When a health professional is injured by a patient, who pays?

In Louise Stark v Lothian NHS Board [2018] SC EDIN 7, the court considered a claim by a nurse whose patient bit her on the arm.

It happened while Nurse Stark was supervising an art therapy session. Her patient was known to be violent. The Health Board had carried out risk assessments. Guidelines were issued for conducting the sessions safely. Ms Stark claimed the hospital failed to follow those guidelines as she was left alone with the patient. Halfway through the trial however, she changed her story. She admitted a second nurse had been present, but claimed he left the room shortly before the attack. On the contrary, the Health Board said he had been present throughout.

The court preferred the Health Board's version of events. The guidelines required the second nurse to remain within "sight and sound" of Nurse Stark, which he had done. Reasonable care had been taken to ensure her safety. There was no breach of duty, so the claim failed at the first hurdle. Although strictly unnecessary, the sheriff commented on causation. He found no evidence the second nurse could have prevented the bite, so even if he had left the room, the claim would still have failed.

Potential for injury is inherent in the role of most medical professionals. Doctors and nurses on the front line often put themselves in harm's way to help their patients. The risk of assault is omnipresent. During weekend nightshifts in A&E, when many patients are intoxicated by alcohol or drugs, the risks increase exponentially. As employers, Health Boards have a duty to take reasonable care to protect staff from assault – but that protection can only go so far.

Sometimes, despite best efforts, attacks are unavoidable. In the most likely scenario, when the hospital is not at fault but the patient who committed the assault can't pay, the Criminal Injuries Compensation Authority steps in to provide redress. Nurse Stark might now consider a CICA claim, but she has probably missed the two-year time limit. Reality bites.