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By Janet Ours, RN, JD, Private Practice, Gainesville, VA
It took only a second for the patient to suddenly dart his head toward her hand and bite down HARD. The pain — and the realization that the distal phalanx of her left index finger was gone — would replay again and again slowly in her mind. It would seem that it took forever for her co-workers to wander to her side and recognize what had happened. When the staff shifted into their usual efficient response to a medical emergency, only then would the speed of the action reset to normal in her memory.
This story was never reported in any news media, but it was headline news for the staff of one hospital. Even an act of violence that is smaller and quieter than those in the major news media becomes huge when we are individually victimized. We all have experienced acts of violence. Anyone who has worked in an emergency department (ED) for any length of time has heard about them, told about them, and lived them. The stories of violence in our workplace are a part of who we are. Encounters with violent patients (or visitors) are an inevitable part of working in our EDs.1
Editor’s note: I still remember, although it has now been a number of years ago, the patient who sat down in the examining room at the University of Michigan to await his otolaryngologist. When the doctor walked into the room, the patient shot and killed him. It can happen anywhere, anytime.
As the prevalence of violence in our society and in our EDs — and perhaps because acts of violence naturally evoke strong emotions at the time — ED physicians and nurses need to have a clear understanding of their professional responsibilities and legal duties when faced with threats or acts of violence, as well as what they can do to protect themselves. From a practical perspective, their responsibilities and duties can be divided into three areas: 1) preventive strategies; 2) management of incidents of violence; and 3) follow-up after incidents of violence.
The Irving, TX-based American College of Emergency Physicians (ACEP) and the Des Plaines, IL-based Emergency Nurses Association have made formal statements acknowledging and recognizing the problem of violence in EDs and advocating for hospitals to provide adequate security systems and written policies and staff education on preventing, recognizing, and dealing with potentially violent situations.2-3 Much work also has been done by individual groups of health care professionals and others to develop strategies to prevent and manage violence in EDs.4-12 The Occupational Safety and Health Administration (OSHA) has prepared extensive guidelines detailing the extent of the problem of hospital violence and listing prevention and control recommendations.13,14 Various states also have developed similar standards and recommendations. The Joint Commission on Accreditation of Healthcare Organizations (Joint Commission) issued new safety standards in January 2001.
While the new standards now include medical/ health care error reduction standards, they also state that "although the standards focus on patient safety, it would be difficult to create an organizationwide safety initiative that excludes staff and visitors. Further, many of the actions taken to improve patient safety (e.g., security, equipment safety, infection control) encompass staff and visitors as well as patients."15 Another of the new standards states: "The leaders ensure implementation of an integrated patient safety program throughout the organization."16
Efforts to protect staff from ED violence have now gone beyond mere academic exercise and formal position statements, and we are now seeing tangible physical changes in our EDs. Arch-style metal detectors are being used in some EDs, and at least one study found that the vast majority of ED patients and visitors responded favorably to the presence of the metal detectors.17 One could wonder if there might have been some selection bias in this study with individuals who might have responded unfavorably to the metal detectors opting to avoid the detectors and care in that ED and leaving before being surveyed. The same study, which only addressed pediatric EDs, found that the current prevalence of arch-style metal detectors for security purposes in pediatric EDs was 6%.
It has been reported that one hospital on the fringe of a high-crime neighborhood in downtown New York City has instituted the use of a hospital-based canine unit.18 The dogs live in a kennel on the hospital’s roof, and each has a handler who grooms and practices obedience with his or her dog for half an hour at the beginning of a 7½- to 8-hour shift. The dogs patrol the ED and hospital lobby. Another nearby hospital began using canines after monitoring the first hospital’s experience, and both hospitals have reported positive results with the dogs. The nurse manager of one of the EDs said: "They have a very calming influence when people are riled up. The dogs command respect."19
Even those of us not yet using metal detectors or canine patrols likely cannot deny the physical changes within our departments as locked doors, uniformed police, panic buttons, security cameras, and code systems invade our environment. The media, professional journals,20-27 and our own experiences with acts of violence should force us to remain constantly vigilant. Within this reality of ever-present threat, it becomes the responsibility of all professional ED staff to make sure they are familiar with the hospital’s program for preventing and managing violence. What plans are in place at your hospital? To whom would you report that you observed someone slip past the locked door between the lobby and the secured patient care areas of the hospital at 4 a.m.? Do you know if patients have been screened for concealed weapons before you step into the examining room? How would you be able to signal for help if you felt physically threatened when you were alone with a patient with the door closed in that small isolation room in the back of the department? Is there a code system in place in your department? How would you activate that system, and what response could you expect? Is there a code word that department staff know that would cause them to signal an alert? Is there a separate code word to trigger an immediate all-out rush of personnel to a threatening person vs. a signal to begin a quiet gathering of personnel who would await a further signal before intervening? What would you do if you noticed a gun tucked in the sheets around a patient? What would you do if you suspected that the family arguing in the waiting room becomes violent? What is the fastest way to get help if someone seems to be becoming dangerously violent in the ED? What is the hospital policy for restraining a patient?
