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Cellphone use in the OR poses liability risks
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The widespread adoption of the internet and advancements in network and cellphone technology have altered the way in which medical professionals work. Cellphones, which combine utilities other than telephone functions, are used by medical personnel, including those who universally work in ORs.
Cellphones equipped with built-in cameras are used to take intraoperative photographs and to play music during surgery. Images taken by such devices can be quickly loaded onto other websites, where the images are open to the public. Thousands of software applications are available on cellphones to help facilitate physician and patient communication and update relatives about surgery from waiting areas.
Cellphone technology can simplify and expedite medical work. Diagnostic applications, drug databases, medical calculators and resuscitation protocols have replaced memorization, overfilled white jacket pockets and scribbled index cards of the past. Flashlight applications built into cellphones have helped during tracheal intubation and offer a low-cost alternative to introduce laparoscopic surgery into developing markets.
B. Sonny Bal
Specific applications have enabled cardiac patients to transmit electrocardiogram rhythm strips to their physicians and monitor pulse oximetry and other vital signs. This technology promises to bring more utility and functionality worldwide across the health care field.
As is true of any new technology, cellphone usage in the OR and other intensive care scenarios have a dark side. In this Orthopedic Medical Legal Advisor column, we will examine new sources of legal liability and related pitfalls that can be created when cellphones are used in the OR.
Infection risk, physician distraction
Nosocomial infection is a serious problem that has attracted national interest and investigation. In the sterile environment of the OR, there is a concern about contamination from cellphone use.
Cellphones are in close contact with user hands, and there are few standardized hygiene or cleaning protocols for such devices. Disease transmission from cellphones can occur because, unlike fixed phones, cellphones are used close to the patients and are taken outside the OR with the user. A number of early studies have confirmed the potential bacterial contamination carried on cellphones, particularly with species known to pose health care risks.
The risks of texting and other cellphone use while driving are well-recognized. Cellphone distractions are likewise being recognized as a technology hazard in health care delivery. In 2013, the non-profit ECRI Institute identified cellphone use as a leading technology risk.
In a Dallas lawsuit, an anesthesiologist who was distracted by a cellphone missed critical blood oxygen levels, and consequently, the patient died during surgery. During simulated surgery, interruption of resident surgeons by a cellphone call or a question asked during surgery led to an increased risk of surgical errors.
While experienced anesthesiologists may be gifted or skilled at multitasking and keeping up situational awareness in high-stress clinical scenarios, the same may not be true of all medical personnel. For example, texting may not affect vigilance during low-task load, but text-based activities require interaction and can be dangerously distracting for professionals with less experience. Vigilance refers to a state of readiness to detect and respond to small changes occurring at random intervals in the environment, and it is critical in demanding work environments, such as air traffic control, cockpit monitoring, surgery and anesthesia. Cellphone technology can reduce vigilance by creating multiple distractions, leading to lowered work performance and patient risk.
Because most medical errors occur in ORs, there is intense interest in identifying opportunities for safety during surgery. Cellphones are sources of distractions for the operating team, and some safety advocates have suggested banning cellphones in surgery, with understandable resistance from surgeons and medical staff. During a 2011 survey, half of perfusion technologists reported using cellphones while working heart-lung bypass machines during cardiac operations. A majority of medical workers believe they are immune to cellphone distraction, as they acknowledge seeing many colleagues distracted by the same technology during surgery.
In the evolution of flight safety, the sterile cockpit rule was developed to reduce accidents that result from distractions during take-off, taxi or landing, such as unnecessary crew conversations. The rule recognizes that a small percentage of people can truly multitask; the rest of us have significant declines in work performance with too many tasks. A sterile cockpit rule analogue should be implemented during critical phases of the operation, such as during the familiar time-out procedure or while opening implants, to minimize cellphone-induced distractions.
Cellphones generate electromagnetic radiation and should be kept clear of medical equipment, which should be designed to resist such signals. When a cellphone rings during work, it can create signal disturbances on cardiac monitors, ICU monitoring screens and pacemakers. The introduction of Bluetooth technology and newer equipment has overcome many of these early problems related to signal interference, but caution should be exercised until all medical equipment has been designed to be resistant against cellphone signals.
