Violent Attacks in Psychiatric and Other Hospitals
Slovenko, Ralph, Journal of Psychiatry & Law
Violent attacks in hospitals on staff, patients, or visitors is increasingly a matter of concern. While the actual number of attacks in hospitals is inexact-there is no national reporting system by which hospitals in general, or psychiatric facilities in particular, must report incidents of violence -it is considered to be extensive. According to the Department of Justice's National Crime Victimization survey, mental health professionals rank seventh and mental health custodial workers rank tenth in the occupations most at risk for violent workplace crime. Other statistics reveal that more assaults occur in health care and social services than in any other industry. In U.S. public sector hospitals, risk of injury to staff from assault is higher than risk of injury from all causes combined in construction, agriculture, mining, manufacture, and transportation.1 A report of the Veterans Administration states that in the United States health care workers experience the highest rate of injuries from workplace assault.2
The Occupational Safety and Health Administration (OSHA), a federal agency charged with protecting the well-being of workers, requires reporting of workplace-related injuries-these statistics only reflect workers and do not include patients as victims. OSHA was enacted in 1970. Its data of the past decade reveals a total of 106 workplace-related homicides in hospitals. The type of workplace is not delineated -it includes hospital inpatient as well as outpatient and community settings, and is not specific as to psychiatric hospitals.3
Beginning in 1986, the International Association of Hospitals Security Survey has compiled crime statistics in hospitals. The reporting is voluntary, and the number of participating hospitals varies each year. During the last decade, the number of physical assaults per hospital has varied from a low of 2.41 to a high of 8.43. As with OSHA data, the type of hospital is not spelled out.
The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) accredits most acute care hospitals as well as behavioral health facilities. Through its Sentinel event reporting system, data is collected on unexpected deaths occurring in hospitals. Most of the reports involve medical errors and patient suicides. Homicides are not singled out. Also, the reporting system is voluntary. Consequently, hospitals may choose not to report, as the information shared with JCAHO becomes public information and could be used against the facility in civil proceedings or accessed by the media. Facility licensing authorities may require reporting of patient deaths. However, this varies from state to state and no national repository of data is available.
If anything, the data on the incidence of violent attacks are under-reported. Internal incident reporting is protected from discovery, and therefore does not become public record. To avoid negative publicity, hospitals often cloak incidents of crime by not reporting it or by using confidential reporting mechanisms. The result is that the picture of hospital crime is skewed. The general sense, however, is that violent attacks in hospitals are increasing, particularly in psychiatric hospitals given the widespread use of illicit drugs and the institutionalization of individuals who are deemed to pose a danger to others.4
Most aggressive behavior is verbal rather than physical, indirect rather than direct, passive rather than active, except at the service delivery interface. Studies on assaults in hospitals tend to focus on the service recipient rather than the service provider as the source of the problem. Frustrating situations such as a denial or delay of needed or desired service, or invasion of privacy or personal space, may bring about aggressive behavior. As one patient put it, "Do I have to hit someone in order to be seen by a doctor?"
Attacks in psychiatric facilities
In fiction, the mental hospital is the last place to be for treatment of emotional disorders. One of the most famous portrayals is One Flew Over the Cuckoo's Nest (1975), in which patients attack staff and staff resort to electroshock (ECT) to achieve a sense of order as well as for treatment. To be sure, assaults on patients by staff, often out of provocation or aggravation, are not uncommon, but attacks on staff by patients or on other patients are rarely, if ever, depicted, yet they occur with more frequency. Several studies of patients attacked by other patients reveal a homicide rate approximately twice that of the general population, mainly caused by patients with substance abuse and schizophrenia.5
Surveys that have been conducted on attacks on psychiatrists and staff members, by and large, are limited in that they tend not to distinguish the inpatient and outpatient setting, and they also tend not to define the nature of the attack.6 Assaults on staff occur primarily when the staff attempts to medicate the patient. A study in Washington revealed that 60 percent of workers' compensation claims in a state psychiatric facility were due to assaults.7 In a survey of 115 psychiatrists on the University of Maryland faculty, 41.7 percent reported having been attacked.8 Forty-two percent of the psychiatrists in a sample of psychotherapists in the San Diego area reported having been attacked by patients.9 In response to a questionnaire, 20.2 percent of 391 Philadelphia psychiatrists reported having been attacked.10 In a national survey, 3.2 percent of 156 psychiatrists reported having been attacked by outpatients." In a survey of members of the American Academy of Psychiatry and Law, three percent reported having been attacked in connection with their involvement as expert witnesses in forensic cases.12 Following the killing of two Oregon psychiatrists in 1985 (one on a general medical inpatient ward in a community hospital and the other in his private office), the Oregon Psychiatric Association established an ad hoc committee which found that 11 percent of its members had been attacked by a patient with a result serious enough to require medical attention.13
According to the late Dr. Shervert Frazier of Harvard Medical School, some 300 physicians have been murdered in a period of 25 years, with surgeons being the most frequent victims (psychiatrists per capita top the list). Frazier points out that surgeons "cut and hurt people" and revenge is taken when the results of surgery are not what was expected.14
Those who make serious attacks on surgeons or other physicians tend to be mentally disturbed, even psychotic, just as those who attack psychiatrists. However, it is not surprising that psychiatrists are attacked as they commonly confront violent persons, or persons who are often paranoid or hallucinating. They are expected to be prepared for the aggression.15 At Kingswood Hospital, a psychiatric facility in Michigan, assaults decreased dramatically when able-bodied attendants were posted in the wards.16 Nurses are the most frequently assaulted in psychiatric or other hospitals, as they have the task of setting limits on patient behavior and administering medication.17
Given the unique considerations, the following discussion focuses on legal actions that may be taken against patients who are assaultive in psychiatric hospitals.