Whether you are a part-time employee only there for one shift or a full-time employee will not matter once you are caught in a physically threatening situation. Prepare yourself by thinking ahead and asking about applicable security procedures in your ED. Just as orientation to the department includes asking for the code to the staff lounge, you should include asking where the department security officer is stationed and how you should signal for help.
Does your hospital have a formal program for assessing individual patients for their risk of violence, and to what extent does the program address the role of the emergency physician or nurse? There are some formal programs of risk assessment being utilized in some EDs, and we will all anxiously await an assessment of the success or failure of these new programs.28-30
While it is important for all ED staff to know and comply with hospital policies, it must be remembered that compliance with hospital policies alone does not necessarily fulfill all of a physician’s or nurse’s legal duties. A hospital safety policy or rule is of the same legal importance as any other nonlegislative safety standard.31 Although the policy or rule is material and likely relevant as to duty and the standard of care, it does not itself establish either duty or the standard of care.32 In other words, the legal duty of care owed by the physician or nurse to individual patients and to third parties continues to be defined by the legislature and courts and cannot be usurped by a hospital or department policy. Since the hospital policy or rule is likely considered to be relevant as to duty and the standard of care, it should be expected that the policy or rule may become an important building block for the plaintiff in establishing his or her negligence case, if that policy or rule was not followed.
An expert witness may be asked if it would be within the standard of care for the emergency physician to know and to follow the relevant hospital or department policy or rule. The expert may even be asked to opine as to the appropriateness of the hospital policy or rule and whether compliance with the policy or rule meets the standard of care. While there may be some extreme instances wherein there might be a legitimate rationale for consciously deviating from the hospital policy, the standard of care more often would require compliance with all applicable policies and rules. While certainly important, compliance with the hospital policy or rule should be viewed as only one part of meeting the standard of care, just as noncompliance with the hospital policy or rule should be only one factor in a determination that the standard of care in a particular circumstance was not met.
The standard of care owed by a physician or nurse includes a consideration of what is reasonable under the circumstances.33 While the terms "standard of care" and "reasonable under the circumstances" may be so familiar as to be tedious to many physicians and nurses, it is important to remember that the emphasis upon "reasonable" rather than "customary" practice is an attempt to ensure that custom will not universally shelter practitioners who fail to reasonably adopt appropriate advances in their fields.34 As violence prevention and response to violent patients advance, as do hospital programs for the screening and evaluation of patients and visitors for the risk of violence, emergency physicians and nurses will be expected to reasonably adopt those measures.
Physicians and nurses have a duty to protect patients from harming themselves and may have a duty to protect others from being harmed by a violent patient. These overall duties translate in some cases into a specific duty to warn individuals of potential danger and confine mental health patients who are a danger to themselves or others.
What legal duty is owed by a treating physician or nurse to potential third-party victims of a patient’s future act of violence? The traditional common-law rule is that a person owes no duty to control the conduct of another person, to protect a third party from the acts of another person, or to rescue another person who is in danger. This rule owes its survival to the difficulties of setting standards of unselfish service to other individuals and crafting a workable rule to cover possible situations where, for example, 50 people might fail to rescue another.35 How would responsibility be apportioned among the 50 people? Over the years, the legislatures and courts have carved out exceptions to the general rule in cases in which the defendant stands in some special relationship with respect to either the person whose conduct should have been controlled or to the foreseeable victim of that conduct. Special relationships engendering duties of care have been found for caregivers, baby sitters, parents, employers, correctional authorities, controllers of dangerous substances, persons encouraging dangerous behavior, and many others. Physicians, and some nurses, now are typically considered to be in a special relationship with their patients with respect to this duty and, in many states, a physician or other health care provider has a duty to warn an identifiable third party of potential acts of violence.
The seminal case in the health care setting establishing an exception to the common law rule that there is no duty owed to a potential third-party future victim is Tarasoff v. Regents of University of California.36 This was a case where a young man (Prosenjit Poddar) was charged with murdering a young woman (Tatiana Tarasoff) two months after confiding his intention to kill her to a psychologist (Dr. Lawrence Moore) employed by a hospital at the University of California at Berkley. Mr. Poddar had informed his outpatient therapist (Dr. Moore) that he was going to kill an unnamed, but readily identifiable, girl when she returned home from spending the summer in Brazil. Dr. Moore, with concurrences from other therapists and doctors, notified campus police and requested they detain Mr. Poddar. Campus police took Mr. Poddar into custody, but released him after securing Mr. Poddar’s promise to stay away from Ms. Tarasoff. Subsequently, Dr. Harvey Powelson, the director of the department of psychiatry at the hospital, directed all copies of letters or notes Dr. Moore had taken as Mr. Poddar’s therapist destroyed and ordered "no action to place Prosenjit Poddar in 72-hour treatment and evaluation facility." Mr. Poddar then persuaded Ms. Tarasoff’s brother to share an apartment with him near her residence and, shortly after her return from Brazil, Mr. Poddar went to Ms. Tarasoff’s residence and killed her.
