Understanding the Threat of Threats

An oncology practice I work with recently called with a challenging question: what do we do with a patient who acted in a threatening manner? This particular patient grabbed a doctor’s arm and pulled them out the room saying, “you and I, we are both _____” (fill the blank with an extremely derogatory racial epithet.) The patient told the physician to get the “$%##@” out of the room. The patient then struck walls, tables, and other inanimate objects, and mentioned that they had a gun in the car and speculated about retrieving it. This particular patient wasn’t receiving chemotherapy, but let’s say they were. What should the clinic do?

The conventional wisdom is that to discharge a patient, one must give them at least 30 days’ notice and make sure that they’re able to receive emergency care. There’s a good reason for that: medical organizations have a duty to patients. Abandoning the patient can create real malpractice risk. And when you consider that a patient’s outburst can be the result of a medical condition, the need for that duty becomes particularly clear. But we also have a duty to staff. Staff have a right to a safe working environment. This is one of those situations where the two duties are in direct conflict.

There isn’t an easy answer to this.

I find myself going through a checklist of sorts. Are there steps we can take to lower the risk to our staff? For example, is it possible to have security present during a visit? Is there a reason to believe that mental health treatment might help the patient? Is there a way to treat the patient and keep your staff safe? The answer may depend in part on the size and makeup of your organization. Larger health systems should have more resources for security than a smaller clinic. But in all cases, it is important to consider the patient’s mental health. Failure to do so definitely creates the potential for a legitimate malpractice claim.

While some parts of this decision-making process are extraordinarily difficult, there are also some parts that are very clear. Perhaps the clearest and most important is to make sure your actions are intellectually consistent. One question may initially seem hard: should you call the police? To me, this is one of the easiest questions. If you are genuinely worried about your staff’s safety and you are discharging a patient immediately because of that fear, you’d better be reporting the patient to the police, and you probably should consider suggesting a commitment action to the local county attorney. Obviously, reporting a patient to the police should be a last resort. Patients have a right to confidentiality, such that in most states, if a patient confesses a past crime to a medical professional, you can’t disclose that. In most cases, you can’t even confirm someone is a patient. But situations in which the patient presents an ongoing danger to themselves or others are different. You can breach confidentiality if there is a reasonable fear of harm. 

Now it’s possible, or even probable, that your complaint will be ignored. But if anyone challenges your discharge of the patient, the first question a smart lawyer will ask you is whether you reported the patient. If you didn’t, the argument that you thought the patient was a serious threat will sound deeply disingenuous.

I also recommend being extraordinarily accurate and concrete in your descriptions. Rather than describing behavior as ” threatening” or “scary,” describe exactly what the individual said or did. Don’t exaggerate, and try to use exact quotes when possible. For example, while the statement “I have a gun in my car and I may go get it” is certainly alarming, it isn’t a direct threat of bodily harm. The staff were understandably uncomfortable. But ideally, they would have asked “why?” After all, the patient has made the declaration. Asking the next question is unlikely to make things worse, but it can help identify the patient’s intent. 

Writing the encounter is a useful exercise.

If your text description of events doesn’t sound serious enough, you may need to reconsider whether your determination that the patient is dangerous is accurate. Be careful to consider whether a patient’s race, gender, or nationality is a factor in the threat assessment. Bias can cause people to view statements as more threatening than they are.

Calling the police on a patient is a big deal. You don’t want to do it unnecessarily. And you don’t want to fail to do it when it is.

The good news is that the law offers you the space you need to make a reasoned judgment about which path to pursue.