Self-Defense in Healthcare, Part 1: Can Caregivers Use Self-Defense?
Imagine you are a nurse in the Emergency Department walking to a room to assess a new patient that had been brought into your pod by a triage nurse. You see a slightly disheveled female, sitting on the gurney while anxiously wringing her hands. You greet the new patient and introduce yourself. You ask her what you can help her with. She does not respond to you and stares blankly ahead. You ask her again. Still, no response. You call her by the name you see in the chart, and ask her if she's okay. She briefly glances up at you and her face contorts into wide-eyed rage. She explodes off the gurney and manages to land two blows with her right fist to your neck and cheek. She pushes you backward out of the room with one hand grabbing your scrub top while slapping your shoulder with the other, all the while shouting unintelligible words through pursed lips and spittle. Dazed, you are surprised this is actually happening. You gather some of your wits, yell repeatedly, "stop, Stop, STOP!," and push back on the patient while face to face, feeling her hot breath and the wetness of her saliva on your face. Using your body weight and leverage, you manage to get the patient back into the room, where it will be easier to contain her violent behavior. With her still clinching your scrub top, you manage to get the patient on the gurney, pushing her shoulders into the mattress. She is flailing her arm and legs now, trying to make contact with anything she can. You feel her teeth on your wrist and the start of biting pressure. You yell, STOP and reflexively slap her face with an open hand. This briefly stops the biting, but she does it again, this time with more force. You again yell, STOP and slap her again. She again stops and at the same time, a coworker comes into the room and helps to restrain the patient's legs. More staff arrive and help with restraining the patient, who violently resists. Once your fellow staff seem to have control, you exit the room to take a breather. In the bathroom, you see redness to the left side of your face and neck, with some swelling starting to develop on your left cheek. You grab some ice for your face and get back to work. Later in the shift, you fill out the violent incident report and the patient, who is now calm, apologizes for hitting you.
A day later, you are called into the manager's office. You are being placed on administrative leave so they can investigate patient abuse. When you slapped the patient's cheek while she was biting you, you left red marks on the patient's face. A coworker reported that they felt you were too aggressive towards the patient. You tell them your side of the story and that it was just you and her in the room and you were in fear of not only your own life and safety, but for the safety of others that were in the emergency room that day. No one came to help for what seemed like minutes. You felt you had no choice but to strike the patient to get her to stop biting you. Having fear of liability and a lack of policy to address situations like this, they tell you that, "We don't treat patients that way, even if they are hurting us." They add, "That was not an approved technique that was taught in the violence prevention class."
After a couple days at home while anxious and worried sick about your job, you receive a phone call from HR telling you that your employment is terminated. A 25-year career of dedicated, professional emergency nursing at this one hospital; done. In a snap.
I imagine situations like this are happening pretty often. We just don't hear about them. I hear of hospitals telling caregivers that they cannot respond to violence with violence, no matter what the patient is doing to you. Some policies even prohibit security staff from touching a patient at all.
Some people might argue that the scenario above is not self-defense. Okay, I can understand. Even if the patient had diminished capacity, it doesn't change the caregiver's right to protect their own life in the moment. But let's say that an expert has reviewed the event and says it is legitimate self-defense. Let's take some time in the next couple newsletters to dig into why.
Self-defense is allowed as public policy, meaning, someone can use physical violence to stop or prevent bodily harm or death to themselves or a third person. Every state allows for this.
But can we use reasonable and proportional self-defense in healthcare?
Yes we can.
There is really no case law that sets a precedent that hospital or healthcare workers cannot use self-defense against patients or other people in the hospital. Why is that? In my experience, it is because those lawsuits against healthcare employers get settled out of court. Which, if you think about it, is smart on the employer's side because you wouldn't want to take that to a trial by jury. The employer will definitely come out looking like the bad guy. But I'm still holding out hope that one of these cases will be decided by a jury, so then we can have some solid case law.
The closest case law we have is Ray vs Wal-Mart Stores. In brief, Wal-Mart had a policy that employees were required to disengage from a violent person (with or without a weapon), withdraw, and contact law enforcement. Five employees who were terminated for using self-defense sued Wal-Mart in federal court for wrongful discharge. The Utah Supreme Court decided that the public policy favoring self-defense came from the Utah Constitution, state statutes, and common law. The right of the employee to defend themselves outweighed the employer's business interests, provided that the employee had a reasonable belief in imminent threat of serious bodily harm and an inability to withdraw from the situation.
Put into the context of healthcare, sure, hospitals don't want hyper-aggressive caregivers or vigilantism. But when you're trapped and feel you have no other choice but to defend yourself, you can. It'll get sorted eventually - but at a cost no one should have to pay just for showing up to work.