When Ms. Tarasoff’s parents brought suit claiming liability for a failure to warn or a failure to confine Mr. Poddar, the California Superior Court sustained the defendants’ demurrer (i.e., dismissed the case, agreeing with the defendants that there was no cause of action against the therapists, police, hospital, or university — no legal theory that would hold the defendants responsible to the plaintiffs, even if all the facts alleged by the plaintiff were true). When the Tarasoffs appealed to the California Supreme Court, the defendants repeated their argument that there was no cause of action because they owed no duty of care to Ms. Tarasoff or her parents. The court discussed the nature of legal duty and cited a well-known legal text, Prosser’s Law of Torts, for the principle that duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy, which lead the law to say that the particular plaintiff is entitled to protection.37
The court went on to discuss the particular policy reasons leading them to depart from the fundamental principle that no duty is owed to third parties. The major factors that the court listed in its decision to impose a duty of care in Tarasoff were the foreseeability of harm to Ms. Tarasoff, the degree of certainty that the plaintiffs would suffer an injury, the closeness of the connection between the defendants’ conduct and the injury suffered, the moral blame attached to the defendants’ conduct, the policy of preventing future harm, the extent of the burden to the defendants and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. The court found that the relationship between Mr. Poddar and the defendant therapists constituted a special relationship that supported the imposition of an affirmative duty to reasonably protect certain, identifiable third parties. Tarasoff thus became the basis for the developing legal doctrine that, where a physician or other health care provider has reason to know that a patient is likely to harm a specific, identifiable third party, the provider has a duty to take reasonable steps to warn the intended victim.
The Tarasoff court also discussed the degree of accuracy expected with respect to a practitioner’s prediction of potential harm to a third party. Even though, in Tarasoff, the therapists did in fact predict that Mr. Poddar might kill Ms. Tarasoff, one of the arguments put forward by the defense in that case was that a duty to exercise reasonable care to protect third parties would be unworkable because of the inability to predict whether a patient will actually harm someone. The Washington, DC-based American Psychiatric Association (APA) and other professional societies submitted amicus briefs supporting this position. An amicus brief is a written argument provided to the court by someone with a strong interest in the issues, but who is not a party in the case — "amicus" means, literally, "friend of the court." The amicus brief cited numerous articles supporting the argument that therapists were unable to accurately predict violent acts, and their forecasts tended consistently to overpredict violence.
The APA brief stated therapists are often more wrong than right in predicting violent behavior. The Tarasoff court stated that it recognized the general difficulty in attempting to forecast whether a patient presents a serious danger. However, the court said that it did not expect that the therapist, in making that determination, would render a perfect performance. Rather, the therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of his or her professional specialty under similar circumstances. This phrasing of "reasonable under the circumstances" should sound familiar because it is part of the definition of the standard of care. The Tarasoff court simply imposed the usual requirement that the standard of care be met on a therapist’s prediction of future risk of violent behavior, in the same way that it applies to other areas of professional practice.
The Tarasoff court also addressed the ethical conflict for physicians and therapists between any duty to warn and a duty to maintain the confidentiality of patients. The original source of the physician duty to maintain patient confidences is found in the Hippocratic Oath.38 Courts traditionally relied upon the Hippocratic Oath and the Principles of Medical Ethics from the Chicago-based American Medical Association in fashioning the common-law duty of confidentiality. More recently, many state legislatures have passed statutes providing for physician-patient confidentiality. In many cases, this confidentiality extends to other health care professionals. The Tarasoff court weighed the sometimes conflicting interests of effective treatment of mental illness and a patient’s right to confidentiality and the public interest in being protected from violent assault. The court cited the California physician-patient privilege statute that provided for an exception when necessary to prevent threatened danger: "There is no privilege . . . if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger."39 The court also cited the Principles of Medical Ethics, which provides that: "A physician may not reveal the confidence entrusted to him in the course of medical attendance . . . unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or the community."40 In summary, the court weighed these conflicting interests and held that "the protective privilege ends where the public peril begins."41
In considering any duty to warn third parties, it is important to note the facts in the Tarasoff case were rather extreme. In listing policy reasons for its decision, the court spoke first of the foreseeability of harm to Ms. Tarasoff. Remember that the court found the injury to Ms. Tarasoff was, in fact, foreseeable. Dr. Moore, the therapist, actually predicted and, therefore, had foreseen the harm that did ultimately occur to Ms. Tarasoff. Both Ms. Tarasoff and Mr. Poddar were part of a university community and identification, location, and availability of the potential victim and Mr. Poddar were seemingly within the control of the university. The California Supreme Court reaffirmed the importance of foreseeability in 1980 when it held that the duty recognized in Tarasoff does not apply to the general public, but arises only when the intended victim is foreseeable and identifiable. The court then ruled that a correctional authority had no duty to warn a neighborhood when it released a prisoner who had threatened general harm.42
Since Tarasoff, most states have adopted a duty to warn third parties either as a result of judicial decisions, statutes, or both.43 The legal literature often refers to a physician’s duty to warn third parties as the "Tarasoff duty" or "Tarasoff-type duty." While it is true that a few courts have declined to find a duty to warn in particular factual settings, the analyses by even those courts seems to follow the Tarasoff reasoning. Decisions to not impose a Tarasoff duty seem to be based upon a failure to meet the criteria discussed in Tarasoff. Generally, in order for a plaintiff to recover in a duty to warn case, the plaintiff must show: 1) a special relationship existed between him or herself and the physician, or the physician and the person who caused the injury; 2) the physician failed to meet the standard of care; and 3) the plaintiff, in most jurisdictions, was a foreseeable victim.
