Recently, a young woman presented to a Michigan ED after a “slip and fall” accident, but ended up with an intentional injury. Shortly after her arrival, the patient was assaulted by a male visitor who struck her as she was checking in. The incident was captured on the hospital’s surveillance video. The resulting lawsuit alleges that the attack could have been prevented if the hospital had monitored the patient properly.1 According to a police report, the man charged in the attack had been discharged but was lingering in the ED lobby and was previously warned about bothering others. “The hospital has a fiduciary obligation to protect the safety and well-being of every patient that they accept control and care over,” says Steven S. Wilder, BA, CHSP, STS, chief operating officer of Sorensen, Wilder & Associates in Bradley, IL. Seldom does a person go from a state of calm to physical violence without warning, Wilder says. “A lot of it comes down to early recognition: Do the staff recognize when the aggressive patient’s behaviors are escalating?” This is why Wilder recommends that all ED staff, not just the clinical team, receive appropriate training. Wilder says hospitals can expect plaintiff attorneys to explore these questions:
- What type of intake assessment was conducted on the aggressive patient to determine if he or she was a risk to others?
- What type of training did the staff receive to be able to recognize and defuse the aggressive behavior?
- Did the aggressive person have any history of violent outbursts or threatening behavior on past visits?
- Does the ED have a way to document or flag patients with a history of violent behavior so it can be noted for future visits?
One defense strategy for the ED is to argue that staff are not always stationed at patients’ bedside; therefore, no one observed the changes in behavior that were occurring.
“If the aggressor is giving off early warning signs, a trained person would likely recognize them,” Wilder offers.
“The nature of the care provided in the emergency department may predispose staff, visitors, and patients to violent encounters,” notes Edward Monico, MD, JD, assistant professor in the department of emergency medicine at Yale University School of Medicine.
These factors include continuous, uninterrupted accessibility; the potential for inadequately trained or visible security guards; patient pain and discomfort; family member stress; inadequate communication between staff, patients, and family members; and overcrowding resulting in long wait times.
To prevail in a malpractice claim involving an ED assault, the first step is to prove the hospital has a legal obligation. “A plaintiff could demonstrate that maintaining safety in the emergency department is the responsibility of the hospital,” according to Monico. The plaintiff could use guidelines from various organizations to support this. Some “on-point” examples:
- The Emergency Nurses Association’s 2014 position statement on violence in the emergency care setting, which states that “healthcare organizations have a responsibility to provide a safe and secure environment for their employees and the public”;
- The Joint Commission’s requirement that “hospitals must maintain a safe environment”;
- In Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, OSHA established that “employers must furnish a place of employment free from recognized hazards.”
“An allegation of assault and battery, followed by an allegation of negligence on the part of the hospital, involve two separate burdens of proof,” Monico says.
The elements of assault include showing that an act was intended to create a reasonable apprehension of imminent harm that is either harmful or offensive.
The elements of battery include demonstrating an unlawful or unauthorized application of force to another person, resulting in harmful or offensive contact.
Hospital negligence would involve demonstrating that the hospital owed a duty to the injured party, as well as showing it was negligent in discharging the duty.
“The plaintiff would first prove that the alleged act was foreseeable, and that hospital staff were aware that a violent act might ensue,” Monico notes. Once an obligation on the part of the hospital to maintain a safe environment is established, liability can fall on the hospital for failure to meet it.
The next step: An allegation that the hospital failed to act to prevent the injury, or that the actions taken were insufficient. A disruptive, aggressive, intoxicated patient is a common example.
“If that patient subsequently injures another patient, it could be possible to show that the behavior of the patient should have put the staff on notice that the patient could be dangerous and should not have been left alone,” Monico says. If an ED patient is assaulted, Monico says these will be points of contention:
- whether the hospital had policies in place to help personnel recognize and mitigate violent situations;
- whether existing hospital policies were followed by the staff involved;
- whether hospital staff were on notice of impending violence;
- what steps were taken, if any, to prevent violence from materializing.
There is legal exposure for the hospital, concludes Monico, “if the hospital staff knew or should have known the aggressor was violent or had the potential to be violent, and failed to take reasonable steps to mitigate harm.”
- Hicks M. Suit: Woman attacked in Beaumont Dearborn ER. The Detroit News, March 30, 2018. Available at: . Accessed June 6, 2018.
- Edward Monico, MD, JD, Department of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. Email: firstname.lastname@example.org.
- Steven S. Wilder, BA, CHSP, STS, Chief Operating Officer, Sorensen, Wilder & Associates, Bradley, IL. Phone: (815) 933-5977. Email: email@example.com.