Liability When There Are Physical Altercations in Medical Facilities

By Teri Scotto-Lavino

Teri Scotto-Lavino specializes in the defense of physicians and medical facilities against claims of malpractice. She works with both medical and dental clients. Her caseload also includes the defense of medical facilities against premises liability claims. For thirteen years, Teri was practicing as a Registered Respiratory Therapist and supervisor in multiple hospital facilities in the metropolitan area. Prior to joining the litigation team at Lewis Johs, she was involved in the public interest arena prosecuting Family Court matters to verdict for the Administration of Children’s Services in New York City where she became a supervising attorney.

All medical facilities are required to keep the premises "reasonably" safe for staff, patients and visitors. For any litigator, the definition of "reasonable" has significant ambiguity. Cases concerning verbal arguments escalating to physical altercations occurring within the facility, prove especially difficult to defend as the liability in these cases may overlap multiple areas: personal injury for those involved; workers compensation for injured staff; and claims based in theories of vicarious liability or negligent hiring and retention of security staff. The following article concentrates on the law relevant to a physical altercation occurring in a large medical facility located in the State of New York.

The following is a synopsis of a security event occurring at a large medical facility: During visiting hours, Visitor A became embroiled in a verbal argument with Visitor B. This verbal altercation quickly escalated and became physical. A nurse and another visitor attempted to separate the two (2) individuals and the intervening visitor was knocked to the ground. Security was contacted and spoke with all involved. The injured visitor was asked if medical assistance was necessary and declined medical intervention. All individuals involved in the altercation were asked if they wished security officers to contact the police department and police department involvement was declined. The initiating individual was escorted from the building. The remaining visitors were escorted to the lobby by security officers once their visit had concluded. Although refusing medical attention at the facility, the individual knocked to the ground is suing for personal injuries allegedly arising from the altercation.

In New York State, the injury must have been a foreseeable consequence of a breach of duty. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980); Basso v. Miller, 352 N.E.2d 868, 386 N.Y.S.2d 564 (1976). See also Rivera v. Nelson Realty LLC, 858 N.E.2d 1127, 825 N.Y.S.2d 422 (2006); Bello v. Transit Authority of New York City, 12 A.D.3d 58, 783 N.Y.S.2d 648 (2nd Dep’t 2004). This matter differs from those matters that concern an intruder on the premises and safety measures to prevent such intrusion, in that all parties involved were visitors to patients treated at this facility; thus, as all patients “enjoy the right to have their family members visit them,” Piazza v. Regeis Care Center, LLC, 21 Misc.3d 1108(A), 873 N.Y.S.2d 236 (NY Co. 2006), plaintiff and the alleged assailants were lawfully on the premises. Bouraee v. Lutheran Medical Center, 6 Misc.3d 1027(A)(Kings Co., 2005).

Medical facilities have a duty to third parties lawfully on the premises such as visitors to the facility. “Like any other property owner, [the facility] has a duty to protect persons lawfully present on its premises, including patients and visitors, from the reasonably foreseeable criminal or tortious acts of third persons.” Royston v. Long Island Medical Center, Inc., 81 A.D.3d 806, 917 N.Y.2d 253 (2nd Dep’t 2011). Yet, this protective common law duty is limited; a facility must only maintain the premises in a “reasonably safe manner,” Maheshwari v. City of New York, 2 N.Y.3d 288 (2004); James v. Jamie Towers Housing, 99 N.Y.2d 639, 790 N.E.2d 1147 (2003), as a facility is “not insurers of the visitor’s safety.” Maheshwari v. City of New York, 2 N.Y.3d 288, 810 N.E.2d 894 (2004); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980); Florman v. City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233 (1st Dep’t 2002); Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 694 N.Y.S.2d 445 (2nd Dep’t 1999); Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544 (1998).

Liability requires foreseeability. Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980). It requires a finding that the facility had the ability to “reasonably anticipate the attack on the plaintiff,” and instituted reasonable safety measures to prevent “reasonably foreseeable criminal acts by third parties.” Piazza v. Regeis Care Center, LLC, 21 Misc.3d 1108(A), 873 N.Y.S.2d 236 (New York Co. 2006) quoting James v. Jamie Towers Housing Co. Inc., 99 N.Y.2d 639 (2003). See also Boudreaux v. Columbia Memorial Hospital, 154 A.D.3d 1263, 62 N.Y.S.3d 633 (3rd Dep’t 2017); Williams v. Bayley Seton Hospital, 112 A.D.3d 917, 977 N.Y.S.2d (2nd Dep’t 2013); Royston v. City of New York, 81 A.D.3d 806, 917 N.Y.S.2d 253 (2nd Dep’t 2011); Guo Hua Wang v. Lang, 47 A.D.3d 766, 849 N.Y.S.2d 654 (2nd Dep’t 2008). “To hold otherwise would expose [the defendant] and other similarly situated landowners to a virtual limitless liability.” Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 694 N.Y.S.2d 445 (2nd Dep’t 1999).

