Can I Hit Back?

April 18, 2011

Will a doctor get into trouble for defending him or herself?

The following was originally posted to the HCPLive network blog Shrink Rap.

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:

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