In recent years, violence has become increasingly common in the workplace over the past decade, especially in the healthcare setting. Victims may be professional staff, employees, patients, or third-party vendors. Not uncommonly, assailants may include other patients, family members, visitors, or even homeless persons inhabiting the area. The Joint Commission reported in a Sentinel Event Alert in 2010 that healthcare facilities are no longer considered “safe havens” and are experiencing an alarming growth of crime such as murder, rape, and assault.
In fact, just over the last year there have been several instances of such violence in New York alone. Most notably, in July 2017, Bronx-Lebanon Hospital Center was targeted by a disgruntled former employee who entered the facility and opened fire with an assault rifle, ultimately killing a doctor and wounding six other people before taking his own life.
Even after this event, which led to calls for workplace safety reform and other protections, another incident occurred in October 2017 involving a New York emergency room nurse who had been repeatedly threatened with rape by a patient she was treating. Upon leaving the hospital after a shift one day, she found this patient waiting for her outside, after which he began to disrobe and chase her.
Attacks like these are unfortunately not uncommon for healthcare workers in New York, and often result in an arrest and criminal prosecution. Victims may separately pursue civil monetary damages for injuries sustained directly against the assailant. Often the criminals are indigent and without financial resources to pay judgments imposed by the judicial system. The innocent bystander in those situations historically 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.
Hospitals traditionally were owned and operated by governmental entities or religious organizations and were thereby protected from civil liability by long-recognized principles of sovereign and charitable immunities. Antiquated common laws 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 now purchase a variety of insurance coverages to protect against risk. Charitable immunity is generally 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.
In some cases, hospitals where third-party violence has occurred have faced regulatory bodies seeking to hold the hospitals accountable for injured employees. This was seen in 2014, when the Occupational Safety and Health Administration (OSHA) fined Brookdale University Hospital and Medical Center in New York after several instances of violence to hospital employees were perpetrated by patients and visitors.
However, 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 upon principles of premises liability. Others allow litigants to allege, depending upon the circumstances presented, that the conduct of the healthcare provider was a form of professional negligence. And still other states have adopted the view that an injured plaintiff may assert a theory of general negligence, in which the litigant need only establish (1) that the facility owed the individual a duty of due care, (2) that there was a breach of that duty, often expressed as a failure to exercise reasonable care, (3) that there is a causal relationship between the negligence and the injury and (4) that 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 being 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 then attempt to develop those facts that support the alleged theory or theories of liability as recognized by the statutory and case law of the jurisdiction.
Depending upon the applicable state, questions of foreseeability of the injury and reasonableness of the defendant in operating the hospital are factors to be considered. For example, is the medical center located in an inner-city area with a high crime rate? Have there been other attacks, by whom and when? Did the facility have protocols in place to train security personnel as well as professional staff on what clues might indicate that a problem is imminent as well as policies on what to do given the presentation of a particular scenario? And how do those policies and procedures compare with guidelines adopted by other similarly situated facilities in comparable locales?
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 the event of an adverse event. The contracts may even contain an indemnity provision in which the security company agrees to assume the cost of the defense and pay any monetary damages incurred by the facility in the event of a loss due to the negligence of the service provider.
None-the-less, states are with greater frequency adopting the concept of ostensible agency, in which even an independent contractor can be found to be the agent of the hospital, thereby resulting in vicarious liability for the facility. Medical centers often successfully avoid such claims, and ultimately findings by a jury in subsequent litigation, by posting in common areas such as lobbies and emergency departments that “Emergency department providers, imaging, and laboratory staff and security personnel are independent contractors and are not employees of the facility.” Adopting similar language in Conditions of Admissions is further suggested and may provide added protection in the event of a lawsuit.
When considering insurance coverage, it is further suggested that administrators require that policies of professional and general liability are broad enough to include such claims and also contain an endorsement for vicarious liability.