Establishing a standard of care

The 2008 Saskatchewan case of Prosko v. Regina Qu’Appelle Regional
Health Authority may provide some answers to these questions. 

Carolyn Prosko claimed damages against the Regina Qu’Appelle Regional Health
Authority  for injuries she suffered when she was
attacked by a man in the women’s washroom of the Pasqua Hospital in
Regina, Saskatchewan. Prosko sued the Hospital alleging that it was
negligent in its security measures.  The Hospital denied any negligence
or that that it breached any duty of care that was owed to Prosko.  In
fact, the hospital filed a third party claim against the perpetrator of
the assault, Tyrane Prettyshield, also known as Tyrone Prettyshield, claiming that it was he who caused all loss or
damage to Prosko.

Prior to the lawsuit, Prettyshield, who
was apprehended shortly after the incident, was charged, plead guilty
to assault causing bodily harm, and was sentenced to six months in
prison.

Prosko alleged that the hospital did not have adequate security
measures, that it failed to monitor the movement of persons within the
hospital, and that it specifically failed to monitor the movement of
men in the vicinity of the women’s washrooms. The two liability
questions were, “whether Prettyshield’s conduct was foreseeable and
whether the hospital did enough to protect users of its facilities from
such conduct?”

The Saskatchewan Court of Queen’s Bench held that:
“There is no question that the Health Authority does contemplate that
its hospital facilities may be visited by intoxicated persons or
trouble-makers. The Health Authority’s position description for its
security officers includes duties such as:

Ӣ Diffuse potentially violent situations and control or restrain violent and/or intoxicated people;

Ӣ Attempt to prevent harm to persons or property in crisis situation;

Ӣ Monitor security systems, react to alarms and closed circuit TV systems, as required;

Ӣ Ensure that all hospital property is physically checked, all doors
are secured or open, as required, and all alarm systems are functioning
properly; and,

Ӣ Generally maintain law and order on the hospital property and grounds.

Another document describing the duties of security officers states that
it is the responsibility of the security officer to deal with
intoxicated and other undesirable people. It goes on to say: "Always be
on the lookout for visitors who seem to be just ‘hanging around’.
Approach the visitor and politely ask if you can be of assistance. If
the visitor is legitimate, you are likely to be given an honest
response. If the visitor is evasive, further inquiries should be made
and perhaps the visitor should be asked to leave."

The manager of security services for the health authority gave evidence
that he supervised over 50 employees in the position. He explained that
the security office is located near the emergency department because
that is where most problems occur. People are admitted to emergency in
an intoxicated or drugged stupor and emotions can often run high, both
on the part of patients and those who accompany them to the emergency
department. After hours, entry into the hospital is restricted to those
who attend at emergency and are allowed to enter after checking in with

security.

It is clear that the health authority does contemplate that undesirable
persons or persons with illegitimate motives do enter the hospital
facilities. The fact that the health authority provides security
services manned by trained security personnel on a 24 hour per day
basis is acknowledgment that someone somewhere sometime may cause a
problem for the hospital or those who use it. The purpose of the
security detail is to prevent occurrences if possible and if an
incident does arise, to provide assistance to diffuse it. In this
regard, it was foreseeable that someone may some day commit a criminal
act within one of the health authority’s facilities.

There is a duty of
care on the part of the health authority to protect the users of the
facility — patients, staff, and visitors.

Having determined that such an incident as happened in this case is
foreseeable and within the scope of the duty of care owed to users of
the health facility, the next question to be answered is whether the
health authority met the required standard of care.”

On the issue of whether the Hospital met the required standard of care,
the court commented that neither Prosko nor the hospital led any
evidence on the issue of the level of security which a health facility
like the hospital normally provides.

The trial judge observed that “[T]here was no attempt to compare the
number of security officers on staff or the number of cameras used for
surveillance compared to other health facilities of similar size.
Instead, Prosko’s counsel pointed to the failures to implement the
health authority’s own protocols, such as allowing Prettyshield to
leave the emergency department without ascertaining his reason for
being there in first place; for failing to have someone monitoring the
front entrance to ensure that no one entered as others were leaving
after visiting hours; for failing to educate staff to call security as
soon as suspicious individuals are spotted and not 20 minutes later;
and for not staffing the security office with enough officers to ensure
that the video monitors are being watched continuously.”

In response, the hospital’s lawyer argued that the level of security
provided by the health authority did meet the required standard. In
support of this argument, he pointed to the actions of the security
officers who were on duty that evening to prove that security was being
provided.

The Saskatchewan Court of Queen’s Bench Judge was “satisfied that the
security measures that were in place at the Pasqua Hospital were
reasonable given the likelihood that an individual like Prettyshield should choose this facility to commit a criminal offence
against another innocent person. The presence of security officers in
the hospital premises along with the restricted entry and other
measures such as the video monitoring is obviously sufficient to deter
most people from committing acts of criminal violence against other
users of the facility. There was nothing in Prettyshield’s demeanour
while in the emergency department that indicated that he had any
ulterior motive to be on the hospital property. While the staff member
in distribution could have been more diligent in reporting a suspicious
person on Level 2, that person could not have known that Prettyshield
would strike out in a violent manner minutes later. His actions were
unexpected and unpredictable. He was not known to the hospital staff
prior to the incident and the health authority should not be held
responsible for his criminal impulse.”

That the perpetrator was not known to the hospital staff was also
considered by the trial judge to be an important factor in balancing
the risk of harm befalling upon a user of the hospital at the hands of
an intruder.  
The trial judge held that “it would not be reasonable to find that the
staff member from distribution who delayed calling security about a
"suspicious" individual on the second level should have known that he
would physically assault someone in a women’s washroom on the first
level a few minutes later. No one in security was aware of
Prettyshield’s presence in the hospital until that call was made and
after it was received, they reacted swiftly to try to locate him.

This
is as much as could be reasonably expected of the security staff. 
Accordingly, considering the security measures which were in place at
Pasqua Hospital on March 27, 2002, and the random nature of the assault
committed by Prettyshield upon Prosko, I find that the health authority
did meet the requisite standard of care to all users of the health
facility. Prosko was the victim of a traumatic and vicious attack while
inside the Pasqua Hospital, but the security measures employed by the
Health Authority were reasonable considering that incidents of this
nature had not occurred for many years prior or since.  Action
dismissed.”

It is interesting that neither party called evidence on the issue of
the level of security which a health facility like the Hospital
normally provides.  Plaintiff’s counsel argued that the Hospital’s
alleged failure to implement its own protocols was evidence that the
Hospital had not met the required standard of care.  Defendant’s
counsel argued that presence of security refuted this allegation.

Undoubtedly, the outcome of the Prosko case would have been different
had the assailant been a hospital patient known for his/her violent
behaviour.