Crimes committed in psychiatric hospitals by patients are usually not prosecuted-irrespective of whether the patient is diagnosed with a personality disorder or as psychotic. In a survey conducted in Boston that included 15 psychiatric inpatient facilities, an attempt was made to ascertain how frequently psychiatric facilities pursued criminal prosecution against patients who committed assaults. Only 5 of the 15 hospitals reported that they had initiated criminal proceedings against a total of 9 patients. Of these 9 cases, 4 were found guilty and one was imprisoned, as the assault constituted a parole violation. Two were committed by the court following the assault. There were no homicides in this study, but a sexual assault case was successfully prosecuted. In one of the cases, the prosecutor refused to pursue criminal prosecution, under the assumption that the psychiatric patient would, by nature, be prone to assaultive behavior."
The question arises: Is a psychiatric patient as a result of his or her status legally competent with regard to the commission of a homicide or other offense? In a rather wooden fashion, the legal issue of insanity, or nonresponsibility, is determined by the patient's status. Patients who come to the hospital voluntarily are regarded differently than those who have been committed via a civil or criminal proceeding. As to the latter, in a decision often cited, it was said, "A person found insane as to one time cannot be held to be sane at a subsequent time unless and until there is compliance with the statutory mandates relating to release from commitment."19
In a prosecution of a patient who was discharged from a mental hospital but later returned to carry out a homicide there, the offender pleaded not guilty by reason of insanity (NGRI) but was found sane and convicted. In this case, the offender was not a patient at the time he committed the offense.20 In the usual case of an inpatient committing a homicide, when there is a prosecution, the outcome is NGRI.21 Moreover, the patient may be found incompetent to stand trial.22
In State v. Cummins," after a complaint was filed by a hospital attendant, the patient was charged and convicted of disorderly conduct under a statute that provided: "Any person who by noisy or disorderly conduct disturbs or interferes with the quiet or good order of any place of assembly, public or private, including schools, churches, libraries, and reading rooms, is a disorderly person." The patient, who was diagnosed as suffering from "manic depressive illness, manic type," was involuntarily committed to the state hospital. There, he repeatedly uttered racial epithets, was over-talkative, and belligerent. The conviction was overturned on appeal, as the court found that the statute was inapplicable to the mental hospital. It said, "To convict the involuntary committed of a quasi-criminal offense for displaying symptoms of his illness while in a place intended to treat that illness, and upon the complaint of one whose duty is to have the care and custody of such a patient, imposes punishment where none can either constitutionally or morally be justified. The application of the statute to this defendant under the facts presented not only constitutes a misapplication of the statute but constitutes an unconditional infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."24
Instead of or in addition to pursuing a criminal prosecution, an injured patient may bring a tort action for damages against the hospital (or offending patient) for damages. Acquittal of a defendant in a criminal trial is not fatal to a civil action. As demonstrated by the much reported OJ. Simpson case, or more recently the case of Robert Blake, recovery of civil damages requires a less demanding burden of proof, 51 % vs. 95%, and substantial awards may be obtained even after a jury fails to find criminal liability.
Under the traditional tort doctrine of premises liability, a victim of crime on the premises has a cause of action against the owner of the premises. The owner of the premises has a duty to reasonably make the place safe for those who work or visit there.25 Moreover, under OSHA, employers are required to provide employees with a place of employment that is free from recognized hazards that cause or likely to cause death or serious physical harm. Tort law and OSHA, however, do not require an owner to act as an insurer or provide a flawless security system. It is for the jury to determine whether an owner has acted reasonably.26
Liability claims against health care facilities often include claims of negligent hiring, supervision, or credentialing in addition to the traditional theories of medical malpractice. Plaintiffs may allege that the hospital knew or should have known of an employee's propensity for the type of conduct that caused injury. A sensational example of such litigation arose out of the "Angel of Death" murders perpetrated by a nurse/technician responsible for multiple patient deaths at more than a half dozen hospitals.
