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Is your ED liable for patients' violent actions?
Consequences "severe" for failing to assess, document risks
If a man was discharged from your ED after being treated for injuries resulting from a fistfight, the ED record might state that the patient agreed to go into an anger management program and that he was given a referral to outpatient therapy. But most likely, it would neither document whether the patient had access to a gun nor other factors indicating that the potential for violence was assessed by ED staff.
Assessment of risk factors for violence such as gun access, gang affiliation, and history of police contact were not adequately documented for patients seen in a pediatric psychiatric ED, according to a recent study.1
If the above patient went home, got a gun, and shot the person he was initially aggressive toward, the ED could potentially be held liable, says Jon T. Gatto, a health care attorney with Buchanan Ingersoll & Rooney's Tampa, FL office.
"An emergency department should be very careful to take appropriate steps to document and prevent violence by patients, as a failure to recognize violent propensities can lead to liability for negligence," says Gatto.
While documentation of a thorough assessment can't fully protect you against a lawsuit, it can help to mitigate the ED's liability, says Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center. "If it were documented that the patient did not have access to a gun, that would likely help," she says.
Does the patient have a gun?
How much documentation is needed depends on the patient's presentation and chief complaint, says Marisa A. Giggie, MD, the above study's lead author and a psychiatrist at Taylor Hardin Secure Medical Facility in Tuscaloosa, AL.
"Obviously, if someone comes in suicidal, one must assess suicide risk. I argue that this should include an assessment of weapon access, given that guns are the most common form of completed suicide in adolescents," says Giggie.
One lawsuit involved an ED patient who threatened suicide and was then cleared through the psychiatric system, but completed the suicide later after new stressors occurred. "The ED was sued, though the case was later dropped," says Schneider.
At a minimum, Giggie advises that your documentation for patients coming to the ED as a result of a violent incident should include the following four things.
She gives the following scenario: A child comes to the ED threatening to shoot someone, but there is no documentation of whether the child has access to a weapon or whether an attempt was made to have the police or family secure the weapon, if one is available. "If the kid leaves the ED and shoots someone, then I think the ED could potentially get into legal trouble," says Giggie.
Since many violent patients have a history of violence, some EDs use a flagging system in the chart or a card system to warn the next provider of the potential for violence. "This system often is very helpful and necessary for patient safety, but may be frowned upon by legal groups who may suggest differential treatment based upon past infractions," says Schneider.
Similar concerns are raised with screening patients for violence. Ideally, your ED's screen is simply part of the chart, similar to the way many EDs screen patients for domestic violence, says Schneider. "The best thing is to screen everyone, with an equal screen," says Schneider. "If all women are asked the same questions about domestic violence, or all psychiatric patients asked about violence, there can be no question of discrimination or prejudice."
Sometimes ED staff do screen for violence in patients with psychiatric complaints, but the patient's response isn't documented. "The problem is they don't document the negatives, as this study shows. Therefore, if there is no mention of guns, we are not sure if there are no guns or if no one asked," says Schneider. "A checklist would be helpful."
Consider risk factors
When determining what to document for a potentially violent patient, consider these risk factors for violence, says Gatto:
Take appropriate action
Failure to recognize and properly stabilize a potentially violent patient can lead to negligence liability, says Gatto. "Where the violent propensities of a patient are properly documented and recognized, the ED can respond with appropriate physical restraints, pharmacological restraints, or security measures," he says. "If violent propensities are not properly documented and recognized, it can lead to liability in favor of other patients or hospital employees against the hospital."
The critical question in assessing whether a hospital is liable for a violent patient's behavior is whether the hospital "knew or should have known" of the likelihood of violence, says Gatto.
By making the correct inquiries and appropriately documenting those inquiries, the ED can help dispel any notion that it "should have known" about the patient's propensity for violence, Gatto says.
Examples of poor documentation practices that can lead to liability include the following:
"Any of these omissions can lead to a potentially violent patient causing harm to others, for which the hospital may be liable," says Gatto.
Scenarios in which violent acts are carried out can be avoided or ameliorated through appropriate documentation and response, adds Gatto. "A failure to effectively document or communicate violent propensities can lead to significant liability," he says.
The most immediate threat posed by violent patients is the danger to those in the immediate vicinity, such as staff and other patients, says Gatto. "If an ED fails to ask the correct questions, document them, and communicate them to other staff, the consequences can be severe," he says.
For example, in one case, a phlebotomist sued a hospital for damages arising from an assault by a patient during a blood drawing.2 The patient's previous caregivers within the hospital were aware that the patient had exhibited violent tendencies toward medical staff, but failed to advise the phlebotomist. The patient assaulted the phlebotomist, causing injuries to her left arm, and the phlebotomist successfully recovered damages from the hospital.
"There have been numerous other cases in which patients and employees have successfully sued hospitals for injuries sustained as a result of attacks by violent patients in the hospital setting," says Gatto.
Hospitals have been held liable for violent acts committed by patients even after their release from the hospital. In the famous case of Tarasoff v. Regents of the University of California, the California Supreme Court found the university liable for a psychiatrist's failure to warn a patient's former girlfriend of the patient's threats to kill her, which were made during a therapy session.3
"The Court ruled that health care providers owe a duty of 'reasonable care to give threatened persons such warnings as are essential to avert foreseeable danger,'" says Gatto.
In light of this case and many others that have followed, it is "highly important" that ED staff document any threat to the safety of others posed by potentially violent patients and take action accordingly, says Gatto.
Appropriate documentation includes asking the correct questions, documenting them thoroughly, and communicating them to every caregiver involved in the patient's care, he says. "Appropriate action includes involuntary commitment of the patient, contacting police, contacting the potential victim, or taking any other appropriate steps to prevent the threat posed by the patient from materializing," says Gatto.
A patient who comes to the ED threatening to shoot someone, or who is otherwise violent, should be physically restrained, if possible, and undergo a psychiatric evaluation, says Richard J. Pawl, MD, JD, FACEP, associate professor of emergency medicine at the Medical College of Georgia in Augusta.
"If the hospital makes all reasonable efforts to restrain this patient and fails, the hospital could still be sued, but would have a good defense to stand on," says Pawl. If the hospital was negligent in attempting to restrain the patient, or did restrain the patient and negligently allowed the patient to escape, knowing that the patient was threatening harm against others, there could be some liability. "The hospital could attenuate such liability by calling the local law enforcement agency and notifying them of the patient's escape," says Pawl.
If the patient is successfully restrained, then the ED must medically clear the patient by performing the medical screening examination mandated by the Emergency Medical Treatment and Labor Act (EMTALA).4 If found to have no acute medical issues, the patient may be legally committed to a psychiatric evaluation against his/her will, says Pawl.
The laws allowing such a patient to be legally restrained against one's will vary from state to state, but they generally rely on a medical person's assessment that the patient is any one, or all, of the following:
"Once the patient is committed to a psychiatric evaluation, the ED's liability is minimized," says Pawl.
1. Giggie MA, Olvera RL, Joshi MN. Screening for risk factors associated with violence in pediatric patients presenting to a psychiatric emergency department. Journal of Psychiatric Practice 2007;13:246-252.
2. Powell v. Catholic Medical Center, 749 A.2d 301 (N.H. 2000).
3. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)
4. www.emtala.com/law/index.html. Accessed on 10/30/07.
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