While Tarasoff-type duties have been found to have arisen out of many different types of special relationships since Tarasoff, it is clear that such a duty might well be imposed on an emergency physician or nurse. Whether a physician or nurse met the standard of care with respect to the duty to warn, and whether the third-party was foreseeable are the issues generally contested in recent cases.
While the duty to warn of potential acts of violence may be relatively settled today, the outer limits of foreseeability have expanded since Tarasoff. On March 14, 1994, a 39-year-old man with a history of mental health problems was treated and released from the New Milford Hospital ED in Connecticut.44 The emergency physicians observed or were informed that J.J. Schlegel had engaged in a wide range of irrational, delusional, and violent behavior. Mr. Schlegel had apparently attempted to choke his friend and housemate and violently struggled with ambulance personnel. He spit at and kicked hospital staff and attempted to bite one physician who attended him. He was put into physical restraints for the safety of himself and the staff. Mr. Schlegel made inappropriate and delusional utterances throughout the episode.
The emergency physician was shown a bag of what appeared to be mushrooms and was told by a state trooper and Mr. Schlegel’s housemate that Mr. Schlegel had been acting bizarrely at home. It was believed that he had taken psychedelic mushrooms and perhaps some pills or illicit drugs in New York City with alcohol the preceding day. The emergency physician ordered chlorpromazine and a consult with a psychologist. The chlorpromazine was administered at approximately 10:30 a.m., and by 11:30 a.m., Mr. Schlegel was calm and his restraints were removed. He remained in the ED until 5:30 p.m. and, during that time, it was never necessary to reapply the restraints.
Mr. Schlegel’s mother and housemate were present in the ED throughout the day. At deposition, a nurse working the 7 a.m.-3 p.m. shift in the ED testified that she never felt threatened by Mr. Schlegel, nor did she observe him threaten anyone else present in the ED, including his mother. It was discovered that Mr. Schlegel was HIV-positive and being treated by a psychiatrist in New York City. The emergency physician called and spoke to the psychiatrist and learned that Mr. Schlegel had a long history of mental health problems and substance abuse and had exhibited bizarre behavior toward his mother. The two physicians discussed Mr. Schlegel’s dependent relationship with his mother and that, while in the ED, he called his mother "mommy" and his mother was hugging him, stroking his head, and treating him like an infant. There was evidence that the psychiatrist agreed with the emergency physician’s plan to discharge Mr. Schlegel and agreed to see Mr. Schlegel in follow-up the next day.
A hospital psychologist also saw Mr. Schlegel twice during his stay in the ED. The psychologist determined that Mr. Schlegel had had an acute psychotic episode, probably due to hallucinogenic drugs, and he opined that Mr. Schlegel was neither a threat to himself nor anyone else. Mr. Schlegel was discharged about 5:50 p.m. and was given chlorpromazine and diphenhydramine (to be taken every eight hours, if necessary, beginning at 6 a.m), and instructions to follow up with his psychiatrist the next day and to call back if he did not feel well. At the time of his discharge, Mr. Schlegel was not agitated or combative, and the nurses reported that he was coherent and appropriate. According to one nurse’s deposition, there was nothing about Mr. Schlegel’s behavior that warranted a warning to his mother that he was potentially dangerous at the time of his discharge. On the following day, the housemate remained at home with Mr. Schlegel and his mother until approximately 1:30 or 2 p.m. and subsequently left to run some errands. Sometime that afternoon, Mr. Schlegel killed his mother.
It is reported that during an altercation with the police at the crime scene, Mr. Schlegel stopped breathing. He was brought by ambulance back to the New Milford Hospital ED, where resuscitation was unsuccessful. He was pronounced dead at 4:50 p.m.