A hospital (or staff member) may be held liable for malpractice for failure to exercise due care in preventing an assault upon a patient. Appropriate remedies to protect against a patient who may be violent include medication, one-on-one supervision, seclusion, restraint, or video surveillance.27 Computer-based advisories that alert clinicians to a patient's risk of violence have been in use for many years within some facilities. Discharging the patient may constitute "negligent discharge" or "abandonment" and result in liability, as the patient may cause harm to persons outside the hospital.28 For example, in one case, an injured party obtained a substantial judgment against a private sanitarium and a psychiatrist for premature release of a patient with aggressive tendencies. The patient, who had attacked his wife, had been committed to a state mental hospital and was transferred shortly thereafter to a private sanitarium where he stayed for four months. Both of his confinements were uneventful, and the patient appeared to have recovered. Shortly after discharge, however, during a conference with the plaintiff-who was the patient's wife's attorney-the patient leaped across the desk, grabbed the attorney's head and actually bit off a substantial part of his nose.29
In the event that harm is caused to a patient by another patient or by a third party, the hospital is cast as the party defendant as it has the "deep pocket" to cover claims. The patient causing the harm may be joined as a party defendant, but usually the patient, particularly a psychiatric patient, is without liability insurance or personal assets. In University of Louisville v. Hammock,30 a patient brought an action against the hospital for a beating he received at the hands of a fellow patient, who was suffering from delirium tremens. The hospital had been aware of the patient's violent nature and posted a female nurse in his room as a guard. The hospital was found negligent for having breached its duty to provide safe conditions-one female nurse was deemed insufficient protection.31
Overcrowding or understaffing in an institution is no defense. In an action brought by a patient in a state mental hospital for injuries suffered as a result of an attack by a fellow patient, the court recognized that the hospital was negligent in failing to have an adequate number of personnel to provide its patients with the safety due to them. Insufficiency of attendants in a mental institution is deemed to be an act of negligence.32
The duty of care owed to patients in general is also owed to visitors. Institutions may seek to make it clear to visitors that they enter at their own risk, but such a warning cannot serve as a shield or licence for negligence. The doctrine of informed consent which transfers the risk of injury to the person who knowingly agrees to run that risk do not necessarily protect the party who gives the information from liability for negligence."
Of course, to hold either a hospital or a psychiatrist liable, it must be shown that the hospital or psychiatrist were in fact negligent and that this negligence was the proximate cause of the injuries sustained. Neither is required to ensure a patient's well-being, but, rather, each is held only to a duty of reasonable care to protect against foreseeable occurrences. Thus, the hospital was found not liable in a case where a patient, while in a work party of 17 patients supervised by only one attendant, was struck by a fellow patient and suffered the loss of an eye. The court found that the hospital had no knowledge of the violent character of the assailant and that the act had occurred so suddenly that even additional attendants would have been unable to prevent the injury.34
What about the right of recovery against a hospital for monetary and other damages that a patient has suffered as an outcome of his or her own injurious behavior? In a case that fiction could hardly match, James Vattimo, a juvenile, was admitted to the Lower Bucks Hospital in Pennsylvania because he exhibited bizarre behavior and an abnormal fascination with fire. He was brought to the hospital by his parents and the local police. At the hospital, he was diagnosed as paranoid-schizophrenic and was placed in a semi-private room under sedation but without supervision. A few hours after his parents left the hospital, he set a fire in the room, causing or contributing to the death of the room's other occupant. He was charged with first degree murder and arson and was prosecuted in a criminal action. He was also joined as an additional defendant in a civil suit brought by the representatives of the deceased patient against the hospital. The outcome of those proceedings are not known.
In a civil action arising out of the incident, Vattimo v. Lower Bucks Hospital," the parents of James Vattimo sued the hospital, seeking damages as a result of the hospital's alleged negligence. They sought recovery for: (1) Amounts expended and to be expended for medical and psychiatric care and treatment (2) Amounts expended to defend James in the civil and criminal actions brought against him as a result of the fire (3) Emotional distress, humiliation, embarrassment, and anxiety. With respect to the claim for damages related to defending the criminal and civil actions, the hospital asserted that it had no duty to protect against harm related to the state's decision to bring a criminal action, and that no authority existed for awarding damages for the defense of a civil action in the circumstances of this case. The plaintiff's view of these damages was that they were merely the foreseeable consequences of the defendant's tortious conduct. A divided appellate court ruled that as a matter of law, the plaintiffs could not recover damages occasioned by the legal process, either civil or criminal, on the principle of injuria propria non cadet in beneficum facientis (one should not be allowed to derive benefit from his own wrongful act), but as to the other claimed damages, the court remanded the case for trial. As a general proposition, the issue of proximate cause is a question of fact for the jury.
