What every medical practice and small business owner must consider about gun violence, personal security, and their own legal liabilities.
In the continuing wake of the tragic Parkland and Santa Fe school shootings as well as the most recent nationally reported act of violence against a Scottsdale Arizona Physician*, America is once again examining its relationship with guns. This article is not a second amendment debate and 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 in this context.
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.
Also remember 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.
Do You Have an Internal Gun Policy? It’s also important to be realistic about the internal liability that doctors, business owners and their staff may bear and create.
I previously suggested considering a patient gun policy, but significant liability issues arise when you or staff are armed. Among the most significant issues to consider are:
•Do you have an enforced written office gun policy that employees have been expressly made aware of? You may be held liable for the accidental or intentional gun related injuries of one employee by another.
•Whether you allow firearms at your business or not, the policy should make sense and be designed to require safe and responsible weapon handling and storage and be compliant with local laws. This means it should be part of your professionally drafted employment manual.
•You may also incur liability if you have knowledge that your employees already do possess guns in the workplace. This requires enforced policies on if they may do so or not and if yes, the conditions you require to do so. This control is part of your legal duty as an employer to ensure that the workplace is safe.
•Some states expressly prohibit using firearm ownership or having a concealed carry permit as a basis for hiring discrimination. Others have “parking lot” statutes that say employees have a right to have one in their vehicle. Your policy should include the input of experienced local counsel on these issues.
Know Your Own Liability if You Choose to Carry
I’ve spoken about these issues with many Americans that have strong opinions on both sides of the issue of guns in medical practices and businesses. Many physicians and business owners across the country do carry and essentially articulate the same thing; they’d rather risk being sued than risk being killed. Practice owners should control their own conduct with great care and follow the same common sense and local law compliant rules as their employees. Your own intentional or accidental acts or omissions may create injuries and liabilities to others including employees, patients, and potential violent aggressors.
The media loves it when respected and arguably high-profile professionals like doctors are on the hot seat. We’ve all seen sensational news stories of a victim being sued by a criminal or the criminal’s family for the injuries they sustained when the victim resisted with deadly force. We’ve also seen many long, public and expensive trials when the law questions if deadly force has been justifiably used in self-defense. Unfortunately, most insurance coverage will limit or exclude the liability associated with a civil self-defense related lawsuit, (including legal defense costs) whether it is for personal injury or wrongful death.
Similarly, if you face a criminal trial, any legal fees incurred are likely to be out-of-pocket and will easily be six figures unless you are among the small percentage of gun owners that have insurance that specifically covers the costs of legal defense up to a specific limit. This means that physicians (and all other gun owners) that carry a weapon for self-defense must also be legally fortified with insurance and an asset protection plan that proactively makes their assets and income streams legally distinct from their other liabilities. Just as with physical self-defense, financial and legal self-defense requires forethought and planning.
If you do carry, being proficiently trained in the safe and effective use of your weapon and having a working knowledge of local laws is essential. This means knowing both the laws covering carry and possession and the laws that cover the actual legal use of your weapon. Finally, if the unthinkable happens and you have to use your weapon to protect yourself, patients or staff, have an informed plan for what to do immediately afterward. We’ve previously provided tips from an experienced criminal defense attorney that can help you survive both physically and legally.
This article originally appeared as a two part series at www.PhysiciansPractice.com The Nation’s Leading Practice Management Resource, where Attorney Ike Devji is regular columnist with over 200 bylines. Ike Devji is an Arizona based Asset Protection law authority that helps protects thousands of physicians and business owners nationally and is a CME and and CLE provider on related issues.