After the executors of the mother’s estate filed a lawsuit, the defendants (the hospital, the emergency physician, and a consulting psychologist) filed a motion for summary judgment. The defendants asserted that the plaintiff had no cause of action (i.e., that there was no legal theory under which the defendants could be held liable, even if all the facts, as presented by the plaintiff, were true). The plaintiffs made two claims. They claimed the defendants had negligently failed to control their patient by not admitting him to the hospital for further care on the day of his ED visit. Secondly, the plaintiffs claimed the defendant negligently failed to warn Mr. Schlegel’s mother of the substantial risk of danger Mr. Schlegel posed to her in his condition. Plaintiffs claimed that, without such a warning, Mrs. Schlegel had no reason to know that she was in danger due to her son’s condition, much less a basis upon which to recognize possible signs of danger in time to protect herself.
The court denied the defendant’s motion for summary judgment. The court noted that the Supreme Court of Connecticut had held that, in this context, foreseeability required that the victim be a specifically identifiable potential victim of the patient or a member of a class of identifiable potential victims. The court found that it was not reasonable for the emergency physician and psychologist to believe, without further evaluation and treatment, that Mr. Schlegel would not revert to his dangerous, psychotic state when his chlorpromazine wore off, even if he stayed away from psychedelic drugs. They also found that, even though Mr. Schlegel had not ever directed any of his acts of violence toward his mother, he had very clearly directed his violence toward a narrow class of persons to which she belonged: friends, loved ones, and others who attempted to help and care for him in his psychotic state. Knowing, as they did, that upon releasing Mr. Schlegel to his mother’s care and custody, she would bring him home and attempt to care for him, the defendants knew or had reason to know that she would be in the same position of danger as every other person he had attacked in the preceding 24 hours. Finding that a reasonable jury could conclude that it was reasonably foreseeable that a psychotic and irrational J.J. Schlegel might attack his mother, despite his history of nonviolence toward her, when he had attacked and fought with friends and caregivers over the past 24 hours, the court found that a cause of action did exist and the case should continue on to trial. It then would be for a jury to determine whether it was reasonably foreseeable that Mr. Schlegel would kill his mother and she should, therefore, have been warned The case has not yet gone to a jury.
Tarasoff was the beginning of the duty to warn and explains the necessary components of that duty. Schlegel is an example of the current trend to expand the bounds of the duty. The Connecticut court’s holding as to when a jury could find foreseeability and, therefore, impose a duty to warn imposes a much broader duty than was imposed by the Tarasoff court. The narrow view of foreseeability (e.g., California) requires that there be a reasonably identifiable specific potential victim, whereas the broad view of foreseeability (e.g., Connecticut) requires only that the victim be within an identifiable class of victims (the class of caregivers in Schlegel). An even broader view of foreseeability was hinted at by the Schlegel court in its holding that foreseeability required that the victim be a specifically identifiable potential victim of the patient, a member of a class of the identifiable potential victims or at least within the zone of risk of an identifiable victim. The Tarasoff court, you will recall, said the nature of duty is not sacrosanct in itself, but only an expression of the sum total of those policy considerations that lead the law to say that the particular plaintiff is entitled to protection. It might be expected that policy considerations might change with society. Perhaps the broadening of the foreseeability requirement and an increased duty to warn and/or confine patients imposed by the Connecticut court reflects a judicial response to the current level of violence in our society.
Both the Tarasoff and Schlegel courts began their discussions with a consideration of a duty to warn and/or confine, but then seem to focus their discussions more exclusively on the duty to warn. From the practical perspective, this is confusing. If a patient is foreseeably dangerous, would a warning to a potential victim — or class of victims — really be enough protection? What exact warning would be considered sufficient in a specific situation? Should a call to police authorities with a request to forward a warning be sufficient? Would a warning to Mr. Schlegel’s mother have resulted in her not taking him home, caring for him, and eventually being killed by him? Would Tatiana Tarasoff, if warned, have been able to prevent her own murder? If the physicians involved had foreseen the danger clearly enough to warn, would it have been reasonable under the circumstances to go ahead and discharge Mr. Schlegel?
Civil commitments have certain advantages over simply warning potential victims. While it is true that many states have enacted legislation similar to the California statute in Tarasoff, state statutes regarding civil commitments might seem clearer to emergency physicians and easier to comply with. There are specific steps and a process outlined for the emergency physician to follow in committing a patient. Civil commitment requirements are a matter of state law. Your hospital should have a policy for civil commitment of patients that is based upon the legal requirements of your state’s mental health code. This translates to a logical, if not always convenient, sequence of steps to follow for emergency physicians. Here again, it is necessary to remember the relationship between hospital policy and the standard of care. The physician’s duty to comply with a statute is, of course, much more compelling than the duty to follow a hospital policy. What would your state civil commitment statute and your hospital policy require if Mr. Schlegel had been brought to your ED?
The current status of the duty to protect patient confidentiality has been considered in the decisions of the courts and the state legislatures and has been found generally to "end where the public peril begins," as stated in Tarasoff. The Code of Ethics for Emergency Physicians states: "Emergency physicians also have a responsibility to protect the confidentiality of patient information. Sensitive information may only be disclosed when such disclosure is necessary to carry out a stronger conflicting duty, such as a duty to protect an identifiable third party from serious harm or to comply with a just law."45
Editor’s note: An interesting provision. I would not advise focusing too closely on "just." Unless you want to be a civil disobedient, it is best to leave determinations of the "justness" of laws to the courts.