What about the right of a psychiatrist or staff member to bring a tort action for injuries inflicted by a patient? In cases where the defendant is institutionalized, the outcome is essentially the same as in cases of criminal prosecution of a patient. In cases where the patient is institutionally confined and the injured party is employed to care for or control him, it is said that such imposition of responsibility would serve no purpose in cases involving defendants "with no control over [their] actions and [who are] thus innocent of any wrongdoing in the most basic sense of that term."36
An analogy is made to the "fireman's rule" according to which a person specifically hired to encounter and deal with particular dangers is owed no independent tort duty by those who have created these dangers. Thus, it is said:37
[W]hat is meant is that it is the fireman's business to deal with that very hazard and hence, perhaps by analogy to the contractor engaged as an expert to remedy dangerous situations, he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid. . . . [T]he fireman should receive appropriate compensation from the public he serves, both in pay which reflects the hazard and in [workers'] compensation benefits for the consequences of the inherent risks of the calling.
A psychiatrist or staff member injured on the premises of a mental hospital is covered by workers' compensation. Generally, workers' compensation provides the employee with three types of benefits: medical, disability, and death. In addition, many states have enacted crime victim compensation funds, which provide financial compensation to certain crime victims. However, recoveries from these funds are often capped.
In an action falling outside workers' compensation, in the aforementioned case of Johnson v. New York City Health & Hospital Corporation,38 the plaintiff brought a wrongful death action against Bellevue Hospital, seeking damages for the hospital's alleged negligence in failing to provide adequate security to protect his wife, a pathologist at the hospital. She was sexually assaulted and murdered in her office by a homeless intruder who had recently been a patient at the hospital. Evidence showed that Bellevue, a 1,000 bed public hospital in New York, treated many patients with antisocial personality disorders. It had over 100 clinics and logged over 300,000 total clinical visits in the year. The psychiatrist walkin clinic logged over 20,000 annual visits, the emergency room about 100,000 visits. The hospital center's physical plant encompassed approximately one million square feet in several separate buildings with numerous entryways. There was also a tunnel that connected the basement of the hospital to the basement of a homeless shelter. The hospital's security system at the time employed 65 to 70 security officers. As a practical matter, the concern with safety had to be balanced against the need for access and movement of patients, visitors and hospital staff. The jury found that the hospital had a reasonable security plan under the circumstances, and that the plan had been meticulously implemented. Thus, it was not held liable.
The reasons that an injured hospital employee may elect not to pursue criminal prosecution are varied. These reasons include: The duration and cost of legal action; negative publicity for the institution; the professional and moral responsibility not to permanently alienate a patient in need of psychiatric treatment from the health care system; and the expectation that the criminal justice system will not wish to prosecute mentally ill offenders.39
In some circumstances, reluctance to prosecute may be overcome by factors including: The public's right to know about safety and crimes committed in the hospital; the potential therapeutic effect on the perpetrator in terms of deterring the future behavior,40 and promotion of health care worker satisfaction and safety.41 Failure to file charges at least on non-psychotic patients is tantamount to giving them a license to commit crimes without any consequences. Moreover, by not prosecuting, and not holding the offender accountable, the offender, in effect, learns that his aggression has community approval.42
There is a disconnect between the law and psychiatry. The mentally ill are exempt from punishment by the defense of "not guilty by reason of insanity," and psychiatrists or psychologists provide excuses for the behavior as expert witnesses on behalf of the accused. On the other hand, in psychoanalysis or psychotherapy patients are urged to pay attention to and assume responsibility for their behavior.43 Psychiatry aims not only to help patients understand the genesis of their illness, but to see the role that they themselves play in creating and perpetuating their own problems. Even in their sickest state, they are presumed to know right from wrong and retain some elements of choice, however small. In the hospital situation, patients who destroy property may be called upon to pay for it.44 The excuse "I can't help it" prevails more in law than in psychiatry.
1. Bureau of Labor Statistics, U.S. Department of Labor (2000).
2. Veterans Hospital Administration (VHA) Directive 2003-048.
3. OSHA began investigating and penalizing hospitals that expose their employees to unreasonable risk of assaults by patients in 1993 as a result of a case that involved a Chicago psychiatric hospital where staff members were consistently exposed to violent patients. Employees sustained fractures, torn cartilage, bites, knee damage, head injury, and contusions from punching and kicking. The patient population included gang members, patients with a history of acting out and past violent behavior, and patients with psychiatric homicidal beliefs and psychotic rage. P.S. Appelbaum & R.J. Dimieri, "Protecting Staff from Assaults by Patients: OSHA Steps In," Psychiatric Services 46(1995):333.
