Steven Babitsky, Esq.
The U.S. Court of Appeals, District of Columbia, dealt with BHC psychiatric hospital which was sued for violating the General Duty Clause of OSHA. It was alleged that they failed to protect their employees from the recognized hazard of death or serious physical harm from patient aggression.
The court found that by the employer’s failure to implement its own safety program, it violated the general duty clause of OSHA.
The court stated:
Examining Brooke Glen’s workplace violence program, the ALJ concluded that the facility failed to update or implement various written safety policies. For example, Brooke Glen’s staff training was inadequately implemented: The facility had a PowerPoint presentation covering workplace violence, but failed to present evidence of “how or if [the presentation] was made available to employees.” Id. at *25. The ALJ found that the facility’s Code 100 system—used to summon help in psychiatric emergencies—relied on phones inadequately distributed throughout the facility and walkie-talkies that staff lacked or that frequently did not work. See id. at *15-17. Brooke Glen’s written policies required “a post-incident debriefing of the people involved” in any incident of patient aggression to better prepare staff to prevent such violence in the future. Id. at *12. The ALJ found, however, that staff “debriefings did not consistently occur” and that, even when they did, “their scope was often so limited” that they did not meaningfully contribute to workplace safety. Id. at *12-13.
Brooke Glen adduced evidence showing that its average patient aggression rate in 2016 was 4.41 incidents over 1,000 patient days, significantly below both its 2014 average rate (11.85 incidents) and the total average rate across all UHS facilities in 2016 (8-10 incidents). The ALJ, however, noted several flaws in Brooke Glen’s incident reporting process that impaired the information’s reliability. First, the ALJ found that staff had no obligation to report “incidents of workplace violence that did not result in an injury requiring first aid,” and that staff “could, but were not required to” report incidents in which a patient injured them. Id. at *19. A related reporting system that tracked incidents in which patients were restrained did not capture “the high number of occurrences of patient on staff violence that did not end in a restraint.” Id. at *13. As for a third recordkeeping system, MIDAS, the ALJ concluded that not “all direct care employees” used it, and that information entered into MIDAS did not “effectively contribute to abating patient on staff violence.” Id. at *14.
Having concluded that Brooke Glen inadequately implemented its existing workplace safety program, the ALJ considered the measures the Secretary recommended Brooke Glen implement to come into compliance with its obligation to protect its staff from patient-inflicted harms. The ALJ agreed that the Secretary’s principal recommendation—having Brooke Glen complete a self-evaluation and institute a comprehensive workplace violence prevention and response program—would effectively address the gaps in the present system. See id. at *28-29. The ALJ also held that the Secretary’s more targeted recommendations would materially reduce the risk of patient-on-staff aggression: ensuring more consistent reporting of incidents of patient-on-staff aggression together with routine debriefing following those incidents to detect and respond to systemic issues, see id. at *35-37; increasing staffing to manage the risk of patient aggression, see id. at *30-33; improving procedures for summoning help during violent encounters, see id. at *33-35; involving frontline staff on committees tasked with reviewing workplace safety policies, see id. at *37-39; and enhancing training regarding patient-on-staff violence and related policies and procedures, see id. at *39. In view of the inadequacies in Brooke Glen’s implementation of its safety program and the clear prospect that the Secretary’s recommended measures would materially reduce the hazard of patient-on-staff violence, the ALJ affirmed the cited General Duty Clause violation. See id. at *43.
As mentioned above, the Secretary had also cited another UHS facility, Arbour-HRI, for violating the General Duty Clause by inadequately protecting against patient-on-staff aggression, but on the same day the ALJ upheld Brooke Glen’s citation, she vacated Arbour-HRI’s. See HRI Hosp., Inc., OSHRC Docket No. 17-0303, 2019 WL 989735 (Jan. 22, 2019) (ALJ). Based on a hearing with testimony from the same experts who had testified about Brooke Glen, the ALJ concluded that Arbour-HRI had been effectively implementing its policies, including many of the Secretary’s recommended safety measures, and that the balance of the recommended measures would not have meaningfully reduced the hazard of patient-on-staff violence. See id. at *29-30. For example, the ALJ concluded that Arbour-HRI’s workplace violence policies, unlike Brooke Glen’s, were regularly reviewed and updated with input from frontline staff. See id. at *17-19. Arbour-HRI’s training program included the same PowerPoint presentation as Brooke Glen had on file, but, unlike in Brooke Glen’s case, the ALJ described in detail how Arbour-HRI effectively used its training materials. See id. at *9. The ALJ’s findings also reflect that Arbour-HRI’s staff, unlike Brooke Glen’s, reported and discussed every incident of patient-on-staff violence, regardless of severity, see id. at *16, and had ready means to summon help during violent incidents, see id. at *27.
In light of the divergent outcomes, Brooke Glen sought Occupational Safety and Health Review Commission (Commission or OSHRC) review of the ALJ’s decision in its case, but the Commission exercised its discretion to deny review, rendering the ALJ’s decision the final order of the Commission. See 29 C.F.R. §§ 2200.90(f), 2200.91(a). Brooke Glen timely petitioned this court under 29 U.S.C. § 660(a).
For additional information, see the decision here: https://scholar.google.com/scholar_case?case=6761099054209075639&q=19-1089&hl=en&as_sdt=40000003