Wednesday, April 27, 2011

Can I Hit Back?

Sideways Shrink posed a great question recently in a comment on my post "When A Thick Skin Helps." The question was whether or not physicians are allowed to hit a patient who tries to assault them.

Certainly, physical assaults on patients are not the standard of practice in psychiatry or any other medical specialty. Psychiatrists do undergo some training about physical management of violent patients: I remember in residency we had to get trained in "take down" and restraint procedures. As a group we practiced applying pressure point joint locks on each other in order to make a patient break a grip on us, and to do two person restraints to hold someone immobile until security could arrive. None of this involved any "Crouching Tiger, Hidden Dragon"-type kung fu moves, there was no kicking or hitting or loud kiai karate yells. There was a lot of talk about the importance of being as least forceful as possible. Frankly, I'm not sure how much of that I would have remembered if I had ever been in a position to have to use it. The few times when I was actually assaulted by patients the incidents happened so fast there really wasn't anything I could have done. (OK, so the little manic lady who hit me with a stuffed dog really couldn't count as an assault, and she was already restrained in a geri-chair to begin with.)

But the real question is: will a doctor get into trouble for defending him or herself?

In situations like this it's always best, as one of my friends and mentors regularly states, to think clinically before thinking legally. Safety first, then legalisms. Do what you must do to protect yourself. Learn the security procedures for your hospital or clinic or school or correctional facility, and know them so well you don't have to even think to act on them. If no one orients you to security procedures on your new job, make a point of asking. (Free society employers are particularly bad about this, particularly in an outpatient setting.) Even when you follow the "right" procedures though, it takes some time to get help. By "time", I mean several seconds to minutes, and in that short time a lot of damage can happen. Yes, doctors can and should defend themselves from attack.

What are the potential legal consequences? (Disclaimer: I'm not a lawyer, anything I say can and might be wrong from a legal standpoint, when in doubt call your hospital counsel or malpractice risk management office.)

The consequences could be civil or criminal. An assault or battery charge could be filed by a patient, or a general tort (injury) civil suit could be filed against a physician. A malpractice claim could be made (I doubt anyone could claim that a physician assault against a patient would be a standard part of psychiatric treatment!) however in states that allow contributory negligence (a limitation on damages when an injury is caused in part by patient behavior) the physician's liability would be limited. Finally, the patient could file a board complaint against the physician. So even in the absence of a criminal or civil case the physician could end up on the wrong end of a long, drawn out and painful licensure investigation.

There are factors that could lead to a greater risk of legal consequences if they suggest that more force was used than necessary: if the patient dies or has a serious permanent injury, or if the physician has a chance to escape but chooses to stay and fight instead. And yes, gender discrimination may play a role. If the physician is a young twenty-something, male, six foot four inch tall physician weighing 200 pounds and the patient-attacker is a five foot, 125 pound grey-haired old lady, you could be in trouble.

Off the top of my head I'm not aware of any cases where this has been an issue, and in the heat (or rather terror) of the moment I doubt any doctor is going to stop and weigh out all the potential consequences. And even when the doctor has a legitimate need to defend himself there could still be legal consequences, which are not fun even if the doctor ends up cleared of all allegations.

If I come across any relevant cases or references I'll put them up, but that's what I think off the top of my head.


moviedoc said...

How can you raise this issue without invoking the stories of the murders in their offices of psychiatrist Wayne Fenton, M.D. and psychologist Kathryn Faughey by patients? Even ignoring the tragedy for the professionals and their families, do you think the patients would have been worse off with a black eye than facing murder charges? We absolutely have a right, if not an obligation, to defend ourselves from assault by patients using whatever level of force is required, including hitting and even weapons if necessary. I may not really "kick your butt" if you don't fight back, but if you do fight back and need an expert witness in your defense, I'll be there with bells on.

ClinkShrink said...