Back to the above scenario. Let's say you, the nurse, take a few months to recover physically, emotionally, and spiritually. In the back of your mind, something about the whole situation just doesn't sit right. You decide to consult a lawyer. Based on the facts of the situation, the lawyer tells you that you likely have a case for unlawful discharge. You are able to scrape together some money for the retainer fee and the lawsuit is filed. Files, records, violence data, and training materials are requested, experts are consulted and depositions are completed. The lawyers talk a couple times over a couple months. In the end, the case is settled out of court. It's not millions of dollars, but enough to tide you over for a while until you get your next job.
In the next couple newsletters, we'll discuss ways to fairly treat the employee and the organization when violent situations are met with violence within the healthcare space.
Less Tolerance for Zero Tolerance
Working in healthcare, we're constantly faced with the pressing issue of workplace violence. Although many institutions have turned to zero tolerance policies to tackle this problem, I've seen firsthand the challenges and limitations of such an approach.
Zero tolerance policies have their roots in the late 20th century, starting with the war against drugs in the 1980s. They gained prominence in education with the implementation of the Federal Gun-Free Schools Act of 1994 in the U.S., mandating strict punishments for students bringing firearms to school. This approach, characterized by inflexible and harsh penalties, quickly spread beyond education into other sectors, including law enforcement and healthcare.
In healthcare, zero tolerance policies began taking shape around the late 1990s, particularly with the National Health Service in the UK. By the early 2000s, these policies became more widespread in the U.S., often aimed at managing both healthcare worker behavior and patient violence. While initially seen as a straightforward solution to promote safety, the rigid nature of zero tolerance has raised concerns about its applicability in complex environments like healthcare.
Initially, the logic behind zero tolerance seems solid—eliminate any tolerance for violence to create safer spaces. However, the unique challenges of healthcare make these policies problematic:
Murky Definitions: One of the biggest issues is the lack of clear guidelines on what counts as violent behavior. There's a world of difference between a patient who's aggressive because they're scared or disoriented and one who's intentionally violent. Yet, sometimes the policy treats them the same.
Rigid Application: It feels like zero tolerance leaves no room for judgment. As a caregiver, that puts us in a tight spot between wanting to do what's best for our patients and following strict rules that don’t consider the full context of each situation.
Impact on Patient Care: Zero tolerance can unintentionally make us wary of dealing with agitated patients, for fear of repercussions. At times, this might lead to worsened outcomes for patients who really need our empathy and understanding.
The Questionable Effectiveness: Over my career, I've come across plenty of research suggesting these policies haven't really made us much safer. They're sometimes more of a symbolic gesture than a real solution to the problem.
One of the most troubling aspects of zero tolerance policies is how they handle situations of self-defense. It feels like a double bind when staff members use physical force to protect themselves or others during a violent incident, only to face scrutiny, disciplinary action, or termination due to a policy that doesn't differentiate between offensive and defensive actions. This aspect overlooks the necessity of such actions and can lead to caregivers being unfairly penalized for doing what they must to ensure safety in an emergency. Zero tolerance can increase risk due to litigation against the healthcare entity for wrongful termination, which increases costs and potentially damages the institution's reputation.
Despite their limitations, zero tolerance policies offer some benefits:
Setting Expectations: They do help by clearly stating what behavior we won't stand for, creating a baseline standard for everyone stepping through our doors.
Empowering Reporting: With clear boundaries, we're often more empowered to report when things cross the line, without wondering if we're overreacting.
From my experience, it's clear we need more than just zero tolerance to create genuinely safer work environments. Here's what I think could work better:
Emphasizing Prevention: We should focus on comprehensive violence prevention programs. Education, risk assessments, and communication can go a long way in nipping issues in the bud before they escalate.
Tailored Policies: Adopting a balanced policy approach that allows for discretion, taking into account the nuances of intentional versus unintentional aggression, including legitimate self-defense.
Listening to the Frontlines: Regular surveys to capture caregivers' insights and experiences could radically improve policy effectiveness.
Zero tolerance policies have oftentimes left us wanting more. As we push forward, let's aim to replace these rigid structures with plans that actually fit the needs and realities of healthcare. With more practical strategies and a willingness to listen to those of us in the thick of it, we can foster a safer environment for everyone involved.
What are your thoughts on zero tolerance policies?
If you want to hear more - check out this episode of my podcast:
Five Tips from Law Enforcement to Combat Healthcare Violence
If you’ve read social media lately, there is a frenzy of discussion around violence in healthcare. Recent events include an ED nurse being raped and held hostage in Illinois, an ED nurse being stabbed in Massachusetts, a legal case in New York where a pregnant nurse was punched in the stomach, causing her to lose the baby and an unjust arrest of a nurse for refusing to draw a patient's blood without a legit legal reason in Utah. It’s been on people’s minds for a while, but now it has been pushed to the forefront. There are many accounts of healthcare workers responding to social media posts, citing their own experiences of being a victim of violence at work and even the lack of support from hospital administration. Included in these posts, not surprisingly, are healthcare workers lashing out at each other and placing blame on the victim.
