It is not uncommon for individuals seeking narcotics or medical treatment following an off-site altercation to engage in confrontational behavior with ED staff. “These volatile situations often erupt rapidly,” says Rich Cahill, vice president and associate general counsel at The Doctors Company.
In the ED, the potential danger of significant injury occurring is “undoubtedly greater than other healthcare venues,” Cahill adds. “Proactive precautions must be implemented well in advance to minimize the potential damages.”
Victims of ED violence may be professional staff, employees, patients, or third-party vendors. “Not uncommonly, assailants may include other patients, family members, visitors, or even itinerant homeless persons inhabiting the area,” Cahill notes. He recommends training ED personnel on methods to help deflate volatile situations and circumstances that warrant summoning security personnel or law enforcement.
Cahill recently shared insights on third-party violence and hospital liability:
• On hospitals’ liability exposure: Attacks often result in an arrest and criminal prosecution. Victims may separately pursue civil monetary damages for injuries sustained directly against the assailant.
According to the established common law of most jurisdictions, the enhanced risk of injury, also known as foreseeability, means that there is an increased legal responsibility on the part of hospital EDs to take appropriate precautions in advance. A facility facing civil litigation undoubtedly will need to demonstrate to a jury that due diligence had been conducted timely to identify possible risks, that protocols had been implemented to address likely scenarios, and that precautions were reviewed periodically to ensure best practices.
Often, the criminals are indigent and without financial resources to pay judgments imposed by the judicial system. Historically, the innocent bystander in those situations received no compensation. Employees injured in connection with their job responsibilities may seek redress through the state’s workers’ compensation system. Such recoveries tend to be limited, and often do not fully recompense an individual for the damages incurred.
Traditionally, government entities or religious groups owned and operated hospitals. Thus, those facilities were protected from civil liability by long-recognized principles of sovereign and charitable immunities. Antiquated common law rules governing the duties of landowners to persons injured on the premises made recovery by such persons even more difficult to establish. Over the last 50 years, federal and state governments have eliminated the shield of sovereign immunity. Hospitals are increasingly operated as business enterprises and purchase various insurance coverages to protect against risk. Generally, charitable immunity is no longer necessary as a matter of public policy. The common law has gradually evolved to recognize that persons injured on the property of another, including hospitals and other healthcare facilities, may seek redress for injuries sustained on the premises, regardless of the perpetrator, even by an individual engaged in criminal activity.
• On laws regarding recovery of monetary damages: State laws vary significantly as to the theories of liability that are recognized to permit a person to recover monetary damages for harm sustained while on a hospital campus. Some jurisdictions have adopted a type of claim based on principles of premises liability. Others allow litigants to allege, depending on the circumstances presented, that the conduct of the healthcare provider was a form of professional negligence. Still other states have adopted the view that an injured plaintiff may assert a theory of general negligence. Here, the litigant need only establish that the facility owed the individual a duty of due care, there was a breach of that duty (often expressed as a failure to exercise reasonable care), there is a causal relationship between the negligence and the injury, and the plaintiff suffered legally compensable damages.
Clearly, an individual harmed by the violence of another while visiting a hospital, generally regardless of the purpose for which he or she is on the premises, must establish preliminarily that the entity sued owned the facility when the alleged incident occurred, and that the injured person was owed a duty of due care.
An attorney representing an injured person must attempt to develop those facts that support the alleged theory or theories of liability as recognized by appropriate statutory and case laws. Depending on the applicable state, questions of foreseeability of the injury and reasonableness of the defendant in operating the hospital are factors to consider. For example, is the medical center located in an inner-city area with a high crime rate? Have other attacks occurred? By whom and when? Were there training protocols in place for security personnel and professional staff on what clues might indicate a problem is imminent? What about policies regarding the presentation of a particular scenario? How do those policies and procedures compare with guidelines adopted by other similarly situated facilities in comparable locales?
Ordinarily, liability will be evaluated based on what the hospital did compared to other similarly situated facilities under the same or similar circumstances. Independent expert testimony and even surveys conducted by other providers identifying standards in the community will be presented as evidence.
Ultimately, juries or judges will determine whether the facility was reasonable and acted consistently with community norms. They also will determine whether different or additional precautions would have prevented the personal injury damages.
• On liability exposure involving hospital security: Not infrequently, medical centers contract with private security companies to provide surveillance and other security services on the premises. Ordinarily, the contracts state that the company is an independent contractor and will provide adequate staffing, training, and liability insurance in case of an adverse event. The contracts may contain an indemnity provision in which the security company agrees to assume defense costs and pay any monetary damages incurred by the facility in the event of a loss due to service provider negligence. Nonetheless, states are adopting the concept of ostensible agency in which even an independent contractor can be found to be the agent of the hospital, resulting in vicarious facility liability.
Also, medical facilities are entering into agreements with private companies to provide security and other on-site protection within the hospital, ED, and common areas. The contracts usually stipulate that these third-party vendors are independent contractors, and that the security company will be responsible for the conduct of its employees, including injury caused to others on facility premises. These contracts usually include a clause stating that the security provider will defend the facility in the event of litigation and will indemnify the medical center should an adverse event caused by the vendor or its employees result in plaintiff’s verdict or settlement.
Medical centers often avoid such claims by posting signage in common areas that read: “Emergency department providers, imaging, and laboratory staff and security personnel are independent contractors and are not employees of the facility.” As most facility administrators are aware, medical centers still can be sued for the conduct of independent contractors. This is true whether the suit is based on legal theories of vicarious liability and ostensible agency, or based directly on an allegation of negligent hiring, monitoring, or retention.
To limit potential financial exposure in the event of an injury and subsequent litigation, hospitals should retain insurance policies, including professional and general liability coverage endorsements, for the vicarious acts of third parties.