4. B. Eichelman & A. Hartwing (eds.), Patient Violence and the Clinician (Washington, D.C.: American Psychiatric Press, 1995); K. Johnson, "The Impact of Patients with Chronic Character Pathology on a Hospital Inpatient Unit," Hospital & Community Psychiatry 34(1983):842; see also C. Owen et al., "Violence and Aggression in Psychiatric Units," Psychiatric Services 49(1998): 1452; W.R. Dubin & J.R. Lion (eds.) Clinician Safety: Report of the American Psychatric Association Task Force on Clinician Safety (1992).
5. J.R. Hillard, W.W.K. Zung, D. Ramm, J.H. Holland & M. Johnson, "Accidental and Homicidal Death in a Psychiatric Emergency Room Population," Hospital & Community Psychiatry, 36(1985):640.
6. J.D. Bloom, "The Character of Danger in Psychiatric Practice: Are the Mentally 111 Dangerous?" Bulletin of American Academy of Psychiatry & Law 17(1989):241; H. Carmel & M. Hunter, "Psychiatrists Injured by Patient Attack,"
7. L. Bensley, "Injuries Due to Assaults on Psychiatric Hospital Employees in Washington State," American Journal of Industrial Medicine 31(1997):92.
8. DJ. Madden, J. Lion & M.W. Penna, "Assaults on Psychiatrists by Patients," American Journal of Psychiatry 133(1976):422.
9. H.A. Bernstein, "Survey of Threats and Assaults Directed Toward Psychotherapists," American Journal of Psychotheraphy 35(1981):542.
10. S. Hatti, W.R. Dubin & K.J. Weiss, "A Study of the Circumstances Surrounding Patient Assaults on Psychiatrists," Hospital & Community Psychiatry 33(1982):660.
11. W.H. Reid & J.S. Kang, "Serious Assaults by Outpatients or Former Patients," American Journal of Psychiatry 40(1985):594.
12. R.D. Miller, "The Harassment of Forensic Psychiatrists Outside of Court," Bulletin of American Academy of Psychiatry & Law 13(1985):337.
13. L.R. Faulkner, N.R. Grimm, B.H. McFarland & J.D. Bloom, "Threats and Assaults Against Psychiatrists," Bulletin of American Academy of Psychiatry & Law 18(1990):37.
14. Reported in M. Kestenbaum, "Violence afflicts more surgeons, psychiatrists," Health Care News (Detroit), Sept. 24, 1980, p. 1. Dr. Atul Gawande writes about surgical mishaps in his very readable book Complications (New York, NY: Henry Holt, 2002).
15. J.R. Lion, "Training for Battle: Thoughts on Managing Aggressive Patients," Hospital & Community Psychiatry 38(1987):882. Dr. Frank McCarthy, at the time head of psychiatry at the Detroit Osteopathie Medical Center, told of a colleague who had been found dead in the trunk of his car. Dr. McCarthy's theory was that the deceased psychiatrist may have been treating a mobster or other criminal who had confessed one or more murders to him, then got anxious about the disclosure and decided to make sure he would not tell anyone else. As a result, Dr. McCarthy had decided not to hear any such confessions in the future. Reported in M.G. Brock, "Ethics in forensic practice revisited," Detroit Legal News, Nov. 16, 2005, p. 3.
In an article titled "The Illusion of Safety," Dr. Glen Gabbard, medical director of the Menninger Hospital, recounted an assault by a female psychiatric patient. The assault occurred while Dr. Gabbard was engaged in a somewhat incoherent conversation with the patient. The "small, frail-looking woman in her twenties" came at him with several swift karate kicks, one of which hit Dr. Gabbard on the thumb leaving it fractured. Over the next weeks, Dr. Gabbard found himself asking himself, "Was I responsible in some way for the patient's assault?" "Should I have anticipated it?" "Did I provoke it?" It was clear in this case the answer should have been "no" to all three inquiries. G.O. Gabbard, "The Illusion of Safety," American Journal of Psychiatry 161(2004):427.
16. It has been suggested that security officers carry guns to combat the rise in hospital violence. This security dilemma is especially problematic in New York City where guns as well as other weapons are already in the hospital, "but in the hands of the wrong peoplepeople who are often emotionally distraught, mentally disturbed, or drug addicts." J. Johnsson, "Loaded Issue: Should Hospital security Officers Carry Guns?", Hospitals 64 (Sept. 1990):56. It is reported that in the course of a year, as many as one-third of all hospital security officers, represented by teamsters, will miss work because they have either been shot, knifed, struck with lead pipes, or otherwise physically beaten, J. Johnsson, op. cit. supra.
