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Hospitals are not unlike any other business when it comes to Security related litigation. They are exposed to many of the same vulnerabilities. The exposure might actually be greater because of the openness of most hospitals. Hospitals are also held to a higher standard of care, especially for acts committed against patients, because of their need for protection and care and their inability to protect themselves. I would like to take a few moments to give you the benefit of my experience as a security consultant who has advised attorneys in over 100 cases. Let us first define some of the problems, and then offer some solutions.
As with many other businesses, hospitals are increasingly at risk for several reasons. First, we are seeing an expediential rise in crime on hospital property over the last several years. There was a time when criminal elements considered the hospital to be out of bounds. This is no longer the case. Second, we are beginning to see an increase in assaults against health care workers. This increase also applies to innocent third parties. Third, as more and more hospitals treat indigent patients, many of the problems that have become the norm in public facilities will increase in private facilities. Fourth, hospital grounds and buildings are rather porous and do not maintain strict access control. Finally, risk in terms of financial exposure will increase in those hospitals that fail to adjust to the increasing level of the standard of care.
If we look at the information provided in the OSHA Guidelines for Health care Workers, we find evidence of a standard of care. Further foundation for a standard emanates from the new JCAHO standards. Finally we have the additions to the Health & Safety Code in California. All of these sources, separately and jointly, provide a minimum standard against which any hospital in the country may be judged. If someone claims that your security program was negligent and the proximate cause of injuries as the result of a criminal act, how confident are you that your security program is up to standard? Often times, lawsuits are not filed for a year after an incident has occurred. When they are filed, the discovery process may subpoena security documents for a year or more prior to the incident. Because of these two factors, there is very little that damage control can do after the fact. If you believe that your security department could withstand the intense scrutiny of a lawsuit, then don't waste your time reading this article.
Security departments can be sued for two reasons: (1) for what they do, and (2) for what they don't do.
(1) If someone is raped in a parking facility, the lawsuit will claim negligence. The suit will contend that the hospital should have anticipated the rape and did not reasonably prevent it.
(2) If a security officer uses unreasonable force and/or falsely arrests someone, they may also be sued. The claim in this example could be any or all of the following: negligent training, negligent hiring, negligent supervision and/or negligent retention.
In the more than 100 cases I have been involved in, there have been two factors that, one way or another, had an impact on the case. Those two factors are training and documentation. In every case, the training of any personnel who may have played a part in the incident came under intense scrutiny. This scrutiny includes both security as well as non-security personnel. For example, if Emergency Department personnel are not adequately trained in Management of Aggressive Behavior, the level of liability could easily be adversely impacted in the event a visitor was assaulted by a third party within the ER.
Let's take a closer look at training. What constitutes adequate training in security litigation cases? All too often security departments provide what I call symbolic training . That is, training programs that may look good on paper in order to meet some standard, but lack substance. The best way to expose an inadequate training program is to put the affected security officer on the stand and ask him or her direct questions in order to expose his or her level of competence. If your security officers' training program consists of watching video tape for a few hours here and there, you're in trouble. If your entire security training program relies on generic material and is not site-specific, your hospital is at risk. If your training program is not interactive and does not provide for the documentation that learning is actually occurring through test results, your ability to successfully defend has been compromised.
Although some generic training is OK, it should only be supplemental. Every hospital should develop and conduct interactive classroom as well as field training programs that are designed to meet the specific needs of each facility. The training must be fully documented as to curriculum, attendees, and test results along with a certificate of completion upon successful completion. The training program should provide for some base-line training of all employees in the security department as well as supplemental and refresher training on an ongoing basis. Non-security personnel who may have to deal with various levels of aberrant behavior, must also receive appropriate training. This group could include intake clerks, ER personnel, L&D personnel, triage nurses, and receptionists.
Clearly, the best antidote for avoiding security litigation is to insure proper training. The training standards adopted for proprietary security officers must be demanded of contract guards as well. The hospital cannot escape liability by assuming a contract agency will meet all standards of care. Many, in fact most, lawsuits will enjoin both the hospital and the contract agency.
The topic of documentation is addressed in the Computer Phobia article of this newsletter.
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