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New push to make hospital worker assault a felony sparks familiar concerns

Lawmakers are again debating whether stiffer penalties for assaulting hospital workers would criminalize people for mental illness
A pile of flowers and a note eulogizing Bobby Smallwood, a security officer for Legacy Health, sit outside the Good Samaritan Medical Center, where he was killed during a confrontation on July 30, 2023. | JAKE THOMAS/THE LUND REPORT
February 20, 2024

Justin McCoy, a Medford critical care nurse, recalls being punched, kicked and hit over the head with a walker. He even ended up in the emergency room after a patient broke his restraints and repeatedly struck him in the head. 

Last year, a patient punched him in the throat for a “good 10 or 15 seconds,” making swallowing and talking painful for days, he told the Oregon House Judiciary Committee in Salem last week. “I feel very strongly that more needs to be done to protect health care workers from visitor and patient violence.” 

McCoy spoke in support of House Bill 4088, the latest attempt to bring harsher criminal penalties against people who assault hospital workers. The bill is tailored to address concerns about criminalizing people experiencing mental illness that helped sink a similar effort in 2022

But it’s still drawing criticism that it remains broad enough for people in crisis or with a disability to be charged with a crime if they lash out at a health care worker. 

“I just don’t see how a person with an intellectual disability is going to stop an involuntary behavior or behavior that’s based in the disability and process the idea that it’s a felony rather than a misdemeanor,” State Sen. Sara Gelser Blouin, D-Corvallis, told The Lund Report.

Attempt at consensus fractured

The bill is a response to an increase in violence against health care workers, including the fatal shooting of hospital security officer Bobby Smallwood last year.  

It would make knowingly assaulting a hospital worker a Class C felony, punishable by up to five years in prison and a $125,000 fine. That’s the same penalty for assaulting a bus driver, emergency medical crew members, taxi drivers and highway flaggers, state Rep. Shelly Boshart Davis, an Albany Republican and bill cosponsoring, said at the hearing last week. 

Boshart Davis, whose sister has been assaulted while working as an emergency room nurse, also cosponsored legislation during the 2022 short session that passed the House only to founder in the Senate amid concerns.

Last year, Boshart Davis and Rep. Travis Nelson, a Portland Democrat and cosponsor of the bill, formed a work group to try to address the criticisms. Gelser Blouin participated, along with representatives from hospitals, unions, disability advocates, lawmakers, prosecutors and others. 

Gelser Blouin told The Lund Report that people with disabilities sometimes have “challenging behaviors” that can be misunderstood. She said that someone in a crisis might fight back thinking that a nurse trying to take their blood pressure is attacking them. A felony charge can mean they lose their jobs and housing, she said. 

She pushed for the bill to include targeted language creating exceptions for people experiencing an intellectual disability, delirium, dementia, traumatic brain injury, severe mental illness and other conditions. 

But the House Judiciary Committee last week approved an amendment removing those exceptions while leaving a narrower shield for people with disabilities or mental illness. 

Nelson told The Lund Report that the work group couldn’t reach a consensus between prosecutors and disability advocates on how to prevent the criminalization of mental illness. 

Still, he said he’s optimistic the bill can still clear the Legislature before its scheduled March 10 adjournment. The bill is broader than the previous version and includes more transparency and other measures that health care workers have asked for. Another sweetener, he said, is a grant program to help hospitals purchase metal detectors and other safety devices. He said the bill is seeking $2 million for the grants. 

“We got a lot of really good agreement other than the penalty,” Nelson said.

The bill has the backing of the Oregon Nurses Association, the Oregon Emergency Nurses Association, the Hospital Association of Oregon, the Oregon District Attorneys Association and others. 

Opponents include Disability Rights Oregon, the Oregon Criminal Defense Lawyers Association, the ACLU of Oregon, the National Council on Severe Autism and others.

While the judiciary committee voted overwhelmingly Thursday to recommend its passage, some lawmakers remained worried.

