Staff pray with patients? Don't fear lawsuits
Practitioners should tread carefully
If highly religious nurses or physicians feel that it is appropriate to pray with patients and to share their faith, some patients will appreciate this, while others might not. However, it's unlikely this practice will lead to a lawsuit.
Lawrence B. Stack, MD, associate professor of emergency medicine at Vanderbilt University in Nashville, TN, and other legal sources say they know of no lawsuits involving praying in the ED. "There has been one case of a nurse suspended because a patient complained that she offered to pray for him, but there has been no legal action that I can tell," Stack says.
The one caveat that he offers is that "spiritual health care" in the ED should be treated like any other health care information and is subject to patient privacy regulations.
Stack says that several hospital chaplains informed him that their organizations had no specific policy regarding praying with patients. "It has not been an issue, at least in our hospital," he says. "Prayer in the ED is not necessarily discouraged or encouraged."
Stack has prayed with patients several times in the ED, usually at their request. "If you ask the patient, there is always risk of offending somebody, but it is highly unlikely for a lawsuit to occur when offering help for the spiritual component of their lives," he says.
Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA, says it would be difficult to prove damaged if an ED staff member prayed for a patient.
"It would be more of a nuisance suit," says Lawrence. "A patient could conceivably sue the physician or the facility for infliction of emotional distress, but I am not aware of any suit where that's actually happened."
Lawrence says that while there's nothing wrong with praying with a patient, the physician should not initiate it. A clinician's attempts to proselytize are an "unprofessional and ethically abhorrent abuse of power," he says. "The reason it's an abuse of power is because of the unequal relationship. The patient is a dependent of the physician in their relationship. The same would be true if you tell a patient to vote Democrat. It is probably not illegal, but it is unethical."
Lawrence says that ED nurses and physicians should tread carefully in this regard. "This is why hospitals have pastoral care divisions," says Lawrence. "Hospitals are in the business of providing medical treatment, but recognize that for a lot of people, that includes a spiritual component." It is always helpful if the physician is the same religious background as the patient, adds Lawrence.
ED physicians should be sensitive to the patient's desire, or lack thereof, to have prayer brought into their care, says Lawrence. Also, a passive role, not an active one, should be taken by the physician, saying "Amen," but not leading the prayer, for example, he says. "I've been asked by patients and families if I would mind praying with them. I respectfully stand there, but I don't participate in an active way," says Lawrence.
Employees may offend
Chris DeMeo, JD, a health care attorney with Munsch Hardt Kopf & Harr in Houston, TX, says that it is more likely that if a patient or family member is offended by a care provider's religious expression, he or she will complain to the hospital rather than file suit.
"This puts the hospital in the position of balancing between patient satisfaction and its employee's religious freedom," says DeMeo. "Misapplying that balance can and does lead to litigation."
DeMeo says that the legal risks of praying with patients, with respect to professional liability or malpractice, should be "relatively minimal." This minimal risk is assuming the religious expression does not interfere with the quality of patient care.
A physician or nurse praying with a patient or family, or otherwise expressing their faith, will not cause physical injury to the patient. "Most states do not recognize a cause of action for mental anguish absent a physical injury, unless the conduct causing the mental anguish is extreme and outrageous," says DeMeo. "Someone in the ED praying with a patient or sharing their faith wouldn't reach this level."
Conceivably, a patient could have a case if an ED staff person did something egregious, like telling a patient or family member that a terrible injury or death is a punishment from God. "Short of that, there is not much exposure to lawsuits from patients and families in this regard," says DeMeo.
DeMeo says that a bigger liability concern for EDs is in dealing with employees whose religious expressions might offend patients, families, or coworkers.
As an employer, the ED could have exposure under Title VII of the Civil Rights Act for taking adverse employment action against an employee for exercising his or her freedom of religious expression. An adverse employment action generally means termination, demotion, a material loss of benefits, or significantly diminished material responsibilities, says DeMeo.
An employer is required to make a reasonable accommodation for the religious expression that does not cause undue hardship. "That being said, an employer is not required to allow an employee to impose his or her religious beliefs on others," says DeMeo.
Therefore, if patients, families, or coworkers are offended by an ED provider's religious expression, or such expression is otherwise disruptive, the ED might be justified in disciplining the employee and curtailing the offensive or disruptive behavior. "Each case will depend on its specific facts," says DeMeo.