17. see R. Whittington & T. Wykes, "Staff strain and social support in a psychiatric hospital following assault by a patient," Journal Advanced Nursing 17(1992):480.
18. S.K. Hoge & T.G. Gutheil, "The Prosecution of Psychiatric Patients for Assaults on Staff: A Preliminary Empirical Study," Hospital & Community Psychiatry 38(1987):44.
19. People v. Gillings, 568 P.2d 92 at 97 (CoIo. App. 1977). In a rare contrary decision. People v. Lancaster, 503 N.E.2d 990 (N.Y. 1986), the defendant was a patient at a state hospital who attacked a fellow patient while he was sleeping. He repeatedly punched his victim in the head and face with closed fists. Despite attempts to restrain him, the defendant managed to strangle him, repeating that he wanted to kill him. He was found competent to stand trial, and five months later, an indictment was returned for attempted murder in the second degree, assault in the second degree, and assault in the third degree. The grand jury was aware that he was in a mental hospital at the time. The appellate court affirmed a unanimous opinion, ruling for the prosecution. All twelve appellate judges concluded there was no legal reason not to prosecute or convict a patient for committing a crime while hospitalized, even when he was under an insanity acquittal. The case is discussed in S. Rachlin, "The Prosecution of Violent Psychiatric Inpatients: One Respectable Intervention," Bulletin of American Academy Psychiatry & Law 22(1994):239. see also G.J. Maier & S. Rachlin, "Prosecution of Assaultive Patients," in R. Rosner (éd.), Principles and Practice of Forensic Psychiatry (New York, NY: Oxford University Press, 2d ed. 2003), pp. 699704; S.H. Dinwiddie & W. Briska, "Prosecution of Violent Psychiatric Inpatients: Theoretical and Practical Issues," International Journal of Law & Psychiatry 27(2004): 17.
20. see L.V. Annis & C.A. Baker, "A Psychiatrist's Murder in a Mental Hospital," Hospital & Community Psychiatry 37(1986):505. see also F. Cournos, "Staff Reaction of an Inpatient Homicide," Hospital & Community Psychiatry 36(1985):644; B. Ladds, "Homicide in Psychiatric In-Patient Facilities: A Review, a Six-Year Study, and a case Report," Journal of Forensic Sciences 40(1995):440. The civil suit arising out of the incident, Johnson v. New York City Health & Hospitals Corporation, 246 A.D.2d 88, 676 N.Y.S. 38 (1998), is discussed hereinafter at infra note 38.
21. M. Downey, "The Bellevue Murder: Could It Happen in Your Hospital?" Journal of Healthcare Protection, Fall 1989:30.
22. Thus in People v. Anonymous, 71 Misc.2d 8, 335 N.Y.S.2d 358 (1972), a patient at a state mental hospital was indicted for murder of another patient but was found incompetent to stand trial.
23. 168 NJ. Super. 429, 403 A.2d 67 (Sup. Ct. N.J. 1979).
24. 168 N.J. Super, at 434, 403 A.2d at 69.
25. NJ. Schendel, "Patients as Victims-Hospital Liability for Third-Party Crime," Valparaiso Law Review 28(1993):417. In the case of outpatient clinics, the courts have expanded landlord liability for criminal acts that cause injury to tenants or visitors on the premises. In Samson v. Saginaw Professional Building, 242 N.W.2d 843(Mich. 1975), the Michigan Supreme Court held that an office building landlord owed a duty of protection to a person who suffered injuries from an attack by a mental patient in an elevator. Noting that common areas are under the landlord's control, the court held that the landlord is responsible for ensuring that these areas are "reasonably safe for the use of tenants and invitees." As a result of the decision, it was surmised that psychiatric clinics would have difficulty renting office space. Z. DeFries, "Spaced-Out Psychiatrists," Bulletin of New York Psychoanalytic Association, Jan.-Feb. 1982, p. 8.
The ethicist Randy Cohen reports a case where a patient of a psychoanalyst left a session (without indicating that she was upset) and smashed some glass in a public hallway. The building management ruled that the psychoanalyst had to replace the glass and that the patient can never return to the building. Randy Cohen suggested that the building rightly sought recompense from the psychoanalyst, as it would for damage done by a guest at a tenant's party, and that the psychoanalyst may ask for reimbursement from the patient. R. Cohen, "Patient Vandalism," New York Times Magazine, Nov. 29, 2005, p. 26.
26. Experts are called upon to testify as to the appropriateness of the existing security-involving issues such as industry standards and adequacy of hiring, training, supervision, and policies. They are asked to speculate on whether a particular crime would not have happened had different security measures been in place. see Nola M. v. University of Southern California, 20 Cal. Rptr.2d 97 (Cal. App. 1993).