It took only a second for the patient to suddenly dart his head toward her hand and bite down HARD . . . .
Unfortunately, even with intensive preventive programs, it is still necessary to prepare for and expect acts of violence in our EDs. Physicians have a legal duty to react to violence or threats of violence in a way that is reasonable under the circumstances in protecting patients from harming themselves or others.
The use of patient restraints has been one of the Joint Commission’s "hot" review areas lately, and hospitals are reviewing and updating their restraint policies. Here again, it is important for the ED physician and nurse to be familiar with the hospital policy and to expect that the provisions of that policy might be used by a plaintiff as evidence of the standard of care. ACEP has a written policy on the use of restraints that includes the usual wording found in most policies that restraints become indicated when a patient becomes a "danger to self or others." 46 The Joint Commission defines an emergency appropriate for the use of restraints as an instance in which there is an imminent risk of a patient harming himself or herself or others, including staff; when nonphysical interventions are not viable; and safety issues require an immediate physical response.47 The Joint Commission standard for the initial assessment of a patient who is at risk of harming himself or herself, or others, including staff, states that assessments should include:
• techniques, methods, or tools that would help the patient control his or her behavior. When appropriate, the patient and/or family assists in the identification of such techniques;
• pre-existing medical conditions or any physical disabilities and limitations that would place the patient at greater risk during restraint or seclusion;
• any history of sexual or physical abuse that would place the patient at greater psychological risk during restraint or seclusion.48
Methods of patient restraint include physical restraints, chemical restraints, and seclusion.49 The Joint Commission defines physical restraints as the direct application of physical force to a patient, without the patient’s permission, to restrict his or her freedom of movement.50 Chemical restraints are medications used to control behavior or to restrict a patient’s freedom of movement that is not a standard treatment for the patient’s medical or psychiatric condition. Seclusion refers to the involuntary confinement of a person in a locked room.51 The ACEP policy states that the use of restraints should be carefully documented, including the reason for the restraints, and there should be documented periodic assessments of the restrained patient. Your hospital policy probably will specify an exact time interval for such periodic assessments. The Joint Commission standards provide for 15-minute assessments that include:
Many hospital restraint policies include checklist-type forms for completing all the requirements of the policy, including the patient reassessments. The duty to protect a patient from self-harm extends not only to the decision to institute restraint measures, but to the duty to act within the recognized standard of care in monitoring and protecting the patient from harm while in restraints as well. Once a patient is placed in any kind of restraints, the patient’s capacity to provide for his or her own safety is diminished. In 1989, a plaintiff was awarded a judgment for injuries sustained while she was in multiple restraints "and unsupervised" in an ED and another ED patient raped or attempted to rape her.53 It is important to be mindful that restraints are not a benign intervention. They have caused significant injury to some patients and require an investment of time and attention to be safety utilized.
Editor’s note: I recall an intoxicated patient many years ago when I was an intern who had been put into leather restraints. Unfortunately, he was not searched before he was left alone in the restraints. How many alcoholics do not smoke cigarettes? He was left with a cigarette lighter and managed to set his clothes on fire. Fortunately, his burns were not severe.
What is the policy in your hospital for calling for assistance from law enforcement? When patients become violent beyond our ability to safely manage them, police are needed. Local law and hospital policy will dictate the specifics of the interaction between the police and the hospital staff. Questions of whether to place certain violent persons under arrest, whether to transport those persons to jail or continue hospitalization under guard, and whether police responding in your hospital keep their firearms with them or place them in a lockbox are examples of issues that are dependent on local laws, resources, and hospital policies.
Another legal issue that comes into play when acts of violence occur on hospital property is premises liability, a tort law concept that allows crime victims to recover damages, in some cases, from the owner on whose premises a crime occurred.54 This may be another example of courts responding to policy considerations in the light of growing societal violence. Victims of violence on hospital property may file lawsuits against the hospital when the hospital’s negligence allegedly caused the injury. The growth of hospital premises liability lawsuits is driven by the fact that health care facilities, because they invite patients and visitors onto the premises, arguably owe these people a higher duty of protection than do other entities. Some courts have recognized a special relation-ship between the patient and the hospital and have based premises liability on that relationship. Some courts have looked to the foreseeability of a criminal act and the reasonableness of the hospital’s safety precautions in place at the time of the incident. Plaintiffs have recovered for physician rape of a hospital patient,55 failure to provide adequate security to prevent physical assault on a doctor in a parking lot,56 a patient’s injury from being struck with a chair by another patient,57 and many others.
. . . would replay again and again slowly in her mind.
