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Assaulting ED providers is a felony in many states. However, it is rare for anyone to press charges against assailants. In these cases, hospitals face potential legal exposure if leaders fail to:
Police responded after a patient’s family member assaulted an ED provider at Beaumont Hospital in Royal Oak, MI.
“The police hauled him out, took him to jail, and he was out on bond in a couple of hours. The prosecutor never brought the case,” says Bradford L. Walters, MD, FACEP, assistant program director for Beaumont’s emergency medicine resident program.
The assailant later claimed he was highly stressed because his brother was injured, which the prosecutor found sympathetic. This kind of response from the legal system is one reason so many ED assaults go unreported, according to Walters. “If nothing happens, people say, ‘What’s the point?’”
Walters has seen many other assaults against his ED colleagues go unpunished, including an ED nurse whose finger was broken. “Prosecutors have the attitude that ‘This is not something we’re going to go after,’” says Walters, noting assaults and threats have caused many people waiting for care to forgo treatment. “I have seen other patients leave the ED because of the violence.”
State felony laws do not affect ED practices and policies at all, according to James Phillips, MD, assistant professor of emergency medicine at the George Washington University School of Medicine and Health Sciences. “After years of researching healthcare workplace violence, most emergency physicians probably cannot tell you if they work in a state where it is a felony to assault a physician versus a misdemeanor.”
Even in states where it is a felony to assault a nurse, it is not always clear whether emergency physicians (EPs) are protected under the same law. “Nurses’ unions and advocacy groups have worked tirelessly to get protected person status for nurses, making physical violence against them a felony,” Phillips notes. “I know of no such physician groups who have done the same.”
It is unclear what percentage of ED assaults are reported or how many remain unreported. “These types of data are not tracked by any agency,” Phillips adds.
When he was a disaster medicine fellow in Boston, Phillips called the police after a patient assaulted him, resulting in a felony charge against the assailant. “In my 14-year career in medicine, I have never seen another physician or nurse call the police on a patient who assaulted them. I have witnessed numerous assaults during that time,” Phillips says.
The legal system is a barrier to reporting ED violence. “Police often downplay such assaults. This alone deters providers from calling, as they feel it is a waste of their time since the patient will not be arrested or ticketed,” Phillips offers.
If an arrested patient requires ongoing medical care, a police escort must be present in the ED with the patient the entire time. “This functions as a very strong deterrent to arrest, even when legally justified,” Phillips says.
At least one patient’s family filed a suit against the hospital instead of the assailant. The patient was choking an EP and was restrained by other ED staff and security. The patient suffered cardiac arrest during the attack. ED staff could not revive the patient. “There is currently a large lawsuit against the hospital alleging they are liable for the death of the attacker,” Phillips notes.
Even when ED providers involve law enforcement and perpetrators are arrested, prosecutors sometimes decline to file charges. “There’s fairly clear law on what a prosecutor is supposed to do when they are faced with certain crimes. Violence in the ED is not so clear,” Walters laments.
If prosecutors file charges, judges often dismiss them. This was the case when Walters was assaulted during an ED shift. “Are stressed plaintiffs and lawyers allowed to punch out the judge? I dare say no, but it’s OK in the emergency department,” Walters says. “We make excuses; people are stressed, they’re waiting a long time, they’re intoxicated.”
Of 3,539 EPs surveyed, 62% reported someone assaulted them in the previous year. About one-quarter said they had been assaulted two to five times, according to the results of a 2018 survey from the American College of Emergency Physicians (ACEP).1 The most common response of hospital administrators or security was to put a behavioral flag in the patient’s chart. In only 21% of cases, hospital security arrested the patient for the assault or enlisted law enforcement to do so. Hospital administrators advised EPs to press charges in just 6% of cases.
“Emergency docs are not only reluctant to prosecute, but also reluctant to even report the violence,” says Leigh Vinocur, MD, a Baltimore-based EP and former chair of ACEP’s committee on ED violence. Vinocur is no stranger to workplace violence: While seeking treatment for a drug overdose, a patient grabbed and choked her.
Many EPs in who participated in ACEP’s 2018 survey indicated that their hospital’s response was to simply remove or restrain the assailant. Thirty-four percent of EPs said the biggest contributing factor to ED violence was no consequences for the attacker. Just 3% of respondents said their hospital pressed charges against the individual. EPs do not want to stigmatize patients who are acting out while ill or impaired; “do no harm” is their ethical duty, Vinocur adds.
Assaults on EPs increased from about 28% annually in 2005 to about 38% in 2018, according to the results of a recent Michigan survey that compared survey data from 2005 and 2018.2,3 Researchers found that rates of ED violence were similar regardless of the practice setting. “It didn’t matter whether the hospital was rural, suburban, or urban, an academic medical center or a community hospital,” says Walters, who was involved in both studies.
Since the 2005 survey, more respondents reported seeing security personnel assigned to the ED, police in the ED, and the installation of metal detectors. Despite this, more EPs reported feeling “constantly fearful” of becoming a victim of violence (8.1% in 2018 vs. 1.2% in 2005). “EPs don’t feel particularly well-supported by their administration or the legal system,” Walters says. “That seems to be a prevalent opinion, and adds to a feeling of discomfort.”
Laws making assaults against ED providers a felony are not, by themselves, a solution, says Lisa A. Wolf, PhD, RN, CEN, FAEN.
“In order for [these laws] to have any effect, someone has to prosecute. What we hear from emergency nurses is that they are discouraged from filing charges by both hospital administrations and law enforcement.” Police or prosecutors convey this attitude with statements such as “the patient was impaired,” “this is just part of working in the ER,” or “you weren’t badly hurt.”4
“The most effective thing hospitals can do is to provide a simple, streamlined, actionable process for reporting incidents of violence,” says Wolf, noting most hospitals require some kind of de-escalation training. “If a nurse is injured, the hospital can claim it provided training.” Wolf adds one more warning: “In the case of a violent patient who has a history with the facility, failure to take precautions to keep providers, other patients, and the patients themselves safe could also result in legal responsibility on the part of the organization.”
Financial Disclosure: Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), is a consultant for Ethicon USA and Mobile Instrument Service and Repair. The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), Amy M. Johnson, MSN, RN, CPN (Accreditations Manager), and Terrey L. Hatcher (Editorial Group Manager).