Moviedoc you raise an interesting question. Hypothetically speaking, if called to act as a defense expert in a malpractice case against a defending doctor, what practice guideline, learned treatise, training or experience would you cite to support a standard of care for the acceptable level of violence to use when under attack? Wouldn't you be more likely to say this is an res ipsa loquitur situation which requires no expert testimony? Wouldn't the testimony of a non-psychiatrist expert be more appropriate, if it were needed---say, someone who teaches deadly force training to law enforcement professionals, or maybe a self-defense expert. It seems to me that psychiatric expertise is exactly what COULDN'T be used in this kind of defense, except to say that more standard, less lethal or aggressive interventions had already been tried (eg. "talking the patient down", "offering PRN's", placing the patient in seclusion, etc.).

When I referred to cases, I meant cases in which doctors had legal consequences to a self-defense scenario not cases in which psychiatrists were attacked by patients. Unfortunately, that happens much more commonly.

moviedoc said...

Clink, my guess is the plaintiff would find an expert who would claim, as you suggest, that some less violent approach coulda shoulda woulda been used. Maybe the defense would say res ipsa, but would the expert testimony be excluded by the judge? I dunno. I imagine self-defense experts might be used as well. Standard of care means reasonable and prudent. Maybe a defense expert could testify that by attacking the doc "care" is no longer at issue. Depends on the setting, too. You can't offer someone a "prn" in your office, but you could in an ED or psych ward.

I believe there is (non-medical) statutory and case law regarding the right of a business owner to use force in defense of person or property, maybe the castle doctrine.

I don't get your distinction between a "self-defense scenario" and case where psychiatrists are attacked by patients. Sounds the same to me.

I did know a psychiatrist in NY who lost his license after a fight with a patient, but I don't believe there was a clear self-defense justification.

Bottom line for me is, if you --patient or not -- attack me, I will use whatever amount of force it takes to stop your attack.

jesse said...
This comment has been removed by the author.
jesse said...

The problem for the doc is not what he does to defend himself from attack, but rather that the situation existed to begin with. Should he have hospitalized the patient? Had someone else present? Used different medication? Did he do one thing or another that is now alleged to be below the standard of care and thus to have contributed to the situation?

If a patient is angry enough to complain to the Medical Licensing Board or to seek other legal redress the issue will not be simply that the doctor defended himself.

moviedoc said...

Jesse makes a good point. I don't know about "wrong medication," but I thought Fenton might have used poor judgement in meeting with his patient outside of normal business hours (assuming that was the case). Emergencies should be handled in ED's, not private offices. We don't need to be heroes, and we do need to stop pretending that it could never happen to us.

Anonymous said...

I have never threatened, or even thought about, acting violently towards another person. But my psychologist made it pretty clear up front that any threats or actions would end the therapeutic relationship. And I'm okay with that!!

Sarebear said...

What about the opposite situation, if a mental health professional assaults a patient? I can just imagine, if there's no visible proof like bruises, that it would come down to a he said/she said and, well, people might give the patient less credence, being a psych patient and all, than the weight they give to the mental health professional.

Just wondering! I know from time to time sexual inappropriateness by a person conducting therapy has come up and sometimes resulted in being charged with a crime, but I just wonder if a therapist takes advantage and convinces the patient that no one will believe them over him for the reasons I say, among others.

moviedoc said...

Hmmm. That sounds like a good plot for a movie, Sarebear.

Anonymous said...

Moviedoc, you're missing the point. Clink didn't refer to the broad subject of "a self-defense scenario," she referred specifically to a self defense scenario in which in which the doctor had legal consequences. A case in which there were no legal consequences --for whatever reason-- would not be what she's referring to here.
It's like saying "a burglary" versus "a burglary in which the perpetrator gets hurt while in the house and then sues the owner." When someone refers to a specific situation, you can't just broaden it and say that it's all the same thing. Yes, the latter is still a case in which a burglary occurred, but you can't take any burglary and say it's the same situation. If someone were talking about burglaries in general, you might bring up the weirder case of the perpetrator suing the victim, but if someone were talking about cases in which a criminal pressed charges against their victim, you wouldn't suddenly be saying it's the same as when someone stole your VCR while you were on vacation.

moviedoc said...

