|
There appears to be a rise in security litigation within the health care industry over the last two years. Does this mean there is a rise in hospital crime? Does the increase in litigation reflect a public that is more likely to bring a lawsuit? It is difficult to know for sure. It could be a combination of the two. Some of the content of this article is anecdotal; however, it is probably representative.
We, at SMSI, have seen cases ranging from kidnapping to homicide. We have also been involved with cases alleging the attack of patients in their beds. One litigation found the hospital having to defend the use of restraints and a claim of excessive force by emergency room personnel. Damages sought in these cases range from $50,000 to $23,000,000.
There are a number of factors common to most of these cases that are worth noting. Most of these cases have not occurred in inner city hospitals that are located in excessively high crime areas. It almost all cases, the criminal activity causing the litigation was a first time event. In all cases, training was a major factor as well as the documentation of security activity, both of the event in question, as well as the pattern and practice of security documentation preceding the event. In most of these cases, the incident that produced the lawsuit was covered in the media.
What is meant by the headline, Falling Below the Radar Screen?
Most lawsuits resulting from criminal activity in and around the hospital bring considerable negative publicity to the affected hospital. Most hospitals want to get these events off the front pages as quickly as possible. This fact alone provides plaintiff attorneys with significant leverage, even when culpability may be minimal. Therefore, many of these cases settle, even when there is a high probability that a jury trial would produce a defense verdict.
How does the history of security litigation differ from the history of medical malpractice lawsuits?
When hospitals are on solid ground and truly believe they are not negligent, they will vigorously defend malpractice lawsuits. This is not the case when claims of negligent security are made within the context of premises liability cases. Media attention and the reputation of the hospital clearly come into play. Medical malpractice cases are documented in professional journals and law publications. The documentation of Sentinel events is required by JCAHO. Because many medical malpractice litigations are published in various professional journals, all hospitals are able to learn from the errors of a few as the result of a shared knowledge and experience base.
However, in the case of security litigation, the motivation is to minimize publicity, and dispose of the case quietly. Because of this practice, the knowledge and experience base is not available to the hospital community as a whole. Hospitals are less likely to learn from the errors of a few when it comes to security-derived lawsuits hence mistakes are repeated.
We have been involved in approximately 15 security-derived lawsuits against hospitals in the past year. Most all of these lawsuits were preventable and a comprehensive security assessment would have probably detected the vulnerability.
What can be done to reduce security liability exposure at your hospital?
First, have a qualified professional conduct a complete security assessment. Make sure the assessment considers the prior three years' incident history. If your hospital received a favorable score on your last JCAHO inspection, do not assume your exposure will be reduced. An unfavorable JCAHO evaluation of the security program will be harmful when defending a security lawsuit. However, a favorable result will not shield your hospital from exposure.
Make sure all security personnel are properly trained and the training is fully documented, including competency testing. Be sure that as part of any new employee orientation program, there is a security component. Initiate and maintain a Security Awareness Program that involves all employees. Be sure you can defend all components of your visitor program. Make sure the access management policies are appropriate to your hospital. Be sure all security incidents are properly documented, and that security personnel are competent report writers or that you are using a computer-based incident tracking system. It is important to address the special security requirements of L & D and postpartum, the ED. Psychiatric units, pediatric units, and drug rehabilitation units. Be sure you have a defensible lock and key control program. Be prepared to defend the application and design of your physical security program including CCTV, card access systems, alarm systems, and exterior lighting design. Review all security related policies and procedures to ensure relevancy. Have your security program reviewed by corporate legal and/or risk management. Watch for regulatory changes promulgated by JCAHO, OSHA, and HCFA.
If your hospital is using contract security personnel, contractually protect your hospital so that the contractor will not turn on you in the face of a lawsuit. Be sure to document the pro-active, preventative practices implicit in your security program. When security incidents occur, take and document corrective action. This is just a brief summary of some mitigating practices. Be pro-active. Reaction is two to three time as costly as pro-action. Finally, do not assume "it will never happen here."
|
