It’s important to document all of the things that led up to the incident, and details on the incident itself,” Tafuri stresses.
Depending on state requirements, an injured ED nurse could file a negligence claim against the hospital for failing to prevent workplace violence. “States like Illinois have recognized that it may be foreseeable that patients may bring weapons into a hospital. Courts will look to the totality of the circumstances to determine if violence was foreseeable,” says Edna McLain, JD, a partner in the Chicago office of SmithAmundsen.
The hospital’s legal exposure expands if there are multiple reported incidents of ED violence and safety concerns went unaddressed. “Hospitals in states with reporting requirements must be aware that such information is likely discoverable,” McLain advises. In McLain’s experience, courts will consider several factors: evidence of specific previous crimes on or near the premises, how recently the conduct occurred, how often the conduct occurred, and how similar the prior incidents were to the current incident. Courts will evaluate all these factors to establish foreseeability of ED violence. “If the conduct was foreseeable, and policies and procedures were either not followed or ignored, the hospital certainly has risk,” McLain warns.
REFERENCES
1. Rieck D, Merrilees A. After hospital stabbing, SSM DePaul nurses say they’ve long called for better security. St. Louis Post-Dispatch. July 13, 2022.
2. Cohen L, Murphy ED. As nurses call attention to emergency room violence, Maine Medical Center steps up support. Portland Press Herald. Feb. 24, 2022.
3. Keithley G. The federal powers to fight back against unruly airline passengers. The Air & Space Lawyer. 2022.
4. Congresswoman Madeleine Dean. Reps. Dean and Bucshon introduce bill to protect healthcare employees. June 7, 2022.
5. U.S. Department of Labor. OSH Act of 1970. 29 USC 654.
6. Wallis L. OSHA gets serious about workplace safety for nurses. Am J Nurs 2015;115:13.
7. Arbury S, Collins NR, Magtahas J, et al. OSHA workplace violence enforcement. J Occup Environ Med 2022;64:e211-e216.
8. Emergency Nurses Association. Workplace violence.
9. American Nurses Foundation. Pulse on the Nation’s Nurses Survey Series: 2022 workplace survey. Aug. 2, 2022.
In the aftermath of violence in EDs, some nurses alleged long-standing workplace safety concerns went unheeded. In this scenario, there are multiple regulatory and liability concerns.
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