“I wear the hat of a sister of a mentally ill man who I still think is at risk of being charged with a felony under the current bill,” state Rep. Lisa Reynolds, a pediatrician and Portland Democrat, who voted for the bill. “And I wear the hat of a health care worker who has been reached out by many, many health care workers.”

Despite voting for the bill, she remarked “I don’t think we'’e made the progress that was promised” in the unamended version. 

The bill has since been referred to the Legislature’s budget-writing committee. Gelser Blouin said even though she supports the bill’s other provisions, she’ll vote against it if it reaches the Senate.

‘This issue concerns real people’

Speaking to the judiciary committee last week, Nelson said he introduced the bill in response to reports he’s heard from nurses and hospital staff they don’t feel safe at work. 

Nelson, a registered nurse who works for the Washington state nurses union, pointed to a 2022 Oregon Nurses Association survey that found that 70% of emergency department nurses had been assaulted at work, with about a third saying they’d been attacked up to three times in the past year alone. He pointed to a national analysis finding that on average 57 nurses are assaulted every day. 

“However, statistics cannot capture the entire story,” he said. “This issue concerns real people who dedicate their lives to caring for others yet continue to face risks of harm in the workplace. It’s time we stand up for them.”

The bill’s less controversial measures include ensuring union representatives can participate in hospital worker safety meetings and allowing employees to to wear ID badges without their last names. The bill would make it easier for the state to publish statistics on worker assaults and illnesses at hospitals. 

Additionally, hospitals would have to post signs notifying workers of their rights if they are assaulted and warning the public they could face criminal charges for attacking an employee. 

Brian Powell, Clackamas County prosecutor representing the Oregon District Attorneys Association, told lawmakers that the bill has specific language intended to protect people in crisis. The felony applies to someone who knows their victim works in a hospital and who knowingly sought to injure the worker while on the job. 

“The reason for that is that we want to make sure that we’re protecting the more vulnerable populations who go to hospitals for care: Folks who may be in a state of crisis, may be experiencing some sort of dysregulation, such that they aren’t able to actually identify what's going on,” he said. “They aren't able to identify the person that they’re hurting.”

But disability advocates and other critics of the bill argue it doesn’t go far enough. 

Gelser Blouin said that a disabled person can know that someone works in a hospital but still attack them because they’re hallucinating or are terrified because of a perceived threat.  

Beth Brownhill, managing attorney for Disability Rights Oregon, told the Oregon House Judiciary Committee last week that caregivers for people with disabilities might be reluctant to take people they care for to the hospital if they are experiencing a crisis. 

“This bill fails to offer the necessary protections for individuals whose behavior manifests in crisis and disability,” Mae Lee Browning, lobbyist for the Oregon Criminal Defense Lawyers Association, told the committee. She also said there is no data to support whether it will work.

Andrew Haynes told lawmakers that he’s managed epilepsy since he was 16 but has had people mistake his seizures for drug use while in public. He recalled how in 2016 he was taken to a hospital after a car accident and started fighting staff when he suddenly woke up in restraints in an unfamiliar setting. 

“And I did cause some harm to some nurses,” he said. “My sister, who understands my condition, told the nurses, ‘Give him space. Don’t touch him. This is how he acts.’ But they disregarded her advice. And it was a regrettable situation.”

Haynes said he’s worried he could end up with a felony charge under the bill. 

Proponents cite safeguards

Nelson told The Lund Report there’s evidence signs deter violence and that having the increased penalty will make police departments take assaults at hospitals more seriously. 

He said he’s also satisfied that the bill has enough safeguards to prevent the criminalization of mental illness. He pointed out that state Rep. Jason Kropf, a Bend Democrat who chairs the judiciary committee, agreed. 

During the Thursday hearing, Kropf, a former prosecutor, said he appreciated concerns about the bill but he said that there are provisions elsewhere in the criminal code that take into account people who are unaware they’re committing a crime. He said the bill did not need to have similar language as well.  

“The criminal justice system is not the system for dealing with folks who have mental health, significant mental health issues or dementia or health issues,” he said, adding that social services should be in place for them. 

You can reach Jake Thomas at [email protected] or on at @jakethomas2009.