Take steps to restrict use of personal electronic devices in the office

Smartphones are the newest distracter in the healthcare environment.

A study of pediatric housestaff and faculty at a university-affiliated public teaching hospital noted that residents self reported missing a piece of clinical information in 19% of their cases and faculty in 12% of their cases due to distractions caused by smartphones. Faculty noted, however, that residents really missed 34% of key information.

The danger of using smartphones is a widespread problem not only relegated to the surgical theater. It can happen elsewhere at medical facilities, including private practices.

The correlation between patient safety and the use of personal electronic devices (PEDs) was reported on last year in Anesthesiology News and then in the New York Times’ front page coverage of the term “distracted doctoring.” As the public’s awareness on this matter has grown, reports of how these PEDs have led to several near misses, and medical errors have increased.

In our modern technologic world, we all have observed a smartphone user’s Pavlovian-like conditioning to focus on a text alert and then respond without question. Many states have recognized the dangers of smartphones by legislating bans on phone conversations and texting while driving.

Modern healthcare professionals are not immune to this behavior, a fact easily verified with a walk into any clinic or hospital in North America. Emerging research on the subject elucidates the problem. For example, one recent study found that 55% of perfusionists acknowledged that they had spoken or texted on cell phones during surgery.

STANDARD OF CARE FOR TORT LAWSUITS

If you are sued for causing a car accident that involved the use of a cell phone while driving, you will be held to the ordinary standard of care of the “reasonable man.” You likely will be held liable, especially if the accident occurred in a state where cell phone use is banned.

If you are sued for using a cell phone during surgery or treatment, you will be held to a higher standard than the “reasonable man.” You must have acted as a reasonable physician in your specialty under similar circumstances at the time of the incident. You can fall below the standard of care if you:

• do something a reasonably prudent doctor would not do under the circumstances, or

• fail to do something a reasonably prudent doctor would do under the circumstances.

• This standard of care initially was established in the seminal case of Pike vs. Honsinger in 1898. The law requires the following of the reasonable physician:

• knowledge (such as keeping up with continuing medical education),

• skill (such as intubations and suturing),

• ordinary and reasonable care (what is reasonable will, to a large extent, be established by expert testimony),

• superior knowledge in his or her specialty (for example, if the doctor is a family physician or internist, he or she is held to that standard),

• best judgment (an error in judgment is not malpractice); for a valid malpractice case, the medical care must be shown to deviate from good and accepted practice, and

• due care (such as follow-up and paying attention; no PED interruptions).

TRAIL OF EVIDENCE

In the event of a malpractice claim, the plaintiff’s attorney will use the PED argument to the benefit of his or her client, if possible.

For example, a plaintiff’s attorney may introduce recent studies and commentary showing that physicians’ attention often is being diverted by smartphones, tablet computers, and other PEDs. The attorney will use discovery to ascertain a doctor’s cell phone use and the times of calls and will introduce this as evidence. Other people’s observations can become testimony.

Even if you think you haven’t committed malpractice and your case is defensible, you may not want to go to trial. For example, in a recent case, a neurosurgeon was sued and the claimed damages were postoperative partial paralysis. The plaintiff’s attorney found that at least 10 cell phone calls took place during the time of the surgery. Wisely, the case was settled by the defense attorney.

Attorneys for plaintiffs are looking for cases such as these. As one malpractice attorney advertised, “Anyone believing their injuries or the injury or death of a loved one in a hospital or another medical setting may have been caused by medical errors resulting from distraction should contact an experienced medical malpractice attorney immediately.”

IMPLEMENT POLICIES

How do we address this issue on the professional and legal levels?

Several healthcare organizations, including the University of Rochester Medical Center in New York, have led the way by developing guidelines on the use of PEDs and then educating staff members on the policies.

National professional organizations also have taken up the cause. For example, the Society of Hospital Medicine has addressed this issue in its newsmagazine and journal and the Association of Perioperative Registered Nurses is working on guidelines for PED use in the operating theater.

If you are in private practice or a group of physicians, implement a policy that bans the personal use of electronic devices in the office. You would not want to ban these devices altogether, because they are a valuable resource, but you could ask doctors and staff members to have a separate device for personal use and keep them in a personal space. Also, notify patients when a PED is part of their medical treatment, because if something goes wrong, they may object to your perceived attention “diversion.”

Are technologic advances in medicine a risk prevention tool or a potential liability trap? The answer to both questions is yes. PEDs offer benefits to those who practice medicine.

Johnson is a health law attorney in Mount Kisco, New York. Papadakos is professor of anesthesiology, surgery, and neurosurgery at the University of Rochester Medical Center in New York and professor of respiratory care at Genesse College, Batavia, New York. Do you have a health law question you would like to have our experts address in this column? Send it to medec@advanstar.com. Also engage at www.twitter.com/MedEconomics and www.facebook.com/MedicalEconomics.