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Aug 24 09 Legal Obligations to the Dangerous Patient

Legal Obligations to the Dangerous Patient

Carolyn Buppert, NP, JD

Published: 08/18/2009

Duty and Dangerous Patients

When a nurse encounters a patient who is likely to harm himself or another, the nurse may be torn between a call to prevent harm and the need to respect the patient’s rights to confidentiality and autonomy. Ideally, the nurse would identify the danger area and advise the patient of the safest means of protecting self and others, and the patient would agree. But what if the patient doesn’t agree? By warning others of the danger, the nurse is certain to breach patient confidentiality. Respect for patient confidentiality is one of the legal and ethical tenets of all health professionals. By detaining a patient against his or her will, the nurse may commit the tort of false imprisonment, which is also a crime in many jurisdictions. Furthermore, a clinician who disregards a patient’s wishes may damage the clinician-patient relationship.

What Nurses Want to Know About Dealing With Dangerous Patients

Recently, nurses have written to Medscape, describing the dilemmas they face when a dangerous patient is in their care. Most of the issues relate to patients who are impaired and therefore would be dangerous if they drove.

Here are some examples of questions nurses are asking:

  • Are there any HIPPA [Health Insurance Portability and Accountability Act] ramifications if you notify the police that a patient is intoxicated and insists on driving?
  • I work in a very busy emergency room. Our patients receive narcotics for pain. I always tell my patients that once medicated they will need to find a ride home, as driving under the influence of sedatives and narcotics is against the law, and could be dangerous to themselves and others. Upon discharge, they receive written and verbal instructions, and they must sign that they have read and understand the instructions. Nevertheless, some have been seen driving out of the parking lot.
  • What are the legal ramifications of sending a patient home alone, driving independently, after having an outpatient heart procedure where he received sedation and a femoral artery puncture? Our pre-procedure and discharge instructions state that a patient should not drive and should not be home alone post-procedure for 24 hours. Yet we ignore this and the RN is the last clinician to see the patient and send him home per the physician order.
  • What are the legal ramifications for the nurse/or facility who allows an awake, appropriate, 66-year-old patient who has been medicated with propofol and midazolam to ride home with a 15-year-old granddaughter on a learner’s permit?
  • As an occupational health nurse, I was treating an employee with chest pain who refused to go in an ambulance to the hospital and insisted on driving herself. She had no one to come for her and did not want to take a taxi. Where would I stand legally if she left on her own, passed out down the street, or had an accident and harmed someone else?
  • Can a person described as alert and oriented, but who is intoxicated and brought to the emergency room, be placed in restraints for safety reasons?
  • What liability does the staff/institution hold if they continue to treat a recurring patient, knowing he/she habitually drives home from the institution after receiving narcotics, and refuses to do otherwise?

In some situations, it is the patient’s designated driver who is dangerous. Here are some examples:

  • I am a school nurse and we have had parents who come to school "under the influence" to pick up students. What is the liability of a school in this instance? Does the school have the right to hold the child?
  • I work in a hospital-based ambulatory surgery center. On one occasion, a patient was ready for discharge from the post-anesthesia care unit after her outpatient surgical procedure. Her husband, although not exhibiting overt signs of intoxication, smelled very strongly of alcohol. What is my legal responsibility if the patient wants to ride home with her husband?

Legal Considerations for a Decision-Making Framework

Building a framework nurses and others can use for decision-making requires taking a look at federal and state law, court cases, and the guidelines of professional organizations.

The legal issues are breach of confidentiality, duty to warn, duty to report, and authority to detain. An ethical issue is the conflict between the patient’s right to self-determination vs the healthcare provider’s desire to prevent harm, which may call for overriding the patient’s wishes.

Breach of confidentiality: This involves disclosure to a third party, without patient consent or court order, of private information that the clinician has learned within the patient-clinician relationship. Disclosure might be oral or written or by telephone, fax, or e-mail.

Duty to warn: In this concept from the law of torts, a party is held liable for injuries caused to another when the party had the opportunity to warn another of a hazard and failed to do so.