Violence is devastating. Critical incidents are traumatic events that have sufficient emotional power to overcome the usual coping abilities of people exposed to them.58 Stress management and critical incident stress management have been shown to accelerate the recovery process for both acute and chronic stress, improve job satisfaction and performance, and decrease absenteeism and health problems.59 This is one area in which the community Emergency Medical Service (EMS) has led the way for other health professionals. The concept of debriefing has evolved from EMS and military personnel. The main goals of debriefing are to lessen the emotional impact of distressing critical incidents and to accelerate recovery from such events before serious stress reactions occur. Formal debriefings are structured group meetings that emphasize ventilation of emotion and discussion of reactions to the event. Formal Critical Incident Stress Debriefing (CISD) teams may be available through local EMS agencies. Informal debriefings also can occur in the form of impromptu meetings of the personnel involved in an incident in which the details of the event and its associated emotions are discussed. CISD has been widely successful and should be a part of the follow-up care given to any staff exposed to a significant act of violence in the ED.
The reporting of acts of violence in EDs has sometimes been problematic. Underreporting might reflect a lack of institutional reporting policies, employee beliefs that reporting will not benefit them, or employee fears that employers might deem assaults the result of employee negligence or poor job performance.60 To avoid negative publicity, hospitals sometimes avoid reporting incidents by cloaking the reports as protected peer review or quality assurance materials. There is also a persistent perception within the health care industry that assaults are part of the job.61
What is the policy in your institution for reporting acts of violence? To whom would you report a threat, a punch, or a bite? What written reports are made regarding acts of violence? Are there clear policies for when those reports should be forwarded to law enforcement agencies and OSHA? Is anyone keeping statistics on the acts of violence within your ED? What is the highest risk activity for physicians and nurses in your department? In what physical area of your ED have the most acts of violence occurred? How will you make your ED safer without knowing the answers to these questions? OSHA is keeping statistics on violence in the workplace. The Joint Commission encourages voluntary reporting of sentinel events: "an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof. Serious injury specifically includes loss of limb or function."62 Local police departments compile crime reports. Where is the information from your ED going?
It has been said that violence in EDs is a spillover of violence in society and that, in order to deal with hospital violence, we must confront issues such as gun control, homelessness, and domestic violence.63 In apparent agreement with that line of reasoning, ACEP has formed a 2000-2001 Violence Prevention Committee with stated objectives that include providing recommendations to the ACEP board on policies for handgun ownership, firearm legislation, handguns and handgun ammunition federal taxes, and others.64 Clearly, our problems with violence in the ED setting are part of a larger societal problem with violence. The ACEP Code of Ethics includes a statement that emergency physicians have a duty to oppose violence and to participate in efforts to educate others about the potential benefit of well-designed laws, programs, and policies that advance the overall health and safety of the public.65 Many emergency medical professionals have led the way by becoming actively involved in some excellent violence and injury prevention programs. As we progress in preventing and minimizing the violence in our society generally, we will progress in preventing and minimizing violence in our EDs.
The nurse who was bitten has returned to work. The surgical repair of her finger has turned out well. When she holds her hand out, her index finger is visibly shorter, but otherwise close to normal in appearance. There is complete numbness throughout the flap repair, but she reports her skill at venipuncture has been relearned without that sensation. Even with all the care she and her co-workers have received in critical incident stress debriefing and longer-term care, the injuries to her sense of safety linger — as do ours.
1. Hill S, Petit J. The violent patient. Emerg Med Clin North Am 2000; 18:301-314, x.
2. American College of Emergency Physicians. ACEP Policy No. 400148, Protection from Physical Violence in the Emergency Department. Irving, TX; reaffirmed October 1997.
3. Emergency Nurses Association. ENA Position Statement, Violence in the Emergency Care Setting. Des Plaines, IL; December 1999.
4. Id., Best AL. Preventing violence in hospitals. J Healthc Protect Manage 1990 Spring; 8(2):76-84.
5. Campbell J. Violence demands nursing solutions: Editorial. Am Nurse 1992; 24:4.
6. Colling RL. Hospital security: Is the patient at risk? J Healthc Protect Manage 1991 Summer; 7(2):37-42.
7. American Health Consultants. Fight security problems with tough RM agenda. Hosp Risk Mgmt 1989; 11:57.
8. Fein JA, Ginsburg KR, McGrath ME, et al. Violence prevention in the emergency department: Clinician attitudes and limitations. Arch Pediatr Adolesc Med 2000; 154:495-8.
9. Glasson L. RAP DEE (Recognition, Alert, Preparedness, Design, Education, and Enforcement) — Responding to disruptive/violent behavior in the emergency department. J Healthc Protect Manage 1991-1992 Winter; 8:112-114.
10. Pane GA. Preventing and controlling violence in emergency departments, West J Med 1991 Sep; 285-286.
11. Slovic P, Monahan J, MacGregor DG. Violence risk assessment and risk communication: The effects of using actual cases, providing instruction, and employing probability versus frequency formats. Law Hum Behav 2000; 24:271-296.
