Keeping the peace

Disruptive and violent patients are a perennial problem in healthcare. Several experts in the field offer HRMR their advice on how to deal with the practical—and legal—implications of the problem.

No risk manager is a stranger to the issue of disruptive patients. Hospitals are especially prone to such problems, which can manifest in a number of different ways.

In a May 2012 white paper on the subject, Managing the Disruptive Patient: A Challenge to Patient and Provider Safety, Barbara Youngberg, a consultant to insurance and risk management brokerage Beecher Carlson’s national healthcare practice, outlined the key characteristics of disruptive patients.

These include showing reckless disregard for their medical needs or the advice of their provider; providing distorted or erroneous information; engaging in abusive, obstructive behavior that undermines their health and the safety of others; and being verbally abusive, disrespectful and confrontational.

Youngberg reported that a study done by researchers at the Veterans Affairs (VA) hospital in Portland, Oregon (Disruptive Medical Patients: Forensically Informed Decision Making, 1992) had determined that behavior which started out as disruptive frequently escalated to more troublesome and violent behavior.

In a hospital setting, the stresses that exist in the wider society can become stretched to breaking point, sometimes with tragic consequences. A 2012 study from the Johns Hopkins School of Medicine in Baltimore highlighted the fact that violence in healthcare settings is a frequent occurrence.

“Workplace violence is a national problem and unfortunately reflects the culture of violence in the US population,” it states. “According to United Nations statistics, the US ranks first in murders and assault among rich, industrialized western countries. Healthcare settings are not exempt and in fact appear to have higher rates of workplace violence than many other settings.”

It adds that The Joint Commission noted significant increases in assault, rape, and homicide in hospital settings from 2006 to 2009.

Why does the hospital setting amplify the tensions that can lead to violence?

“There are several reasons,” says risk expert and futurist Caroline Hamilton of Risk and Security LLC. “One is that people go there when they are sick, distressed and not feeling themselves. It’s not only the patients who behave disruptively; it can also be their family members, who are under stress too. Being in a hospital is like being in a pressure cooker; people can lose control.

“I don’t believe the risk is taken seriously enough by providers, because many hospital administrators are business-oriented and don’t want to think about security.”

She adds that the true extent of the problem can be hard to gauge because a spirit of competition between US hospitals means that they are reluctant to announce violent incidents.

A further worrying point highlighted by the researchers at the Portland VA hospital was that 30 percent of disruptive patients filed formal complaints to a third party about their care. With this in mind, it is vital that clear procedures are in place for handling incidents of disruption or violence.

The legal view

If disruption becomes serious and turns into a criminal case, the police and law enforcement authorities will take the lead on any investigation, and must be promptly involved, advises Kevin Kuhn, a partner at civil litigation firm Wheeler Trigg O’Donnell.

“Most hospitals these days have their own security personnel,” he adds. “Whenever a crime occurs within the hospital, a risk manager needs to be aware that injured parties may look to the ‘non-criminal’—the hospital—for compensation. The risk manager should follow closely what is happening on the criminal side to the ‘real’ criminal, and direct such claims against that criminal or the victims’ assistance fund available in many states. 

“Most important, however, is the need to identify all witnesses involved with the incident, and secure all evidence in connection with the incident—security videos, for example.”

Kuhn says that if such items of ‘evidence’ are taken by the police, the hospital will want those items returned to it or available to it in the event it needs to defend itself in a civil action. 

“After the event, quality assurance and other critical self-reviews can take place to identify what if anything could reasonably have been done to reduce the chances of this event recurring in the future, remembering that the very nature of a criminal act often defies prediction or prevention,” he says.

Although some protections exist in the US to shield the discovery of materials generated by risk management in response to an event, it is a good idea to treat all materials as if they will eventually be seen by a jury, warns Kara Rosenthal, also a partner at Wheeler Trigg O’Donnell.

“Because of patient confidentiality issues, staff members should be cautioned not to speak to the media, post on social media, or communicate outside the organization about the event,” she adds. 