Lawrence H. Brenner
Cellphone use by the physician or patient during the physician-patient interview can create an unprofessional environment that undermines critical history-taking and discourse between parties. Likewise, cellphone and video recordings made by patients during clinical visits may be distracting for the physician and should be addressed before the visit. While health care personnel want to be accommodating to patients, it is worth remembering in many other environments, such as museums, theaters, immigration checkpoints in many countries and law courtrooms, often have absolute bans on all cellphone use that includes photographs and video recordings.
Privacy, legal concerns
Cellphones with a camera can create a considerable liability risk. The risks relate to possible breaches of medical confidentiality and intrusion into patient’s private life. While cellphones can facilitate learning, treatment and communication by capturing interesting diagnostic images or recording procedures, cellphones also risk exposing patient information to a public setting. Cellphone photos and videos can be loaded onto social media sites and related forums automatically, even without prompts from the user. Such breaches of patient information, absent express consent from the patient and proper data security measures, can create a serious legal risk.
For example, plastic surgeons, have faced lawsuits from patients for using “before and after” photos of patients on websites and advertisements, when the patients believed the photos were solely for medical records. In addition to invasion of privacy, the plaintiffs can attach allegations of battery, fraud and intentional infliction of emotional distress, with attendant punitive damages.
Photos with a patient in them are considered to be protected health information under the Health Insurance Portability and Accountability Act (HIPAA). If there is absolutely nothing in a photo taken with a cellphone or otherwise that can be uniquely identified to a patient, then no HIPAA violation can be established. But the situation can become more complex if the photo is of a patient room, and personal items in the room can be related to a specific patient.
In addition, HIPAA requires covered entities, such as health care providers, establish and implement information security and privacy policies, communicate these to personnel and enforce those policies; this also applies to cellphone use, as it does to other forms of information technology.
Recommendations
Cellphones, clinical applications, built-in cameras, music players, memory cards and related technologies have the promise of making medical practice more user-friendly, efficient and less error-prone. A blanket ban on such technologies in health care means many benefits will be discarded in misguided attempts to control risks. New technologies are continuing to emerge, and the utility of cellphones and the reliance of medical workers on this technology are likely to keep increasing in the future, with many benefits yet to be realized.
As a threshold matter, medical facilities and providers should recognize that in certain non-clinical zones, such as clinic waiting areas, corridors and reception areas, cellphones can and will be used by staff, patients and visitors alike. In contrast, in clinical patient areas, cellphone use may require some restrictions, if such use affects patient care, hygiene or confidentiality.
There are critical patient areas, such as ICUs and ORs, where the use of cellphones may have to be restricted to avoid distraction and errors.
Health care workplaces should set up hardware and software firewalls that control and prevent mass emails from mobile devices outside the workplace network. Blocking software should ensure internal data is not communicated to social media or advertising and marketing websites. Email services specific to the institution can bypass the need to use personal email services with attendant security concerns. Organizational rules for password security, password changes, employee training about IT protocols, security concerns and expectations should be in place.
Because of concerns about cellphone distractions during patient care, institutions should identify specific zones with wireless internet hotspots for professionals to use their cellphones. Conversely, cellphone use should be restricted in other sensitive or critical zones. Safety checklists can be incorporated into cellphone applications that are institution-specific, and institutional social networks can enable workers to communicate and exchange information in a secure fashion. A list of high-alert or important phone numbers, messages and emails can filter preferentially to health care providers, while leaving non-work-related and non-urgent communications to be dealt with at a later time and away from the critical patient-care space.
In terms of high-risk scenarios, more stringent guidelines are necessary, such as clearly articulated restrictions on taking cellphone photos or videos in the OR or other clinical settings. Since electronic devices can be a contamination risk, the use of sterilized bags to store cellphones when entering patient-care and other sensitive zones may be advisable, along with the use of gloves and sanitizing wipes after handling cellphones in patient care areas. A proactive stance in these matters will preserve the usefulness of mobile electronic devices for health care personnel in the face of continued adoption and technological advancement, while enhancing patient safety and avoiding risky distractions.
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- B. Sonny Bal, MD, JD, MBA, and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center. Brenner can be reached at lbrenner@balbrenner.com.
Disclosures: Bal and Brenner report no relevant financial disclosures