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Legal Speak

The Protection of Others

Published February 26, 2013 8:07 AM by Tony DeWitt
It is black letter law in most jurisdictions that a hospital or SNF has a duty to protect its vulnerable patients from the criminal acts of third persons to the extent that's possible. Facilities must take reasonable security measures to protect residents from intrusion, assault, battery and sexual misadventure. 

Reasonable security measures include motion-sensitive lighting, proper door locks, and in some cases, security officers. Each location and the risks associated with that location must be assessed individually. This is one reason why SNFs and other facilities often require name badges and other means of identification among staff members.

But what about the security of visitors, suppliers and other vendors? Does a facility have a duty to protect them from the criminal acts of third persons? In most cases the answer is no. Unless an individual is uniquely vulnerable (as a senior citizen or infant would be), or is neurologically compromised (for example, under the influence of narcotics and unable to protect themselves), in most states a facility is not under a duty to protect them.

D.B. was a 22-year-old with a new car and he was visiting a large chain restaurant in Kansas City, Mo. His vehicle, a very desirable sports car, drew attention from several individuals who followed him to the restaurant parking lot with the intention of stealing the car. Workers inside the restaurant, who happened to see an altercation shaping up in the parking lot between D.B. and the men who were after his car, went to the restaurant door and locked it from the inside to prevent D.B. (and those chasing him with weapons) from entering into the restaurant. This was part of the restaurant's protocol for safety and security, even if it looked somewhat uncaring to the young man pounding on the glass for entry.

As a result, while he was trying to gain entry to the restaurant, D.B. was shot once in the back, and paralyzed from the waist down. He sued the restaurant under a theory of premises liability -- that the presence of criminal elements in the area created a dangerous condition on the property -- and he lost at trial. The jury refused to hold the restaurant owner liable based on the criminal conduct of a third party. (The plaintiff had turned down an offer of $800,000 prior to trial, making the jury verdict particularly painful for him.)

Other cases in other jurisdictions reach different results, but generally, unless a property owner knows that its property is in a dangerous or high crime area, there is no duty to warn or go to the aid of a person under criminal attack. But most innkeepers and other businesses in high-crime areas post signs warning of criminal activity and advising their customers to safeguard valuables.

Nevertheless, in a hospital or SNF environment it is important to protect patients and residents to the extent possible from criminal acts. Residents should be warned and constantly reminded to put away items of value (watches, rights, cell phones, credit cards). Identity documents and money should be placed in the facility safe. Access to residents should be carefully monitored and guests, vendors, and suppliers should be required to sign in when present on the premises.

Sensible precautions up front help prevent claims by patients later.

For more articles on legal issues see:

Managing LTC Liability Costs

Guardian Compensation

Return to ADVANCE for Long-Term Care Management Home Page



posted by Tony DeWitt


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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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