The reasonableness of instituted security measures must be related to evidence of foreseeable crime or altercations occurring in a specific building or building complex or the immediate, specified, surrounding area. Whether an incident is deemed to be foreseeable depends on information specific to the incident including the “location, nature and extent of those previous criminal activities and their similarity or other relationship to the crime in question.” Jacqueline S. v. City of New York, 81 N.Y.2d 288, 614 N.E.2d 723 (1993); Miller v. State of New York, 62 N.Y.2d 506, 467 N.E.2d 493 (1984); Sandra M. v. St. Luke’s Roosevelt Hosp. Center, 33 A.D.3d 875, 823 N.Y.S.2d 463 (2nd Dep’t 2006); Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 694 N.Y.S.2d 445 (2nd Dep’t 1999). Prior similar incidents or criminal activity, prior instances of similar aggressive behavior known to the facility or “some prior occurrence of such conduct,” may support a finding of liability but this finding must be based on evidence “that there is a likelihood of conduct on the part of third persons .. which is likely to endanger the safety of that visitor.” Royston v. City of New York, 81 A.D.3d 806, 917 N.Y.S.2d 253 (2nd Dep’t 2011). See also Guo Hua Wang v. Lang, 47 A.D.3d 766, 849 N.Y.S.2d 654 (2nd Dep’t 2008). “Fights occurring in the general area at unspecified times and locations, [are] insufficient evidence of past criminal activity on the premises to raise a triable issue as to the foreseeability of the violent assault by unknown third parties.” Urena v. Hudson Guild, 213 A.D.2d 312, 624 N.Y.S.2d 401 (1st Dep’t 1995). “Ambient neighborhood crime alone is insufficient to establish foreseeability.” Novikova v. Greenbriar Owners Corp., 258 A.D.2d 149, 694 N.Y.S.2d 445 (2nd Dep’t 1999).

The case law illustrates that hospital personnel should not simply ignore interactions that are immediately observable. N.X. v. Cabrini Medical Center, 97 N.Y.2d 247, 765 N.E.2d 844 (2002). Specifically, in Davis v. Brookdale University Hospital & Medical Center, 28 Misc.3d 788, 902 N.Y.S.2d 810 (Kings Co. 2010), the mother of infant patient was attacked by another visitor. Plaintiff testified that other visitor was acting bizarrely, pacing back and forth, throwing things around, arguing, cursing at her companions and had been doing so for the last thirty (30) minutes. Plaintiff informed the nurse that the behavior was upsetting her child, the pediatric patient. The nurse, in response, came to the room and observed the individual cursing loudly, now, directly at the plaintiff. Another thirty (30) minutes passed without intervention. The mother had concerns for her personal safety and that of her child. A security officer heard screaming and came to room. He stood at the door and watched a verbal altercation become a physical altercation without intervening. The Court found that the behavior of the visitor had attracted the attention of hospital personnel and they were aware of the behavior for more than one (1) hour and this behavior, occurring for more than an hour, made the physical assault foreseeable. The Court denied Summary Judgment finding that this lack of response raised triable issues of fact.

Some instituted safety measures may be considered reasonable and sufficient depending on the type, size and location of the property. In Urena v. Hudson Guild, 213 A.D.2d 312, 624 N.Y.S.2d 401 (1st Dep’t 1995), a doorman contacting 911 in response to an observed attack was found to be an “appropriate and adequate response under the circumstance” because a violent assault by an unknown third party on the steps of the building would not have been foreseeable to the landowner.” In James v. Jamie Towers Housing Co. Inc., 99 N.Y.2d 639, 790 N.E.2d 1147 (2003), door locks, an intercom service and 24-hour security on the premises were found to be adequate safety measures.

In cases concerning the specific conduct of an individual security officer, if the officer is employed by the facility and acting within the scope of his duties as a security officer, even if the actions are intentional, the facility may be found to be vicariously liable for the actions of the security officer. N.X. v. Cabrini Medical Center, 97 N.Y.2d 247, 765 N.E.2d 844 (2002); Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932, 715 N.E.2d 95 (1999). Under the theory of negligent hiring and retention, employers may be held directly liable, if the employee is not acting within the scope of employment, if the employer “placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring or retention of the employee.” Sheila C. v. Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dep’t 2004).

Some facilities hire independent contractors to supply security services. In contractor cases, the facility may be liable for injuries pursuant to the theory of negligent hiring and retention. The finding of liability requires “knowledge of the employee’s propensity for the sort of behavior which caused the party’s harm.” Sandra M. v. St. Luke’s Roosevelt Hosp. Center, 33 A.D.3d 875, 823 N.Y.2d 463 (2nd Dep’t 2006).

Many of the larger New York facilities require security officers to be licensed by the NYS Department of State, Division of Licensing Services, whether directly employed by the facility or hired through a contracted security service. To obtain licensure, applicants must undergo vigorous background and criminal history checks. They must participate in appropriate training through State-accredited programs. To comply with licensing requirements, the applicant must offer the State a detailed employment history and evidence of good character including a criminal search performed by the Federal Bureau of Investigation and the office of the local Chief of Police or District Attorney. No license may be issued to any person with a felony conviction and licenses must be renewed every two (2) years after updated classroom time. Upon application to the security services of the facility, the facility performs a criminal background check through the Human Resources Department. The Courts have found that this type of screening is adequate to deny knowledge that the officer has some violent propensities. See Kirkman by Kirkman v. Astoria General Hosp., 204 A.D.2d 401, 611 N.Y.S.2d 615 (2nd Dep’t 1994).

In large medical facilities, “security officers cannot be everywhere at once.” Maheshwari v. City of New York, 2 N.Y.3d 288, 810 N.E.2d 894 (2004). “It is difficult to understand what measures could have been undertaken to prevent [a] plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever [people] were gathered, surely an unreasonable burden.” Florman v. City of New York, 293 A.D.2d 120, 741 N.Y.S.2d 233 (1st Dep’t 2002). In providing reasonable measures to maintain order and safety within a facility, measures must be instituted to prevent, or respond to, reasonably foreseeable occurrences. What is foreseeable, as an element of the claims, requires evidence and that evidence may come from a variety of sources, although it must be relatively specific to the type of incident, manner of incident and situs of incident. Physical altercations occurring within medical facilities between visitors lawfully on the premises may simply not be foreseeable.