OK, anon, so what about a self-defense scenario in which there are legal consequences for the doc. (I assume you mean criminal charges or civil suit. BTW: I can't imagine a situation in which the psychiatrist assaulted the patient that could be justified OTHER than self-defense, or defense of someone else in the office. BTW2: As for the question of escape, it might be a good idea to do that, but as I understand the castle doctrine (which may not apply in all states), in your home, if not in your place of business, you have a right to stand and fight.

Dinah said...

I don't even think about this stuff.

Anonymous said...

Oh moviedoc, moviedoc. Psychiatric assault with drugs happens all the time in hospital EDs.

Stephen said...

I'd argue that the moment the patient assaults you, it is no longer a therapist, patient relationship.

Joseph J. Sivak MD said...

A significant percentage of psychiatrists, those in clincal practice, take their lives and personal safety into their hands on an everyday basis. Historically violent patients were mostly on inpatient units, and conventional wisdom was that actual manic patients were the most potentially dangerous. At this point the only predictor of future violence still remains history of past violence.
In reality outpatient practice has become much more dangerous. there are several reason for this. For a host of reaons patients are arguably being discharged from inpatient units more prematurely than ever before. Forces such as the continued destruction of the family unit and ever increasing pathological narcissism and sociopathy, continue to exert there presence in the psychiatrist's office which is often a last common denominator more than ever, and finally with more substance abuse, particularily prescription drugs, the outpatient psychiatrist is perhaps more at risk than ever. Also with the turbulent health care changes, and more itenerant work, and continuous turnover in the health car work force, along with more technology, the psychiatrist may not develop a close communicative relationship with staff, who may have often funcitoned as the eyes and ears for the doctor eg. in the waiting room. These subtle factors all increase risk.
Some things that can help: careful and clinical phone screening at time of intake is crucial in maintaining safety, eg; what is patients motive? Do they want help or are they specifically drug seeking? New patients are unknown and unpredictable. The more infomraiton the doctor has at the outset, the safer he or she can often remain. The best self-defense is preventitive. When the situation may be potentially escalating, when the quality of the repoire has deteriorated, it is time for the psychiatrist to make the call and end the appointment. If patients have been threatening in the office, or the police have been called, it may be a good idea to notify the authorities of the situation, and advise that patient may not return to you office. It may be legally and ethically precarious, with confidentiality, but it is much less precarious from a legal and ethical standpoint than to "defend yourself and hit back". Intuitively you would be more likely to be sued and the situation misconstuued if you struck a patient in "self-defense" than if you called the police and told them a certain patient was dangerous and threatening and was not allowed to return to your office. The key is to make sure the patient is aware you have contacted authorities. For example. Many sociopaths do not want to go to jail or return to jail. Being extra cognizant and enforcing of no guns or weapons in the office is also crucial.
As fundamentally benevolent beings some of these ideas seem counterintuitive, however the doctor still must do the greatest good for the gretest amount of people. There is no perfect way to insure safety. But if you are dead or severly injured you won't be helping any patients.

Anonymous said...

Dr. Sivak,

English 101 was not a required course in pre-med school studies?

Anonymous said...

I'll be anonymous today. When I was working as an RN on an inpatient unit, a few of my peers wound up having neck or back surgery due to assaults. At the time I was training 6 days a week in Hapkido and I can tell you that you do need a lot of training if someone is intent on doing you harm. I was attacked while handing some meds to a patient going though a drug washout. I didn't have a chance to think, just reacted and palm struck him in the ribs. He went flying over a table and fell to the floor where a tech jumped on his back. He immediately gave up at that point. Fortunately he was unhurt and from that day on, even through his psychosis, he was very nice to me.

My overall viewpoint in any self defense situation is that it's better to be judged by 12 than carried by 6.

Duane Sherry, M.S. said...

Another important question that needs to be asked is...

What is a patient (held against their will) to do in a psychiatric hospital, when they are:

a) Forced to take antipsychotic drugs? -

b) Forced to undergo ECT? -

Do they have a right to "hit back?"
Actually, if they do they'll just get more drugs, and/or more ECT!

Duane Sherry, M.S.