Can Plaintiff Attorney Convince Jury That ED Security Was Poorly Trained?
During a deposition for a lawsuit involving a psychiatric patient who eloped from an ED, a security officer testified that he had been stationed outside the patient’s room and instructed to observe the patient. When the plaintiff attorney asked, “What were you watching for,” the security guard responded, “Well, I’m not really sure. They just told me to watch him.”
Such responses make it appear ED security were trained poorly and ill-prepared, strengthening the plaintiff’s “excessive force” case, warns John M. White, CPP, CHPA, president of Protection Management, a Canton, OH-based security consultant firm.
When White is retained as an expert witness for the plaintiff, he looks for evidence that security officers lacked appropriate training and/or failed to follow industry best practices or guidelines.
“Sometimes, management thinks everything is great, but when you start reading the depositions of security officers, you find out they are not quite following departmental or hospital policies,” White explains. That helps plaintiff attorneys build a case against the hospital for negligence or improper retention.
With aggressive behavior in EDs on the rise, White sees more lawsuits alleging “excessive force” was used on patients. “There are a lot of things you can do to reduce the risk of litigation,” he says. These factors can limit the plaintiff’s ability to allege security used excessive force or were poorly trained:
- Post-training competency evaluations.
“It’s so easy to check the competency of a security officer after training,” White notes.
- Evidence that security officers followed industry best practices or guidelines.
A recent case involved a patient brought by law enforcement to an ED, who asked to go outside to smoke. The request was refused, as the patient was determined to be a danger to himself and others. Security tried to verbally redirect the patient. “But he tried to force his way out of the ED,” White recalls. “The patient rushed the security officer.” Both fell to the ground, resulting in minor injuries to the patient.
A case was brought against the hospital for excessive force. The claim was unsuccessful, since the security officers followed hospital policy and state law to the letter. “They did everything right and had the documentation to prove it,” White adds.
- Documentation as close in time to the incident as possible.
The plaintiff attorney might realize that officers were trained properly and carried out their duties the right way. “Once they go through the discovery process, they may see there is nothing really to go after,” White says.
- Video footage of the incident.
After restraining a violent ED patient, security saved video footage of the case, anticipating the possibility of litigation. “They figured it would probably come into play — and it did, almost three years later,” says White, adding that the hospital’s policy is to hold video footage for 30 days before it’s automatically erased. “That’s someone who was thinking ahead and wanted to make sure evidence was retained.”
Without a video record of what happened, protracted litigation would have been likely — and possibly, a judgment against the defendant. “Instead, it answered a lot of questions,” White says. “It likely eliminated several potential avenues for the plaintiff’s lawyers to pursue.”
Much ED video footage is maintained for only a short period. This can become problematic for the defense. Michael T. Belisle, JD, an attorney at Portland, OR-based Lewis Brisbois, explains: “If the plaintiff can say there should have been footage but somehow it’s missing, they can avail themselves of a whole host of remedies.” These range from a jury instruction to making a negative inference of some kind.
For instance, the plaintiff attorney might engage in this line of questioning: “There is a camera overhead and footage everywhere else in the ED. Why don’t you have it here?”
“If they can create an inference that evidence was tampered with, it’s never going to help your case,” Belisle warns.
Take Use of Force Seriously
Christine Lynch-Tock, BSW, MSW, senior risk resource advisor in the Champaign, IL, office of ProAssurance, notes that The Joint Commission requires accredited healthcare facilities to train staff in the use of “non-physical intervention skills,” possibly preventing the need to restrain agitated patients.
“Oftentimes, litigation is based upon not following the standard of care and appropriate policy or procedure,” Lynch-Tock notes.
Michael Cummings, CPP, past president of the American Society for Industrial Security and senior vice president of security and loss prevention at Aurora Health Care in Milwaukee, suggests these steps to reduce liability risks involving training of ED security officers:
- Ensure staff are adequately trained, with competency assessed, for any use of force permitted.
For instance, if the organization permits use of handcuffs, there must be corresponding training on the circumstances that permit it and where it lies in the use of force continuum. “This is necessary to demonstrate that the specific use of threat level was justified,” Cummings explains.
- Train staff in proper documentation.
Since litigation often occurs months or years after an incident, witness statements, recordings of calls for assistance, and video can strengthen the defense. “Is there a well-written report that articulates what force was used and why? The more significant the use of force, the more important this becomes,” Cummings says.
- Perform ongoing quality assurance.
Documentation that even minor errors were addressed as needed, whether with a simple review of a procedural element or complete retraining, is helpful. Evidence that negligence, if identified, is addressed with formal disciplinary action, “goes to the heart of the organization taking use of force very seriously,” Cummings says.
SOURCES
- Michael Cummings, CPP, Senior Vice President, Security & Loss Prevention, Aurora Health Care, Milwaukee. Phone: (414) 299-1757. Fax: (414) 299-1756. Email: [email protected].
- Christine Lynch-Tock, BSW, MSW, Senior Risk Resource Advisor, ProAssurance, Champaign, IL. Phone: (217) 355-6946. Fax: (205) 868-6396. Email: [email protected].
- John M. White, CPP, CHPA, Protection Management, Canton, OH. Phone: (877) 686-5460, ext. 1. Email: [email protected].
Training gaps might become obvious at deposition.
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