27. See K. Tardiff, Assessment and Management of Violent Patients (Washington, D.C.: American Psychiatric Press, 1989). For a discussion of the pros and cons of seclusion and restraint, see R.P. Liberman, "Elimination of seclusion and Restraint: A Reasonable Goal?", Psychiatric Services 57(2006):576.
28. It has been recommended that an informed consent/contract include a provision that threats towards the treater or staff may lead to termination of treatment. K. Ednie, "Forensic Psychiatry in General Psychiatry," Michigan Psychiatric Society Newsletter, Sept. 2005, p. 11.
29. Vassalo v. Halcyon Rest Hospital, cited in Medical World News, Oct. 14, 1966. see also Merchants National Bank & Trust Co. v. United States, 272 F. Supp. 409 (D.C. No. Dak. 1967), where Veterans Administration hospital doctors ignored indications of the seriousness of a mental patient's illness and placed the patient at a ranch, from which the patient departed and killed his wife. see also Underwood v. United States, 356 F.2d 92(5th Cir. 1966). This case involved the negligent release of a mentally ill airman who had been hospitalized and had been known to have attacked his estranged former wife; the Air Force then assigned him to duty where he had access to firearms with which he shot and killed her. In Higgins v. State, 43 Misc.2d 793, 252 N.Y.S.2d 163(1964), negligence was found in allowing a state hospital patient to leave the hospital grounds without permission, and such negligence was deemed the proximate cause of injuries sustained by a young boy, who was beaten by the patient. On the other hand, no liability is imposed for an honest error in judgment in releasing a patient into the community. Thus, in a New York case, the state was not held culpable for the violent actions of a state mental hospital patient on leave, inasmuch as qualified physicians of the institution had judged the patient to be sufficiently controlled to be able to go home for a specified period. Orman v. New York, 37 App. Div.2d 674, 322 N.Y.S.2d 914 (Sup. Ct. 1971).
30. 127 Ky. 564, 106 S.W. 291(1907).
31. Some other cases may be noted. In McCall & McCall v. Dept. of Health & Rehabilitative Services, 536 So.2d 1098 (Fla. App. 1988) a state hospital patient brought suit against the State Department of Health and Rehabilitative Services alleging failure to warn about the danger posed by a patient who had pushed her down and fractured her hip. The department was held to have a duty to warn a hospitalized patient that she would be exposed to a patient with a known history of assaultive behavior. The court also found the department had an obligation to supervise the assaultive patient adequately. see Annot., 48 A.L.RJd 1288 (1972).
In Texas Department of Mental Health & Retardation v. Lee, 38 S.W.3d 862 (Tex. App. 2001), a female patient sued the state, state hospital, and state officials under the Texas Tort Claims Act and the state's "patient's bill of rights" statute, seeking recovery for sexual assault committed against her at the hospital by a male HIV-positive patient. The court ruled that the state had immunity from suit for violations of the "patient's bill of rights" statute, and the court also did not allow recovery under the Tort Claims Act. The court held that lack of a locking device between the men's and women's wings and failure to lock interior doors to female patients' rooms did not proximately cause the sexual assault, and thus the female patient could not recover under the tort claims provision relating to personal injury caused by a condition or use of tangible personal or real property. The court ruled that the Texas Tort Claims Act for personal injury or death caused by condition or use of tangible personal or real property requires more than mere involvement of the property; there must be a close causal relationship between the condition or use of the property and the resulting injury. In dissent, one judge disagreed with the majority's conclusion that the plaintiff failed to allege facts sufficient to show waiver of immunity due to use, nonuse, or a condition of property.
32. Luke v. State, 253 App. Div. 783, 1 N.Y.S.2d 19(1937). see also Rossing v. State, 47 N.Y.S.2d 262 (Ct. CL. 1944); Gould v. State, 181 Misc. 884, 46 N.Y.S.2d 313 (Ct. CL. 1944). In contrast, the U.S. Supreme Court has said that in providing safe conditions of confinement and training or "habilitation" of the mentally retarded, the professional in his individual capacity "will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good-faith immunity would bar liability." Youngberg v. Romeo, 457 U.S. 307 (1982).
33. B.M. Dickens, "Legal Issues in Medical Management of Violent and Threatening Patients," Canadian Journal of Psychiatry 31(1986):772.
34. DiFore v. State, 275 App. Div. 885, 88 N.Y.S.2d 815 (1949).
35. 502 Pa. 241,465 A.2d 1231 (1983).
