Medical Malpractice: Should Practitioners Be Allowed to Represent Themselves?

By Jaishri Atri, George Washington University

Medicine today is arguably a defensive profession. In this litigious society, health care professionals must be on the constant lookout for attacks from their patients—in the form of legal papers of course. When damages are sustained by patients, whether in the form of physical loss of function, loss of dignity, or general abuse by a medical professional, they are within their rights to pursue a legal form of recompense. However, there is a dark side of patient care which can prove to be more harmful than a law suit. When patients become combative, for whatever reason, the very integrity of a medical infrastructure is compromised. Calling into question the safety of medical professionals throws the whole system into unbalance, and ultimately all suffer.

Self defense is one of those things that every citizen is allowed to employ. It is fully within an individual’s legal rights to take steps to insure their own personal safety, and in the circumstance of a physical altercation, retaliation in the form of self defense is accepted as an accepted practice. Doctors and health care professionals are legal citizens, and they do operate within the parameters of the law, so isn’t it within their rights to be able to exercise the law in their favor? Unfortunately, in some circumstances, healthcare professionals find themselves on the wrong side of the law and what is self defense outside the hospital, becomes malpractice within.

We put doctors and nurses and aides into hospitals so that they can treat anyone who comes through the doors—strung out drug addicts, abusers, psychos, and simply mean people included. We ask them to be fair and equal in administering their health care, we even ask them to swear an oath to do no harm. But if someone comes along and genuinely poses a threat to a health care professional that individual has a right to self defense. If we as a society deny these professionals this right, we are denying them safety of work place, and effectively tying the hands of those who are potentially at a very high risk to be hurt. Patients could disfigure or maim doctors or other patients, infect people with used needles or fluids, destroy expensive hospital equipment, cause emotional or psychological after-effects, and threaten the sense of security that other patients feel when they are in the protection of the hospital.

Violence may occur when during the course of treatment a patient becomes disturbed, decides to discontinue treatment, or becomes angry with health care professionals. It can be spontaneous, so doctors have little chance of predicting who will be violent when. In the high stress situations that individuals often find themselves in throughout the process of receiving diagnosis and care, tensions can arise and already stretched patience runs even thinner. All this combined can lead individuals to assault a medical worker. Most important however, is what options a medical worker has at this point: medical restraint in the form of drugs, physical restraint by way of holding or strapping the patient down, or retaliation when no other options are present. In most cases when medical or physical interventions are used the cause for these are apparent and acceptable. Physical retaliation however, in the form of shoving, pushing or whatever, is more taboo and is an action that can be taken to court on the grounds of assault, or worse, malpractice.

In the cases where the patient may be prone to unpredictable behavior such as those on drugs, those suffering from mental health issues, or those elderly patients who may have dementia or Alzheimer’s, the line is further blurred. All of these types of patients may be prone to behavior that can be combative, and it is common knowledge that these patients may resist necessary care by physical means.  In many cases physicians can determine, at some point during care, that the patient may start an altercation and they take measures such as assuring other staff are present, medical sedation, or physical restraints such as strapping patients down. These are preemptive forms of self defense and are perfectly accepted and even considered to be wise demonstrations of forethought. However, if a situation presents where a patient hits, bites, pinches, grabs, or otherwise attacks a physician, doctors should be able to make some motion to free themselves from their attackers—including physical self defense techniques.

Medical health professionals that come in contact with patients should be advised as to the options that they have in defending themselves against combative patients. Protocols should be set in place within hospitals that help doctors recognize the signs of potentially combative patients before any actual altercations take place, to prevent any situations where doctors or patients are put in harm’s way. In addition to this, there should be standards as to what options a physician can take once in a situation with a difficult patient, to help legal systems better judge what appropriate measures are.  In the meanwhile, while we are working to better serve and protect all those involved in the medical process, we should legally recognize the difficulties physicians face in dealing with difficult patients. The law is clear on how it deals with those who attack others—except when it involves physicians. Malpractice seems to be an easy way to mask self defense.

Patients are and should be at the center of any medical organization’s focus and mission. Their welfare and care is primary in all instances, however all patients are not created equally and while some may be cooperative with physicians and the administration of medical care, others are not as docile. While some of the problems that we face in health care today are seemingly monumental, and there is no clear answer as to how to improve what currently exists, the flaw in this situation is apparent. We in our society and legal system need to stop pitting the white coat against the sheriff’s badge and work cooperatively to help insure the safety and quality of experience that all people have when coming into contact with the medical world. Doctors are not commonly known to harm their patients, however in the medical world  it is common knowledge that a doctor will treat a dangerous patient at some point in their career. It’s only fair to give them a fighting chance to do the best for their patient and for themselves.