Duty to report: Nurses are required by state or federal law to report specified conditions or findings. These include certain communicable diseases, elder or child abuse, and, in some states, intoxicated drivers.

Authority to detain: If a patient is an imminent danger to himself or others, there is a mechanism under state law whereby healthcare providers may obtain involuntary commitment of the patient. Once that has been done, healthcare providers are authorized to detain a patient. Without that authority, healthcare providers have no authority to detain a patient against the patient’s will.

Federal Law

Breach of confidentiality. The federal Health Insurance Portability and Accountability Act (HIPPA) requires that healthcare providers ensure that an individual’s health information is used only for purposes related to treatment, payment, or operations; that only the minimum amount of necessary information is disclosed; and that disclosure is made only to individuals who need to know the information in order to treat the patient, conduct the practice’s operations, or obtain payment for services.

HIPAA contains an exception that specifically applies to the dangerous patient. The law permits nurses and physicians to disclose protected health information, without the individual’s written authorization, when consistent with applicable law and ethical standards, to a law enforcement official reasonably able to prevent or lessen a serious and imminent threat to the health or safety of an individual or the public.[1]

The key to legal use of this exception is "serious and imminent." If a nurse assessed a patient as intoxicated or impaired, such that he or she was very likely to cause an accident shortly after getting into the driver’s seat, then HIPAA would allow the nurse to report the patient to a police officer or hospital security. If the intoxicated driver is not a patient (such as the parent who shows up to drive a child home from school), HIPAA does not apply, so the nurse could report the individual to police.

Of course, reporting an individual to law enforcement officials would not be the first step. The nurse would first communicate his or her assessment (of impairment) and recommendations (not to drive) to the patient or driver, and make reasonable efforts to assist with alternate arrangements. If the patient or driver still wants to drive, then a report may be in order.

Duty to warn. No federal statutes mandate a duty to warn. However, see case law below.

Duty to report. Federal regulations require reporting of certain conditions or situations, but none apply to the situations nurses describe with regard to intoxication or impairment.

Authority to detain.There is no authority under federal law for healthcare providers to detain patients against the patients’ wishes.

State Law

Breach of confidentiality. States may have laws protecting patient confidentiality. However, federal law (HIPAA) takes precedent over those laws.

Duty to warn. No state’s law places on nurses a duty to warn others of dangerous patients.

Duty to report. Some state laws require clinicians to report certain conditions even though the report violates confidentiality. For example, under most state statutes, healthcare providers must report incidences of certain sexually transmitted diseases, child abuse, communicable diseases, or other conditions deemed to be risks to the health and safety of the public at large. Some states require that physicians report to the motor vehicle administration patients with diagnoses of epilepsy or dementia.

When an individual is deemed by relatives or a healthcare provider to be generally unfit to drive — because of dementia or visual impairment, for example — the relative or provider may write to the state motor vehicle administration requesting that the agency evaluate the individual.

Most state laws do not address the issue of the dangerous patient who is dangerous because of his or her condition that day rather than because of a general deterioration in ability to drive. However, some states are considering such legislation, in response to citizen pressure. Illinois has mandated that physicians or nurses report alcohol concentrations to law enforcement agencies if so requested by the agency.[2] Vermont requires that a healthcare provider who provides services to a person in an emergency department of a healthcare facility as a result of a motor vehicle accident report to a law enforcement agency a blood alcohol level that meets or exceeds the level prohibited by law.[3]

In several states, concerns about confidentiality are removed from the healthcare provider because state law describes the conditions under which a clinician may report to police an intoxicated patient who insists on driving.

Maine’s law states:

If, while acting in a professional capacity, a medical or osteopathic physician, resident, intern, emergency medical services person, medical examiner, physician’s assistant, dentist, dental hygienist, dental assistant or registered or licensed practical nurse knows or has reasonable cause to believe that a person has been operating a motor vehicle, hunting or operating a snowmobile, all-terrain vehicle or watercraft while under the influence of intoxicants and that motor vehicle, snowmobile, all-terrain vehicle or watercraft or a hunter has been involved in an accident, that person may report those facts to a law enforcement official.