“Additionally, any materials generated by risk management in response to an event should include language that the document is confidential and prepared in anticipation of litigation.  Any witness statements should be objective factual recitations and should refrain from emotional or reactive conclusions.”

Cutting the ties

If a patient’s behavior continues to be problematic even after attempts have been made to rectify the situation, it may be advisable to terminate that provider/patient relationship. This, too, is fraught with legal implications.

According to the AMA Council on Ethical and Judicial Affairs, the patient has the right to continuity of healthcare and the physician may not discontinue treatment of a patient as long as further treatment is medically indicated, without giving the patient reasonable assistance and sufficient opportunity to make alternative arrangements for care.

In addition, the AMA guidelines state: “While physicians have the option of withdrawing from a case, they cannot do so without giving notice to the patient, the relatives, or responsible friends sufficiently in advance of withdrawal to permit another medical attendant to be secured.”

If discontinuation of care is handled badly, the provider could be vulnerable to an abandonment case, whereby the plaintiff alleges the provider or provider organization had a duty to provide care to the patient and failed to do so.

“A duty of care, once it has been established, can be terminated by mutual agreement of the parties, or in some instances, by unilateral action,” writes Youngberg. “However, if the patient continues to require care, the physician’s duty continues until the patient is referred or given time to transfer to another provider or provider organization.”

Prevention is better than cure

In an article on the subject of disruptive patients Hamilton cited the case of a hospital shooting and suicide in which the perpetrator visited the hospital repeatedly in the run-up to the shooting expressing deep unhappiness with the after-effects of his vasectomy, which had been carried out at the hospital.

“This incident makes you wonder—if this man called repeatedly for two years, did they bar him, did the receptionists report to the management that there was a very unhappy customer?” says Hamilton. “It could be advisable to have receptionists better trained to identify a threatening situation or the suggestion of a threat and to report it.”

John Nicoletti, a board-certified specialist in police and public safety psychology, agrees that under-reacting can be an issue—and one that is sometimes exacerbated by the fear of being seen to be over-reacting to a suggested threat.

“However, it is not really possible to know if they over-reacted: if they took action on a concern and nothing happened, was that because nothing was going to happen or because their taking action prevented something from occurring?” he says.

“In this day and age hospitals and medical facilities must take concerning behaviors seriously and activate some type of countermeasure. If they don’t, their lack of action really serves to reinforce the individual engaging in the concerning behavior.”

In general, an individual who is a risk for making an attack will usually progress through early stages of what Nicoletti calls ‘boundary probing’. 

“Hospitals should take action and initiate a disruptor at the boundary probing phase,” he advises. “This action usually serves to pre-empt the event.”

Nicoletti recommends that hospitals have in place specific protocols for the following phases:

• Pre-event threshold actions: what they do before someone gets on their radar, which is really prevention procedures;
• Event threshold actions: what they do when someone does get on their radar;
• Event horizon actions: what they do when an individual engages in an attack behavior; this is usually referred to as ‘active shooter protocols’; and
• Post event horizon actions: what they do to recover from an incident.

Security measures

An issue that frequently emerges when discussing the problem of disruption and violence in hospitals is the presence—or more commonly, the lack—of visible security measures.

According to Hamilton, two major issues are inherent in this problem. One is access control—many hospitals have totally free access. Coupled with the relatively relaxed gun laws in the US, this creates the very real danger of an armed individual walking straight into the hospital.

The second issue is the question of what can be done to prevent a problematic situation escalating into something worse. Most hospitals, she notes, do not want armed guards.

“They don’t want to think about the issue,” she says. “A lot of people at management level want a good reputation, so they don’t want people to walk in and see a security guard at the entrance to the hospital—they feel like it sends the wrong message.”

Hamilton believes that more hospitals should follow the example being set by a number of hospitals in Florida, where conspicuous security measures are in place, including photographing visitors when they enter the hospital, requiring that they hand over their driver’s license or passport, and getting them to pass through a metal detector.