Our healthcare culture hasn’t dealt well with violence. And it makes sense. Most, if not all, go into healthcare to help people and receive training as such. We do not receive extensive training in de-escalation and self-defense. Some might argue though, that they took a violence prevention class, so they received adequate training in self-defense. However, not all violence prevention classes teach self-defense. Compared to the years of medical/nursing training, we must call those few hours of violence prevention training woefully inadequate. It’s hard for healthcare to switch our mindset to a place where we might run the risk of hurting someone, even if it is necessary to save ourselves or someone else.
After these recent events, I discussed healthcare violence with a law enforcement friend of mine and his wife, who is a nurse. The following is from our conversation.
The bigger the agency, the less they support you – Our employers are running a business, and to them, it would be just as easy to hire another person as it was to hire us. When we retire or resign, they will replace us and the healthcare machine will march on without hesitation. Don’t love an agency that can’t, or won’t, love you back.
We’ve heard the stories of hospitals not supporting their employees that are victims of violence. It is the easy way out. It is very easy to let someone talk us out of calling the police to report the crime (yes, intentional violence in the hospital is a crime). It is very easy to talk ourselves out of it with thoughts of, “the department is busy, I don’t have time”, “I don’t want to seen as a weakling”, “it’s a part of the job, I should just get used to it”, “I’ll probably get fired if I report it”, “I don’t want to miss work,” “the hospital won’t pay me to attend trial” or “I don’t want to make the hospital look bad”. We could go on with the excuses, but you get the picture.
Since healthcare hasn’t trained itself to address violence head-on, it’s no wonder that support for the victim is lacking. We just don’t know how to deal with it. We have plenty of evidence staring us straight in the face that it is a rising problem. And yet we remain fairly passive and our training, policies and action remain anemic. OSHA is considering a standard that would mandate all healthcare and social assistance to provide violence prevention education to their employees. If we don’t do right by our people, we will be regulated to do so. Congrats healthcare, we are at that point.
What if leadership/management discourages you from reporting violence or pressing charges? You, the victim, have the right to press charges. Management/leadership does not get to make that decision for you. It is not the hospital’s responsibility (unless it is written in policy). You have to be willing to be the victim. And unless the hospital specifically says that you cannot report the crime or press charges, there might be a case for a civil suit. Remember, you do have the right to a safe work environment. You may have started a career in healthcare to help people, but that is near impossible if we do not take care of ourselves and our safety, first. By prosecuting violent people, we help ourselves recover and find closure from an incident. We hold the assailant accountable so they don’t do it again to someone else. And by prosecuting, we might be helping that person get back on the right track. Sometimes we’ll never know.
What if law enforcement discourages you from reporting violence or pressing charges? Follow the chain of command. It might start with the shift supervisor, then to lieutenant and maybe all the way up to the chief (or sheriff). If you are worried about HIPAA, you can disclose some information since your attacker committed a crime. Read here to put your mind at ease. If anything we know, nurses are persistent. Don’t give up on this.
What if you had to defend yourself? Expect to be questioned by law enforcement. Expect to be grilled by your leadership/management. If done correctly, law enforcement should have your injury documented and photographed, and the same done a couple days later. If you caused your attacker injury, it is suggested to hire legal counsel. It’s recommended that you don’t give details without first seeking legal counsel. It may be advisable to consult as well with your union rep, but they should not take the place of a good lawyer. Realize that your recall of the event might improve over the next couple of days. Your self-defense should be judged from your point of view, not based on witness accounts. You might even have to appear in court. Since violence is so prevalent, an insurance policy might be helpful. NSO offers coverage for personal injury (that you might cause) and assault coverage (I am not paid by NSO).
What is your advice for healthcare workers from a law enforcement perspective?
1. Change your mindset. Even though you help people, change your mindset. What is the most important thing in your job? You; followed by your coworkers, followed by the public, followed by your employer. If you don’t prioritize your safety above all others, you may become a victim. Wrap your mind around the fact that you might have to do something you’re uncomfortable with in order to protect your safety and those around you. We have to take care of ourselves before we take care of others.
2. Do enough to escape and get away. The intent is not to turn medical/nursing staff in to black belt cage fighters. We are talking about self-defense. Develop the skill set to do what is necessary so that you can get away and home to your family uninjured.
3. If it’s a fair fight, change tactics. Think dirty. Cheat. Your goal is to do number 2 above. Remember, this person tried to hurt you. You did not ask for this confrontation, and it was most likely forced on you.
4. Know how to observe, be aware and be proactive. Training for the worst situation can often help you avoid it. Sometimes it is simply teaching people how to identify a bad situation so they can step back before it gets out of control.
5. Realize when we are stressed, we do not always rise to the occasion. We fall to our lowest level of training. Don’t fall into the trap “this won’t happen to me.” You won’t be prepared when a volatile situation rears its ugly head.
This is not, nor should be considered, legal advice. Nor does this advice supersede your institution's policies or procedures.