12. The reality of violence in the workplace: Stop being scared; start acting smart. Hosp Secur Saf Manage 2000; 20:5-8.
13. Occupational Safety and Health Administration. Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers. OSHA 3148, Washington, DC; 1998. Available at web: www.osha.gov.
14. Id. 4-5.
15. Joint Commission of Accreditation of Healthcare Organizations. Revisions to Joint Commission Standards in Support of Patient Safety and Medical/Health Care Error Reduction. Oakbrook Terrace, IL; 2001.
16. Id., Standard LD.5.
17. Mattox EA, Wright SW, Bracikowski AC. Metal detectors in the pediatric emergency department: Patron attitudes and national prevalence. Pediatr Emerg Care 2000; 16:163-165.
18. Sierpina D. The view from Stamford: A canine corps helps keep the peace at a downtown hospital. The New York Times Feb. 26, 1995; 2 /13CN Connecticut Weekly Desk.
20. Gunman shoots 3 in L.A. hospital. The Fort Wayne News-Sentinel Feb. 9, 1993:H4.
21. Three wounded as patient opens fire. The Fort Wayne Journal Gazette July 11, 1993; 11A.
22. Pinkey D. Nurse’s danger: Attacks on the job — violence grows in hospitals. Chicago Sun-Times Sept. 20, 1992; 1, 30.
23. Brantley A. Rising violence in ERs cause hospitals to redesign security. Mod Healthc 1992 Oct. 5; 44.
24. Faivelson S. Weapons in the wards: Violence nationwide at times turns ERs into combat zones. Med World News 1993 March; 60.
25. Morgan RB. Health facility crime to worsen during 1990s. Health Facil Manage 1989; 2:26.
26. U Va JL. Urban violence: A health care issue. J Am Med Assn 1990; 263:135.
27. Cardalis JJ. A haven or horror: The emerging problem of violent crimes at health care facilities. Health Care Bottom Line 1989 Aug; 3.
28. Glasson, supra at note 9.
29. Slovic, supra at note 11.
30. The Reality of Violence in the Workplace: Stop being scared; Start acting smart, supra at note 12.
31. Jackson v. Oklahoma Memorial Hospital, 909 P.2d 765 (1995) 775.
33. Joyce v. Boulevard Physical Therapy & Rehabilitation Center, P.C., 604 A.2d 648, 656 (Pa.Super. 1997).
34. Nowatske v. Osterloh, 543 N.W. 2d 265, 272 (Wis. 1996).
35. Prosser, Torts, (4th ed. 1971), § 56, 431.
36. Tarasoff v. Regents of the University of California. 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).
37. Id. Citing Prosser, Law of Torts (3d ed. 1964); 332-333.
38. Whatever, in connection with my professional practice, or not in connection with it, I see or hear, in the life of men, which ought not be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.
39. Tarasoff, supra at note 36, n 12.
40. American Medical Association. Principles of Ethics of the American Medical Association. (1957) section 9. (emphasis added by the court).
41. Tarasoff, supra at note 36, 442.
42. Thompson v. County of Altameda, 614 P.2d 728 (Cal. 1980).
43. Lake PF. Revisiting Tarasoff. 58 Ala. L. Rev. 97,98 (1994).
44. Schlegel v. New Milford Hospital et al. 2000 Conn. Super. LEXIS 1196 (May 2000).
45. ACEP. Code of Ethics for Emergency Physicians. Policy no. 400188, June 1997.
46. ACEP. Use of Patient Restraints. Policy no. 400119, approved June 2000.
47. Joint Commission on Accreditation of Healthcare Organizations. Comprehensive Accreditation Manual for Hospitals: The Official Handbook, Update 3. Oakbrook Terrace, IL; 2000.
48. Id., TX-51.
49. ACEP, supra at note 46.
50. Joint Commission, supra at note 47.
52. Id., TX-50.
53. Freeman v. St. Clare’s Hosp. and Health Cntr., 548 N.Y.S.2d 686 (N.Y. App. Div. 1989).
54. Schendel NJ. Note: Patients as Victims — Hospital Liability for Third-Party Crime. 28 Val. U.L. Rev. 419, Fall 1993.
55. Copithorne v. Framingham Union Hosp. 520 N.E.2d 139 (Mass. 1988).
56. Isaacs v. Huntington Memorial Hosp., 695 P.2d 653 (Cal. 1985).
57. Doctor’s Hosp. v. Kovats, 494 P.2d 389 (Ariz. Ct. App. 1972).
58. Mitchell JT. The history, status, and future of critical incident stress debriefing. JEMS 1988; 13:47.
59. Emergency Nurses Association. ENA Position Statement, Critical Incident Stress Management. Des Plaines, IL; revised and approved July 1998.
60. OSHA Report, supra at note 13.
61. American Health Consultants, supra at note 7.
62. Joint Commission, supra at note 15.
63. ACEP. 2000-01 Violence Prevention Committee Objectives.
64. ACEP, supra at note 45, section II. D.3. e and f.
65. ACEP, supra at note 45.