A person participating in good faith in reporting under this section, or in participating in a related proceeding, is immune from criminal or civil liability for the act of reporting or participating in the proceeding.[4]

Oregon’s law permits reporting, but only after an accident already has occurred:

(1) If a healthcare provider who is providing medical care in a healthcare facility immediately after a motor vehicle accident to a person reasonably believed to be the operator of a motor vehicle involved in the accident, becomes aware, as a result of any blood test performed in the course of that treatment, that the person’s blood alcohol level meets or exceeds the percent specified in Oregon statute 813.010, the healthcare provider may notify, as soon as is reasonably possible, any law enforcement officer or agency;

(2) The notice shall consist of the name of the person being treated, the blood alcohol level disclosed by the test and the date and time of the administration of the test;

(3) Nothing contained in Oregon statutes 40.225 to 40.295 affects the authority to report imposed by this section, and the healthcare provider shall not be considered to have breached any duty under Oregon statutes 40.225 to 40.295 owed to the person about whom the report is made. Reporting or failing to report is not a violation of any ethical or moral duty.[5]

No states currently require nurses to report to police intoxicated patients who have not already been in an accident.

Authority to detain. State laws define false imprisonment. Here is an example from Wisconsin: "Whoever intentionally confines or restrains another without the person’s consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class H felony."[6]

States have exceptions to the laws on false imprisonment. For example, exceptions give police officers the lawful authority to confine or restrain. Shopkeepers also are given the authority by some states to detain an individual suspected of shoplifting. There are no such exceptions for healthcare providers.

However, state laws describe a process whereby healthcare providers may get involuntary commitment for a patient who is an imminent danger to himself or others. This process is often used for suicidal patients. For example, here are North Carolina’s criteria and procedure for mentally ill patients:

An individual may be committed involuntarily to a mental health facility if he is:

(a) mentally ill and either dangerous to self or dangerous to others, or (b) in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness.[7]

North Carolina’s procedure for involuntary commitment states that:

Anyone may petition before a clerk or assistant or deputy clerk of superior court for issuance of an order to have the individual examined by a physician or eligible psychologist. An affidavit must be filed which includes facts which justify the petition for a custody order….[7]

If the clerk or magistrate finds reasonable grounds to believe the facts alleged in the affidavit are true he issues a custody order to a local law enforcement officer, who transports the client to a physician or psychologist for examination/evaluation. If the examiner determines that the client meets commitment criteria, the law enforcement officer transports the client to an inpatient facility, where a second examination is conducted within 24 hours….[7,8]

A hearing is held in district court within 10 days of the day the client is taken into custody. If the court finds by clear, cogent and convincing evidence that the client meets the inpatient commitment criteria, it may order inpatient commitment for up to 90 days. At the end of the initial inpatient commitment period a rehearing can be held, and a second commitment order issued for an additional period of no more than 180 days. Rehearings can be held at the end of this second commitment period and annually thereafter….[9-11]

North Carolina also has a process for getting involuntary commitment of substance abusers. The states’ criteria for substance abusers state that: "An individual may be involuntarily committed to a facility for substance abusers if he is a substance abuser and dangerous to himself or others."[12] The procedures are very similar to those for involuntary inpatient commitment for individuals with mental illness. A petition is filed, a custody order issued, an examination conducted, and a district court hearing held within 10 days of the day the client is taken into custody. The court may order commitment to and treatment by the area authority or physician for up to 180 days on the initial hearing, and up to 365 additional days on a rehearing if the client continues to meet the statutory criteria. The area authority or physician to whom the client is committed determines whether the client is treated on an inpatient or outpatient basis.

Because court approval is required before a patient can be detained, the system for involuntary commitment is not usually useful to the emergency department staff at 2 a.m. Absent an involuntary commitment, it is against the law to detain a patient who wants to leave.

