Malpractice Consult

When a patient might become violent

By Lee J. Johnson, JD

Q: One of my patients has a history of violent behavior and once threatened a member of my staff. I often must refer this patient to other doctors or clinics, and hospital admission is always a possibility. While she has never attacked any of my staff, should I warn others of her tendencies?

A: Yes. The duty to warn others of a potential attack is well established in the law, and it may apply even when that means violating the patient's confidentiality.

You also have every right to discharge this patient from your practice as long as you provide her with adequate notice, assistance in finding another appropriate physician, and any urgent care she might need until she finds another doctor.

However, if you continue to treat her, you must inform your staff to take reasonable precautions. Those might include scheduling the patient only when you or other physicians are present; making sure that no one is left alone with the patient; avoiding behavior or comments that might provoke the patient; and having a contingency plan in place, such as deciding under what circumstances police or security guards should be called.

You should also inform other doctors, medical personnel, clinics, and hospitals whenever you refer the patient. Doctors owe a general duty to warn third parties of potential harm and the need to use reasonable prudence when dealing with such patients. In an inpatient environment, that might include discussing whether restraints should be employed.

If your patient injures another health care worker, he could sue you for failure to warn him of the potential danger. The case probably wouldn't be a medical malpractice action, but rather an ordinary negligence suit that asks: How would a "reasonable" person behave?

The New Hampshire Supreme Court recently ruled that a doctor and hospital had a duty to warn a phlebotomist about a patient's history of violent behavior. The patient, a 76-year-old man, had been admitted to a hospital rehabilitation unit for treatment of a stroke. The unit's director noted in the chart that the patient was becoming increasingly agitated, pushing aides and threatening to kick or hit nurses and therapists.

But no one warned the phlebotomist. She twice drew blood from the patient without incident. The next time, however, the patient assaulted her and injured her left arm. The phlebotomist sued the hospital and treating physician, arguing that they had breached their duty to warn her about the patient's behavior. A jury found in her favor, and the state's high court affirmed the verdict.

The progress notes detailed numerous prior episodes that should have put the defendants on notice that the patient was a threat. Generally, to establish a duty to warn third parties, the potential for harm must be reasonably foreseeable. The court held that such potential clearly existed in this situation.

In your case, your patient's violent history establishes a duty to warn. If your patient made a specific threat about a doctor to whom you made a referral, you absolutely must warn that doctor. If the patient has a general propensity toward violence, especially if it has been demonstrated toward a health care worker, you also have an obligation to protect those workers from potential harm.

The author, who can be contacted at PO Box 37, Mount Kisco, NY 10549, or at ljohnson@ehealthsg.com, is a health care attorney and vice president of eHealth Solutions. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2001;7:125.