This past few years seems to indicate that hospitals are increasingly exposed to premises liability lawsuits where the primary assertion is, “Inadequate Security.” Admittedly, our viewpoint is predicated on anecdotal information. Security Experts who actually testify in these kinds of cases are seeing an upswing. The sad fact is that most of these lawsuits would have been prevented with a moderate amount of self examination. The majority of these cases involved sexual assault claims emanating from a wide range of plaintiffs. In some cases the assertion was that a hospital employee committed the assault, while others asserted the assault was committed by an unknown third party. Clearly hospital security programs must be examined.

Allegations indicate that these assaults were committed in stairwells, parking structures and/or in patient rooms. Claims of negligence assert inadequate training, negligent supervision, inadequate security, inadequate access control, inadequate employee orientation, etc. Some cases could be classified as intentional torts, in that the alleged perpetrator was a hospital employee. Although many of these litigations are defensible, most hospitals are unprepared, before the fact, to meet the challenge of a security lawsuit. It is somewhat ironic that hospitals are not prepared for this kind of onslaught, while at the same time, they do a good job in the prevention and mitigation of medical malpractice suits. Secondly, hospitals tend to defend these litigations by continually reacting to the plaintiff’s Complaint. By reacting, they fail to draw attention to the myriad of affirmative practices that are in place to prevent security breaches. Hospital security programs must anticipate threats and reduce the risk factor.

Other cases we have had include claims of child molestation, infant abductions and homicide. A few cases were intentional tort cases, usually asserting excessive force by emergency department personnel.

Once a lawsuit is filed, the clock stops and the hospital security program is subject to detailed dissection and examination, especially if a competent security expert is retained. It is likely that the security department records for the past three years will be subpoenaed along with police reports. These records may include employment and screening records, training records, past incident reports, and crime data from the local police department. Hospital Security Department policies and procedures as well as the safety committee minutes will be subject to the discovery process.

The only way to attempt to mitigate security litigation is to prepare for that eventuality now. The cost of reaction is two to five times the cost of pro-action. Security litigation is also unique when compared to other types of personal injury law. The difference is most apparent when trying to establish a reasonable standard of care. The reasonable standard of care for most medical malpractice lawsuits is usually definable within specific, generally accepted standards. The same can be said for product liability cases, structural defect cases, and slip and fall cases.

What makes defining the standard of care in a security case so difficult?

The standard of care for sufficient security is difficult to ascertain and define. Determination of the adequacy of security is not predicated on universal standards. The adequacy of hospital security program for a hospital in Keene, New Hampshire, is different form a hospital security program in Los Angeles, California. The security needs for rural hospitals differ from the needs of urban facilities. The security needs for hospitals with Level One trauma centers is different from hospitals with Level Three trauma centers. Therefore, hospital security is a very situational discipline. Each facility must determine how much security is needed to satisfy a reasonable standard of care. The best way to make this determination is by commissioning a complete security assessment by a competent security professional.

If a hospital is sued for inadequate security, expect the employee orientation program to come under intense scrutiny. Employees will be deposed and questions will be put to them about how much security education was contained in the New Employee Orientation Program. Clearly a complete security assessment must be the first step in mitigating these lawsuits. Once an assessment has been completed, it is important that any employee orientation program reflect the needs turned up in the assessment process.

The security needs of each hospital are separate and unique. With that in mind, here are some general areas of interest in making your hospital litigation resistant. These areas of discussion are not all inclusive, but they represent a cross section of approaches that should be given consideration.

First, make sure that all security personnel are properly trained, and that the training is fully documented. Do not wholly rely on standardized training packages. Some standardized training programs are useful as an integral part of a holistic training protocol. However, development of site specific training programs predicated on a needs analysis is a must. These standards should also be applied to the curriculum of the security portion of the employee orientation program. The essence of a good security program is that, “Security is everyone’s job.”

Second, if the facility is using a contract security service, make sure that the vendor does not actually increase your level of liability. Your corporate legal counsel must scrutinize all contracts, and, if necessary, modify the contracts to favor the hospital as opposed to the contract guard service. Require the contract service to provide post orders for every security officer position on each shift. It is your responsibility to require the agency to meet all appropriate training standards.

Third, commission a security audit. The security audit should focus on both internal and external threats. It should also examine the full range of asset protection issues. An effective asset protection program can produce measurable benefits capable of offsetting a significant portion of security costs. A crucial portion of any security audit must focus on the full range of access management issues (visitor control). There is a wide range of divergence in the way hospitals manage access and visitors. Some hospitals have virtually little or no visitor control, while others have very stringent controls. Either extreme may or may not meet a reasonable standard of care. Remember, security is a situational discipline.

Fourth, when incidents do occur, be sure to fully document all facts. Even the appearance of cover-up will seriously exacerbate the potential fallout of a security incident. It is also important, in the wake of all security incidents, to take and document corrective action. Corrective action can mitigate the assertion that subsequent incidents are foreseeable.

Fifth, if your hospital becomes the object of a security lawsuit, be sure that your defense team is led by an attorney that has experience with security litigation. Hospitals will frequently use law firms that they generally use for medical malpractice defense. These firms will be able to mount an effective defense if they employ a security expert thoroughly conversant with the nuances of hospital security.

There are two implicit strategies relative to making your hospital security litigation resistant. First, through the process of assessment and subsequent preventative countermeasures, most incidents can be anticipated and prevented. Second, when incidents occur, despite the institution of prevention strategies, proper response can reduce the probability that the incident will eventually result in litigation.

 Disclaimer
Security is a situational discipline. One size does not fit all. There are no universal standards. This article is intended to raise issues and provoke thought. Any solutions suggested in this article may or may not have direct application for a specific enterprise.  SSO invites commentary, question and/or criticism on this topic.