Common Law (Case Law)

Duty to Warn

Case law provides some direction to healthcare providers regarding their duty to warn others of danger. The most well-known case involving a dangerous patient is Tarasoff v Regents of the University of California. In that case, a University of California student, Mr. Poddar, developed an obsession for another student, Ms. Tarasoff. Mr. Poddar was uncertain about whether his feelings for Ms. Tarasoff were reciprocated and became depressed. His friends urged him to seek counseling. During counseling, he told his therapist that he fantasized about injuring Ms. Tarasoff. When Mr. Poddar dropped out of therapy, the therapist contacted campus police. Police questioned him, he denied homicidal intent, and they left. Two months later, Mr. Poddar killed Ms. Tarasoff. Her estate sued the university, the mental health clinic, and the campus police. The California Supreme Court held that clinicians have a duty to protect potential victims. This obligation would be met by contacting police or by hospitalizing the patient. About 10 years later, California passed a law that requires psychotherapists to protect identified victims by making "reasonable efforts to communicate the threat to the victim or victims and to a law enforcement agency."

Tarasoff tells nurses what to do if a patient declares an intent to harm another individual — warn the individual and contact the police. But more often, nurses are not confronted with a patient who is dangerous to one individual but rather a patient who is dangerous to any individual who is on the road at the same time as the patient.

In a recent case, the Supreme Court of Massachusetts held that a clinician has a responsibility to the general public when the clinician’s patient is impaired and is not informed that he should not be driving. A physician, Dr. Florio, prescribed oxycodone, Zaroxolyn®, prednisone, Flomax®, potassium, Paxil®, oxazepam, and furosemide to a man in his seventies who had advanced metastatic lung cancer. The man, Mr. Sacca, lost consciousness when driving and hit and killed a 10-year-old boy. The boy’s mother sued Dr. Florio, claiming negligence for failing to warn Mr. Sacca not to drive while taking medications known to cause drowsiness, dizziness, lightheadedness, fainting, altered consciousness, and sedation. A trial court awarded summary judgment to Dr. Florio, saying the doctor had no duty to the boy. In December 2007, the Massachusetts Supreme Court reversed the trial court, saying the boy’s case against Dr. Florio could proceed.

The Massachusetts State Supreme Court held that Dr. Florio owed a duty to all those foreseeably put at risk by his failure to warn Mr. Sacca of the danger of driving. This case was brought on the legal theory of common negligence, not medical malpractice. To prove negligence, the injured party must prove 3 elements:(1) that the other person failed to use due care (the care that an ordinary, reasonable, and prudent person would have exercised under similar circumstances); (2) that as a result of the defendant’s negligence, the plaintiff was injured; and (3) that the injured party sustained damages. In medical malpractice there is an additional element — duty of care to the patient. If Mr. Sacca had injured himself, then his family may have had a basis for suing Dr. Florio for medical malpractice.

There is one additional twist to this case. Mr. Sacca had undergone chemotherapy in recent years, and Dr. Florio had advised Mr. Sacca not to drive while undergoing chemotherapy. When, 5 months before the accident, chemotherapy was deemed ineffective, Dr. Florio stopped the chemotherapy and told Mr. Sacca he could drive again. Even if Dr. Florio had, at some point, told Mr. Sacca that his daily medications could impair his driving or other activities requiring alertness, all Mr. Sacca heard was "Your chemotherapy is over; OK to drive."

Not all judges on the court agreed with the majority opinion. In a dissent, one justice asked: "Is the doctor to tell a patient whenever a medication is prescribed that might in some circumstance cause drowsiness or fainting, ‘Do not drive. Do not hold your grandchild. Do not carry grocery bags to your car. In fact, do not do anything that involves interacting with another person?’"[13]

You can view a video of the attorney’s arguments in this case or read a copy of the court’s opinion here.

This case was not the first to find someone liable for an injury to an individual that the liable party did not even know. The justices cited cases from Hawaii and Maine in which courts have held that a doctor owed a duty to a person killed by the doctor’s patient who was driving after taking medication prescribed by the doctor (the Hawaii case) or who was wearing an eye patch given to him by his doctor (the Maine case). In other states, courts have held doctors liable when they failed to warn of the effects of drugs or treatments that they administered, but declined to extend liability where the drugs were prescribed by the doctor but used outside of his presence. Some courts have held liquor stores liable when they sell alcohol to persons who are visibly intoxicated.