36. Anicet v. Gant, 580 So.2d 273 (Fia. Dist. App. 1991); see also Could v. American Family Mutual Insurance Co., 523 N.W. 295 (Wis. App. 1994); Mujica v. Turner, 582 So.2d 24(Fla. Dist. App. 1991); Van Vooren v. Cook, 273 App. Div. 88, 75 N.Y.S.2d 362 (1947); sec R. Slovenko, "Tort Liability of the Mentally Incompetent and Their Caretakers," Journal of Psychiatry & Law 22(1994):455.
37. Krauth v. Geller, 31 NJ. 270, 157 A.2d 129 (1960).
38. 246 A.D.2d 88, 676 N.Y.S.2d 38 (1998); noted at supra note 20.
39. S.K. Hoge & T.G. Gutheil, "The Prosecution of Psychiatric Patients for Assaults on Staff: A Preliminary Empirical Study," Hospital & Community Psychiatry 38(1987):44; see also K.L. Appelbaum & P. S. Appelbaum, "A Model Hospital Policy on Prosecuting Patients for Presumptively Criminal Acts," Hospital & Community Psychiatry 42(1991):1233; R.D. Miller & G.J. Maier, "Factors Affecting the Decision to Prosecute Mental Patients for Criminal Behavior," Hospital & Community Psychiatry 38(1987):50; M.A. Norko, H.V. Zonana & R.T.M. Phillips, "Prosecuting Assaultive Psychiatric Patients," Journal of Forensic Sciences 37(1992):923.
40. In the Canadian Psychiatric Association Journal, a case is reported of an assaultive patient who benefitted from legal action. A patient who assaulted a nurse on a psychiatric unit was charged with assault, found guilty, and sentenced to one year's probation, this in spite of the location of the incident and the fact that the patient had a 20-year history of psychiatric treatment and had had 14 prior hospitalizations. The authors of the article reported that "following this confrontation, the patient improved markedly in her behavior and has continued to lead a more productive life without hysterical outbursts," and they noted, "that proceeding with legal charges in such a situation is justifiable and can also be therapeutic." The judge accepted the argument that the patient was legally capable and the setting of the assault was irrelevant. The judge inquired whether a jail term would serve a useful purpose in the treatment of the patient and. determining that it would not, imposed one year's probation. C.J. Schwarz & O.P. Greenfield, "Charging a Patient with Assault of a Nurse on a Psychiatric Unit," Canadian Psychiatric Association Journal 23(1978): 197.
Dr. Lillian A. Phelan and colleagues have noted that the question of whether to prosecute created a split among staff. In this instance, the nurse assault victim opted to press charges. The patient offender plead guilty and received probation, a fine, outpatient treatment, and a warning to stay away from the complainant. The authors wrote that if patients were aware that they could be prosecuted for their actions, it may serve to deter future assaults. L.A. Phelan, M.J. Mills & J.A. Ryan, "Prosecuting Psychiatric Patients for Assault," Hospital & Community Psychiatry 36(1985):581.
41. See articles cited supra note 39. "Pocket probation" as a form of discipline has been suggested. Charges are filed, and the patient and members of the hospital staff appear before the clerk of the court. The clerk reprimands the patient and informs him or her that the file will be kept open for one year. If the patient appears again before the clerk, charges will be brought to the full extent. This process offers the patient a type of probation "while the clerk keeps the file 'in his pocket."' S.K. Hoge & T.C. Gutheil, op. cit. supra., note 39. A model policy that would allow "filing of criminal charges under only extreme circumstances involving serious criminal acts" is set out in K.L. Appelbaum & P.S. Appelbaum, op. cit. supra, note 39.
42. R.D. Miller, "Patient Responsibilities: The Other Side of the Coin," Thomas M. Cooley Law Review 17(2000):9 at 114.
43. While psychotherapist in the treatment of patients emphasize individual responsibility, it is said that psychiatry takes a deterministic position with regard to behavior. Hence, in United States v. Pollard, 171 F. Supp. 474 (E.D. Mich. 1959), the court opined: "For psychiatry, what we do is determined by what we are, and there is little or no room for moral or ethical judgments. In a sense, all criminal behavior, whether it be the acts of the rapist, the forger, the embezzler, the sender of licentious literature through the mails, or tax evasion by a reputable businessman, is evidence of mental disease. But the uncritical adoption of this point of view would completely do away with the concept of criminal responsibility."
44. T.G. Gutheil & T.M. Rivinus, "The Cost of Window Breaking," Psychiatric Annals 7(Feb. 1977):47.
BY PROFESSOR RALPH SLOVENKO…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Violent Attacks in Psychiatric and Other Hospitals. Contributors: Slovenko, Ralph - Author. Journal title: Journal of Psychiatry & Law. Volume: 34. Issue: 2 Publication date: Summer 2006. Page number: 249+. © Federal Legal Publications, Inc. Summer 2008. Provided by ProQuest LLC. All Rights Reserved.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.