By: Brian Cathell, Esquire and Kathryn Jackson, J.D.
In recent years, workplace violence has reached alarming numbers. More than 2 million Americans report being victims of violence in the workplace each year.[1] For healthcare workers and facilities, these numbers are even higher. In fact, the number of incidents in the healthcare field is four times those of other industries.[2] It is no surprise that healthcare facilities come with great risk—providing care can often mean treating patients with histories of mental health problems, under significant stress, or those under the influence of drugs. Because of the high degree of sensitivity in the healthcare field, it is of the utmost importance that facilities and providers prepare adequately to prevent these events and to understand potential liability if an incident occurs
Preventing Violence
Healthcare facilities can best prevent instances of workplace violence by identifying potential threats and by implementing policies and procedures in case of an emergency.
First, facilities should make it a priority to train their staff to identify what conditions and behaviors could classify a patient as a violent threat. While these types of patients are more easily identified in nursing or mental health facilities, all institutions should pay special attention to patients that exhibit warning signs of violence. Patients that are uncooperative, frequently complaining about staff, or challenging their care are particularly notable. Other warning signs include: restlessness, verbal aggression, inappropriate sexual behavior, confusion, or socially withdrawn behaviors. It is also important to keep in mind the diagnosis or history of each patient—those with history of criminal violence, cognitive impairment or dementia may be more prone than other patients to commit acts of violence.
More than seventy-five percent of perpetrators of instances of mass violence have made concerning statements or exhibited risky behavior prior to their attacks.[3] Thus, in making identification a high priority, many of these events can be prevented. Take special care to train anyone in contact with a particularly concerning patient to recognize the signs and have a policy in place to report and monitor risky patients carefully.
In addition to patients, workplace violence in healthcare institutions may also be committed by employees or third parties—most often motivated by personal or domestic issues. These types of attacks are often motivated by personal “stressors” such as: family or romantic relationships (deaths, divorces, abuse etc.), personal instability (such as finances or health concerns), or work environment (bullying, terminations, or filing grievances).[4]These types of perpetrators may be more difficult to audit. While healthcare workers are experienced in monitoring patients, this rather requires staff members to observe and report each other or for individuals to report confrontations with others in their personal lives that may give rise to violence. Because of the sensitive nature of these relationships, putting into place policies regarding anonymity may help to encourage disclosing threats. While these types of identifications may not come second nature to many healthcare professionals, it is also important to educate staff about the preventability of these types of incidents in order to encourage watchfulness and reporting.
Once a threat has been identified, prevention plans can begin. Proper procedure may range from simply monitoring the threat more closely to alerting law enforcement. Another option is to file for a workplace violence restraining order, which can prevent the suspect from entering the facility or approaching employees/patients. Almost every state recognizes some type of workplace violence restraining order, and courts generally require a “credible threat of violence” be shown by clear and convincing evidence.[5] This may be a difficult burden to satisfy for aggressors who are more subtle in their alarming behavior. Maryland law is surprisingly thin in this area and does not include any workplace-specific protections. However, a general peace order[6] would still be applicable to any workplace threats and prescribes a less burdensome standard. Victims of workplace threats must prove by a preponderance of the evidence that they suffered abuse, stalking, harassment or imminent fear of bodily harm.[7]
Even when threats are identified and reported, it is still of the utmost importance that facilities have procedures in place in the event an incident actually occurs. Active shooter drills are the most common way to train staff for these types of events and can be valuable tools in preparing employees to care for patients, evacuate the building, and communicate with other staff or police during an emergency.
Potential Liability
Liability for these types of incidents arises from a duty of care. That is, a healthcare facility has a duty of care to protect people from injuries that are “reasonably foreseeable.” Facilities that fail to identify threats that should have been known or that fail to train staff for foreseeable emergencies may establish a duty of care imposing liability.
While this type of liability may be obvious to those in the healthcare field, there is an even more common scheme of liability emerging—for breach of duty to warn. While a duty to warn others about possible violent tendencies of patients may seem at odds with HIPAA to healthcare professionals, recent cases have exposed a possible vulnerability for healthcare facilities that is important to note when designing and implementing a workplace violence policy.
Most commonly brought against mental health facilities, “failure to warn” lawsuits have been gaining traction in recent years in some jurisdictions. Incidents where a discharged patient or terminated employee, known by the facility to be potentially violent, later harms a third party most commonly give rise to these types of suits. In Maryland and many other states, mental health providers are required to report patients that make credible threats of violence against readily identifiable victims.[8] However, more recently, a small minority of courts have broadened the duty to encompass any third party that is “reasonably foreseeable” or within the “zone of danger.”[9]
With the rising statistics of workplace violence across the country, the scope of liability arising from these events will inevitably expand as well. As healthcare providers, patient safety is always the number one priority. It is imperative that providers have specific procedures in place to protect patients and employees from harm, and also to protect themselves from liability.
Brian M. Cathell is a Member in the Firm’s Medical Malpractice Defense Group. He has considerable experience defending medical malpractice cases, as well as defending physicians and other health care providers in various administrative forums. Prior to moving to civil litigation, Brian was an Assistant State’s Attorney for Baltimore County where he tried hundreds of cases to verdict. Brian can be contacted at 410-339-6771 or bcathell@pklaw.com.
Kathryn Jackson is a law clerk at PK Law. She recently graduated with her Juris Doctorate degree from the University of Maryland Carey School of Law. Upon being sworn in to the Maryland Bar she will transition to a position as an Associate of the firm.
[1] See Is Your Workplace Prone to Violence?, National Safety Council, https://www.nsc.org/work-safety/safety-topics/workplace-violence (last accessed Sept 19, 2018).
2]See Preventing Workplace Violence, Occupational Safety and Health Administration https://www.osha.gov/dsg/hospitals/workplace_violence.html (last accessed Sept 19, 2018).
[3] See Mass Attacks in Public Spaces, United States Secret Service National Threat Assessment Center (March 2018).
[4] Id.
[5] See Fuchs v. Riverbend Assisted Living, 59 N.E.3d 269, 273 (Ind. Ct. App. 2016) (discussing a credible threat of violence under the state standard that defines it as “a knowing and willful statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.”).
[6] Or a protective order, should the threat be a domestic matter.
[7] Md. Code Ann., Cts. & Jud. Proc. § 3-1505.
[8] See Md. Code Ann., Cts. & Jud. Proc. § 5-609; see also Dawe v. Dr. Reuven Bar–Levav & Assocs., P.C., 780 N.W.2d 272, 278 (Sup. Ct. Mich. 2010) (establishing duty to warn for mental health professionals when patient makes threat of violence against “reasonably identifiable third person” and has apparent intent and ability to carry out threat); See also Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720 A.2d 1032, 1040–41 (Sup. Ct. Pa. 1998) (stating that psychotherapist has duty to warn only when specific and immediate threat of serious bodily injury has been made against “specifically identified or readily identifiable victim.”).
[9] See Kuligoski v. Brattleboro Retreat, 156 A.3d 438 (Sup. Ct. Vt. 2016)(broadening the “duty to warn” for healthcare professionals).