Duty to warn, authority to detain, and duty to report. A Massachusetts case that was decided in 2009 indicates how judges analyze clinician responsibility to warn, detain, or report a dangerous patient.

In Dean Leavitt vs Brockton Hospital, Inc., & others, [14] Mr. Leavitt, a police officer for the town of Whitman, Massachusetts, responded to an emergency report of an accident between a pedestrian and automobile. On his way to the scene, the officer’s cruiser was hit by another vehicle, and the officer was seriously injured. He later learned that the pedestrian involved in the accident to which he was responding had earlier that day undergone a colonoscopy at the Brockton Hospital. Before the procedure, the patient had received meperidine, 50 mg, and midazolam, 2 mg. Hospital policy required that patients under the influence of narcotics be escorted when leaving the hospital. The patient was discharged from the hospital without an escort, and shortly thereafter, as he was walking home, he was struck and killed by a car.

Leavitt alleged that the hospital and 2 of its registered nurses owed him a duty of care that was breached when they released the patient without an escort. The hospital moved to dismiss on the basis that it owed no duty to Mr. Leavitt. The trial judge agreed and Mr. Leavitt appealed. The Massachusetts appeals court agreed with the trial judge and the hospital.

The judges based their decision on the following:

1. The hospital had no duty to Leavitt.

2. Absent a special relationship with a person posing a risk, there is no duty to control another person’s conduct to prevent that person from causing harm to a third party, and there was no special relationship between the hospital and the patient that would give rise to such a duty in the circumstances of this case.

3. Massachusetts courts do not recognize a duty to a third person of a medical professional to control a patient (excluding a patient of a mental health professional). The court cited cases where appeals court judges held that (a) a hospital had no right or ability to control outpatients; (b) a hospital owed no duty to unidentified third parties to control a patient and prevent her from driving upon release; and (c) a medical center’s policy, which required staff to ensure that no colonoscopy patient was sedated unless patient had another person to drive patient from hospital, imposed no duty to control the patient and restrict her ability to leave the medical center.

4. Although a patient who decides to drive while medicated may create a dangerous situation, one need not conclude that medicated patients in general are inherently dangerous.

5. Leavitt’s injury was not "caused" by the hospital because it falls outside the scope of foreseeable risk arising from any negligent conduct that would make the hospital’s alleged misconduct tortious.

6. One of the elements of negligence is that the breach of the standard of care was a proximate cause of the injury. Here, causation, if any, was remote, not proximate.

7. While a third party nonpatient directly injured by a medicated patient who drives an automobile from a hospital may be within the scope of foreseeable risk, a police officer injured in an accident in which the patient is not involved is outside of that scope.

8. No courts have recognized a duty by a hospital to detain a patient.

9. There is no duty to control the conduct of a third person to prevent him from causing physical harm to another unless a special relation exists between the actor and the third person that imposes a duty upon the actor to control the third person’s conduct. The special relationships between the actor and the third person that require the actor to control the conduct of the third person are parent and dependent children, master and servant (employer and employee), possessor of land or chattels and licensee, and a mental health professional and patients. None of these relationships apply here.

10. Medicated patients do not have "dangerous propensities" simply because they are medicated, and a medical facility does not "take charge" of a patient undergoing a voluntary colonoscopy.

11. The law "ultimately leaves to further development the question of when physicians have a duty… to protect third persons."

Officer Leavitt argued that this case is "somewhat similar to a licensed commercial establishment that knowingly overserves an intoxicated person and then discharges [that person] onto the roadway where they cause plainly foreseeable carnage." The judges said his analogy was misplaced. In a negligence case against a tavern owner or bartender, liability is based on a defendant’s failure to refrain from serving liquor to an intoxicated patron in circumstances in which the defendant should have known that the patron was intoxicated and where the patron’s subsequent operation of a motor vehicle was reasonably foreseeable. Liability is not premised on a tavern owner or bartender’s "discharging" an intoxicated person onto the roadway. The opinion in the case is available here.

