Medical Office Liability and Gun Violence

February 27, 2018
Ike Devji, JD

How could gun violence affect your practice? Here's everything you need to know.

In the wake of the tragic Parkland school shooting, America is once again examining its relationship with guns. Here are some of the non-political, practical issues that every medical practice owner must consider about gun violence, personal security, and their own legal liabilities.

This discussion is not a debate on the second amendment. It seeks only to discuss existing law and 'its effect on your planning for provider safety, the safety of your patients, and your financial liability. Please approach this emotional issue with an open mind.

Physical Asset Protection: Be a Hard Target

The best way to handle gun violence is to avoid being involved in it in the first place. Review your use of what are now considered basic and universally affordable preventative security measures. Surveillance cameras, exterior locked doors with buzzers, and locked interior doors between the waiting areas and patient areas can make you and those for whom you have workplace safety and premises liability duties much safer. Think beyond the office walls to your common areas, parking and any other area you control for safety issues including lighting and any requirements for security guards, which vary widely by location.

Be Insured Against Multiple Liabilities

We have discussed the idea of premises liability in many forms in the past and how high limits (think one million dollars as the minimum) of general liability insurance and a commercial umbrella policy are always required as part of your defense plan. You can also get specialty insurance that covers active shooters and acts of violence that many practice owners wrongly assume their basic liability insurance covers. I've been looking into these policies for clients that have business premises that are open to the public ranging from medical practices to hotels and shopping malls and this is the one of the best summaries I have found.

Finally, consider your practice's greatest assets, you and your people. It's always a necessity to have succession and business continuation plans in place for the loss of a practice owner, key employee, or partner including in your personal life insurance planning, partnership agreements, key man insurance and key man disability insurance. An act of violence is an overlooked risk factor that is as real as accident or disease and as recent headlines have shown is striking both small towns in the heartland and the busiest places in America, like the Las Vegas strip.

Consider Your Patient Gun Policies - This Means Having One

If you as the business owner make the premises a "gun free zone" for patients and prohibit patients (as distinct from you and your staff) from carrying a weapon on your premises you face an interesting catch-22.

Business owners who do so typically feel that it increases safety, including any accidental use or misuse of a weapon by a supposed "good guy" (a Utah teacher just accidentally shot the office toilet on a potty-break, as one example). Should you decide to rely on your general ability as the business owner to refuse service to anyone carrying a gun, be sure you are also in compliance with any applicable laws. A handful of states (including Arizona, Arkansas, Connecticut, Minnesota, Missouri, New Mexico, Ohio, Oklahoma, South Carolina, and Texas) have specific "opt-out statutes" that control how, where, and in what verbiage you must post and inform concealed or open carriers that you do not allow them to bring weapons on your premises for you to both be able to legally enforce your policy and to avoid your own liability for doing so incorrectly.

Conversely, some politicians are now arguing that any business owner who does so, has a corresponding legal duty to secure the premises and should be liable for any injury they sustain in an act of violence as a result. They also suggest mitigating your liability by implementing other measures like armed guards and weapon screenings including metal detectors.

This is a complex and fluid area of liability and the law. In our next discussion we will examine related issues like your internal office crisis-active shooter plan, internal staff weapon policy, the liability of physicians and their staff who carry and the legal effect of using a weapon in self defense.