“Hospitals are all very different—some have never had a problem and probably never will; with others you see a pattern in the community where it’s getting more violent. For them I think it’s a good idea to have those cameras monitored,” she says. “The use of metal detectors is very important—if you can walk in with a gun that’s not good. Metal detectors don’t inconvenience people that much and they can save lives.”

Andrew Efaw, a partner at Wheeler Trigg O’Donnell, agrees that it is important to control access, as is routinely done in labor and delivery wards to prevent infant kidnappings.

“Invitations to the local law enforcement establishment to ‘stop by’ the hospital may inhibit development of criminal behavior,” he adds. “Security videos, while not a direct prevention tool, can be a powerful investigatory tool, although the privacy rights of patients run contrary to ‘a camera in the patient’s hospital room’. Security videos that may show the intimate aspects of medical care should not be available for public review.”

Ultimately, he notes, any increase in security is generally a trade-off for individual freedoms. “This is true in a hospital setting too,” he says. “As a society and as hospitals, we have to decide what the proper balance is.”

Keeping track

Recognising that violent and disruptive incidents often go under-reported, Hamilton has set up a regular bulletin of security incidents that can be distributed to hospital staff members to increase their situational awareness. 

“I see security officers who know all this and are very smart and very situationally aware, but they have trouble getting the message out, especially to the clinical staff and the administration, to make them also aware that these things happen,” she says.

“I hear about these incidents—some of them high profile, but others that people don’t know about—so I thought it would be a good idea to record them and send them out as an alert. If you receive a steady diet of incident reports it can serve as a security awareness program.”

Such alerts serve to emphasise that, while hospital shootings are thankfully rare, disruption and violence are not. As the 2012 study from the Johns Hopkins School of Medicine in Baltimore observes, the very nature of hospitals with their continual flow of patients and visitors means that “zero risk is not achievable”. However, by staying aware of the nature of the risk, and the legalities surrounding it, damage can be minimised and many problems can be prevented.

Above all, it is important to take the risk seriously. “My main message to risk managers would be that if someone broadcasts that they are going to be violent or disruptive you need to believe them,” says Nicoletti. 

“Do not get into ‘tea leaf reading’ where you are making statements such as ‘I don’t think this person would do anything’ or ‘the individual was just joking, or frustrated, etc’.” 

 

Terminating the patient relationship

Managing disruptive behavior is both a risk management and a patient safety challenge,” says Barbara Youngberg of Beecher Carlson. “However, once a detailed process is in place to manage disruptive patients, the risk of liability is significantly reduced and providers feel supported and patients feel safe.”

She recommends that risk management and legal staff should answer the following questions prior to terminating the patient relationship:

• Was the acute condition manifested by the patient stabilized prior to terminating the provider/patient relationship or transitioning care to another provider?
  Has the physician ruled out any other underlying medical conditions that may be the reason for the disruptive behavior? Has this assessment process been thoroughly documented?
• Was a proper notice period afforded to the patient (this is generally 30 days) to give ample time to seek care from another provider? Be advised that some health plans may have specific requirements for longer notification times such as 45 or 60 days.
• If there is an emergency/urgent situation during the notice period, has the physician been advised that he/she is still obligated to treat the patient?
• Is documentation of all conversations and communications supporting the decision by the provider to terminate the provider/patient relationship included in the medical record? Early communications along with final provider/patient agreement should be included.
• Does the entire termination process reflect the organization’s policies and procedures? Although use of a standardized letter or template may not be appropriate, all correspondence should reflect the organization or group practice’s policies and procedures.
• Have all contractual responsibilities regarding obligations to treat and prohibitions against automatic release from care been met?
• Are there geographic limitations that make it difficult for patients to identify alternative sources of care or a specific type of specialty care that may be required? Forcing a patient to seek care which is not local may present financial and health burdens for the patient. In this situation, the notice period may be insufficient to limit liability for abandonment. Providers in this situation should proceed with caution.