Lessons learned from case law. Although judges base their decisions only on the facts of the case before the court, and although different judges in different states may come to different conclusions, it is reasonable to use the judge’s reasoning in this case to form an approach to dangerous patients. First, inform the patient who has been sedated or who is intoxicated that he or she should not drive. Nurses are not required to find alternate transportation. Second, if the patient declines to take the advice and the nurse can reasonably foresee a disaster if the patient gets behind the wheel, inform hospital security or the police. Third, document the advice and actions.

Professional Organization Guidance

Confidentiality

Here is a portion of language adopted by the American Nurses Association regarding confidentiality, noting that the duty of confidentiality is to be balanced with other factors:

Only information pertinent to a patient’s treatment and welfare is disclosed, and only to those directly involved with the patient’s care. Duties of confidentiality, however, are not absolute and may need to be modified in order to protect the patient, other innocent parties and in circumstances of mandatory disclosure for public health reasons…. These written guidelines must assure that the rights, well being, and safety of the patient are protected.[15]

Nursing organizations have not taken positions on duty to warn.

A Framework for Decision-Making

Here are the questions and considerations that nurses and other clinicians should ask themselves and discuss with coworkers when faced with a dangerous patient:

Does the patient present an imminent danger to himself or herself or others? If the patient talks about self-harm or the patient’s affect is flat, perform a suicide evaluation. If the patient has suicidal ideation, initiate the process for psychiatric evaluation and voluntary or involuntary commitment.

If the patient is not suicidal but is impaired, get the patient’s consent and a physician’s order and perform a blood alcohol level and/or drug screen. Advise the patient of the need to refrain from driving until sober. Practically, it doesn’t matter whether the patient gets laboratory work or what those results are; if a patient is uncoordinated or less than alert, advise the patient not to drive or operate machinery and not to walk the streets alone. Document the advice. If the patient refuses to take the advice not to drive, notify the police. Or, notify hospital security, who can escort the patient out, get the patient’s license plate information, and make a report to the local police. If the patient wants to leave before the police arrive, there is no way to legally detain the patient. If the hospital has a procedure regarding patients who leave against medical advice, implement that procedure.

If the patient is impaired (uncoordinated, slurring words, and/or less than alert) because of medications provided by the hospital, advise the patient not to drive. If the patient cannot arrange a driver, ask the patient to remain until he or she is more coordinated and alert. If the patient refuses, notify police or hospital security. HIPAA regulations allow healthcare providers to violate confidentiality to prevent imminent harm to another by notifying an officer with the authority to prevent the harm. Attempt to prevent this situation by including in preprocedure instructions a notice that the patient will not be able to drive home after the procedure.

The Bottom Line

What is the bottom line for clinicians? Confidentiality is important, but the responsibility to keep patient matters confidential can be overridden if a report is necessary to avert a serious and imminent danger. Reporting a dangerous patient to a law enforcement official may save a life. Advise patients of the side effects of medications that were administered or prescribed. Advise patients of the risks of driving while medicated or ill and advise them not to do it. When a patient is being discharged while sedated, assist him or her, as much as is reasonable, with arrangements for an unimpaired driver. Nurses are not required to supply alternate transportation, however. If the patient is a danger to himself, inform him of the danger to self. If the patient fits criteria for involuntary commitment, use the system. If the patient does not meet criteria for commitment, urge the patient to voluntarily consent to inpatient evaluation and treatment. Document your advice, and if the patient will not agree to your advice, document the patient’s refusal to take the advice and any reasoning he or she provides. If the reasoning describes a problem the nurse can assist with, do so.

References

Authors and Disclosures

Author(s)

Carolyn Buppert, NP, JD

Attorney, Law Office of Carolyn Buppert, PC, Bethesda, Maryland

Disclosure: Carolyn Buppert, NP, JD, has disclosed no relevant financial relationships.

Topics in Advanced Practice Nursing eJournal. 2009;9(1) © 2009 Medscape, LLC

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