Hospital can be sued in man's alleged attack on another patient

A column analyzing the impact of recent court decisions on physicians

By Alicia Gallegoscovered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  —  Posted Aug. 29, 2011.

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The Court of Appeals of Tennessee has ruled that a medical center can be held liable for one patient sexually assaulting another while in the facility. The claim falls under general premise liability, the court said, but should not be considered medical negligence.

The case raises questions about the responsibilities of medical professionals to keep patients safe from third parties. Experts say the ruling is a reminder for medical practices to discuss the risks of dangerous patients and implement plans to prevent potential violence.

A 2010 report by the Joint Commission shows that patients, visitors and staff at health care institutions increasingly have been victims of assault, rape and homicide. Since 1995, there have been 256 reports of violent crimes to the commission's Sentinel Event Database, a voluntary reporting system for serious adverse events in health care.

"There's no doubt that health care is seeing an increase in violence, not only in our emergency departments, but in our critical care and other units," said Russell Jones, network director for protective services at Albert Einstein Healthcare Network in Philadelphia and past president of the International Assn. for Healthcare Security and Safety. "I think a lot of what we deal with is societal. Because it's happening on a more frequent basis, it's obviously spilling into our facilities."

The Tennessee ruling stems from a lawsuit filed by a 20-year-old woman against HCA Health Services of Tennessee and Skyline Medical Center, a mental health facility in Madison. The woman was involuntarily admitted in 2009 after experiencing hallucinations, according to court documents. While showering, she said a male patient walked into her room and assaulted her. Staff allegedly stopped the attack and moved the female patient to another room under closer supervision.

The woman sued the medical center in 2010. She alleged that the hospital had failed to monitor her adequately, did not supervise the man who assaulted her and accepted patients when the facility lacked the resources to care for those residents.

Skyline denied any wrongdoing. The hospital said the case should be dismissed because the claims were based on medical negligence, and the plaintiff failed to comply with the Tennessee Medical Malpractice Act. Under the law, plaintiffs must file a pre-suit notice and a certificate of merit when filing a medical liability lawsuit.

A trial court ruled for the hospital. The court said the patient's claims involved the "monitoring of patients, the admission of patients and the placement of patients with regard to room assignments and staffing levels," which constituted medical liability claims. The patient appealed.

In its June opinion, an appeals court reversed the trial court's decision, ruling that the patient still could sue the hospital for the alleged attack. The plaintiff's claims did not "bear a substantial relationship to the rendition of medical treatment by a medical professional," the appeals court said. The complaint related to supervision by a security guard or through adoption of other appropriate safeguards, the court said. The ruling allows the lawsuit to move forward on grounds of "ordinary negligence," or "premise liability."

At this article's deadline, attorneys for both sides had not returned messages seeking comment.

Learning liability risks

Whether an assault within a medical facility is classified as medical negligence or premise negligence depends on the case, said Alfred F. Belcuore, a medical liability defense attorney based in Washington.

Premise negligence refers to a facility's failure to keep its environment safe for patients. For medical negligence, a plaintiff must prove that an injury occurred as the result of medical treatment or was due to a lack of adequate medical services, he said.

"A good lawyer is going to draft a complaint that would implicate all possible claims, especially if the incident could be tied to the rendering of medical care," he said.

Other court decisions have concluded that a patient attack is medical negligence, including a 2007 decision by the Court of Appeals of Tennessee. In that case, a nursing home patient attacked another patient in a dining area, according to court documents. The court said the health facility's decision to admit and retain the violent patient "was a medical decision," making the attack the result of medical negligence.

Because of the various liability risks, medical centers should notify all insurance carriers after identifying a potential litigious incident, Belcuore said. Risk management leaders should not assume they know which legal area a claim might fall under, he said.

Premise liability is covered in limited capacities by some medical liability insurers, but the policies primarily are sold by separate insurers. Experts say it's important for medical practices to check their policies to learn the terms and conditions of their premise liability coverage.

Keeping patients safe

At the University of Kentucky Good Samaritan Hospital in Lexington, emergency physician Ryan Stanton, MD, has seen his share of gang attacks, patients fighting and assaults on staff.

"The difficulty is, in hospitals we tend to treat the uninsured, and we run such a narrow margin to be able to keep our doors open," he said. "A huge security force is just not feasible. There's no way to completely eliminate risk, you just have to make [the facility] as safe as possible."

Facility administrators need to be proactive in evaluating their facility's potential risk for violence and discuss these risks with staff, Dr. Stanton said. Good Samaritan isolates potentially violent patients and separates vulnerable populations from those who could be dangerous, he said.

Physicians and other staff also should take extra precautions with patients who have a history of alcohol abuse, drug problems or domestic violence, he said. Hospital employees should be trained in self-defense and the safe detention of patients, he added.

Utilizing technology also is key, Jones said. Cameras, panic alarms and staff communication tools allow prompt recognition of violent situations and quicker resolutions, he said.

Providing the safest patient environment is not without its challenges. Most medical facilities balance security measures with limited budgets, said Kathleen McCann, RN, director of quality and regulatory affairs for the National Assn. of Psychiatric Health Systems and a psychiatric nurse for 38 years.

"It's certainly expensive to have safe environments," she said. "You can't be retooling your facility every year. Staffing is always a challenge. But more is not necessarily better. We need well-prepared, well-educated people who have been trained as a team and who work well together."

Medical staff should be mindful of the safety standards set by the Joint Commission, she said. These requirements include that all medical facilities implement a hospitalwide patient safety program, identify any environmental safety risks and evaluate all allegations or observations of abuse in the facility.

"Nothing will ever will be zero risk, especially in an environment like this," Dr. Stanton said. "It's like any disaster: We're not going to prevent them all, but even the smallest hospital needs to be prepared."

Alicia Gallegos covered legal, antitrust, fraud and liability issues during 2010-13. Connect with the columnist: @legal_med  — 

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External links

McCall Brister v. HCA Health Services of Tennessee, Court of Appeals of Tennessee, June 8 (link)

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