EXECUTIVE SUMMARY

Cellphone use in ambulatory surgery centers (ASC) has led to high-profile legal snafus in recent years. Why allow patients and staff to carry cellphones in patient care areas?

  • The most common concern involves patient privacy. Patients and staff inadvertently could photograph, videotape, or audio-record other patients, violating their privacy under HIPAA.
  • Another problem is infection control. Cellphones are germ factories.
  • Cellphones create potential legal problems for surgery centers when physicians are recorded talking or acting unprofessionally.

An anesthesiologist preoccupied with sending text messages didn’t notice a patient’s oxygen level dropping until it was too late. An ambulatory surgery patient’s cellphone was left on in the operating room, and the patient later sued after hearing the anesthesiologist speak badly about him. A nurse’s aide and anesthesiologist put stickers on an unconscious surgery patient and snapped a photo — also resulting in a lawsuit.

Each case involved physicians and others getting into legal trouble because either patients or staff carried cellphones in patient care areas. In the case of the doctor who made fun of a patient while he was unconscious, the mistake cost her $450,000.1

These are just some of the legal reasons why ambulatory surgery centers (ASCs) should prohibit all patients and staff from bringing cellphones into operating rooms and other areas used for patient care.

“If you have a cellphone in the [ASC], then you could be recording things in the pre-op area with other patients and hear protected health information from them,” says William A. Miller, JD, partner and chair of the healthcare group at Higgs, Fletcher & Mack in San Diego.

Other reasons to prohibit cellphones: infection control and the potential for phones to create a distraction — as in the case of the texting doctor.

ASCs should be very concerned about potential breaches of privacy and HIPAA, says Gil Cabrera, JD, principal with The Cabrera Firm in San Diego.

It’s a mistake to give staff and patients full access to cellphones, which easily can violate patients’ privacy, he says.

“Even in waiting rooms, you’ll have people taking selfies,” Cabrera says. “You need to have policies that say, ‘Please do not take photographs in the waiting room.’”

Here’s the privacy risk: Suppose a patient takes a selfie and inadvertently captures a photo of another patient in the background of the picture. That additional person has just had his or her privacy breached.

“You’ve just told the world what that person is doing now,” Cabrera explains. “People do not often think about these things, but especially in those groups of settings, where you might be comfortable telling people in your world what is going on with every moment in your life, but that doesn’t mean other people are comfortable with it.”

Most people rely on their cellphones for video and photos, and this makes the ubiquitous devices a potential hazard.

“As the technology has improved, it also makes it easier for people to record without the knowledge and consent of other people,” Miller says. “I’m not saying the [ASC] staff or physicians are doing anything wrong, and we’re not trying to prevent people from seeing what they’re doing behind the scenes because we all want the best care for patients, but you can’t always prevent complications.”

Infection control also is important, and cellphones are microbe zoos.

“From the risk management side, these devices have a frightening amount of bacteria,” Cabrera says. “There are contamination issues.”

Staff will find it difficult to check their phones in a locker, but that is the safest strategy, he says.

“From a contamination standpoint, you don’t want staff checking their phones and handling biomatter,” Cabrera says.

Cellphone rules for staff also should apply to doctors in the ASC.

Miller has represented ASCs, including one in which the lawsuit was about whether an anesthesiologist had given the patient the wrong medication because of cellphone use.

“The surgery center was dismissed from the case because anesthesiologists are independent contractors, and we had a consent form that said the physicians are independent contractors,” he says. “The case went to trial, and the verdict was rendered against the anesthesiologist.”

ASC administrators and owners should ask this question: “What benefits are we getting by letting patients and patient representatives carry their phones in these areas?” Miller suggests.

Miller and Cabrera offer the following strategies for handling the issue of cellphones in the ASC:

  • Implement a written policy. Write policies and procedures (P&Ps) that make cellphone use rules clear to all staff and physicians, Miller says. A separate policy can explain the cellphone ban to patients.

“Explain the rationale behind the policy,” he says.

For example, an ASC could state that the cellphone ban in patient areas is for the protection of patient privacy rights, as well as for infection control purposes. ASCs also could reference electronic interference and that cellphones distract healthcare providers, Miller offers.

Employees and patients can store their phones in safe areas, such as in the patient’s personal bag and in employees’ purses or lockers.

  • Direct patients to sign the cellphone policy notice. “Put it in writing and have patients sign off on it,” Cabrera says. “Give yourself some kind of defensive position in case anything is used inappropriately.”

It’s not a perfect shield. If a patient captures something that is completely inappropriate, then the signed policy will not matter, he notes.

“But if they use the recording for any inappropriate purposes, then at least you have the position that you had made it clear that the ASC does not allow electronic devices in the room, and the person breached that policy,” Cabrera says.

  • Tell patients about the electronic device policy prior to surgery. When surgery centers call patients prior to the surgery to remind them of what they need to do to prepare, the person making the call can address the policy.

“In the pre-op call, say, ‘We want to let you know that you are welcome to bring your cellphone with you to the lobby area, but you cannot bring your phone back with you. We just wanted to give you a heads up, so you can plan accordingly,’” Miller says.

Then, when patients arrive for surgery and question the policy, ASC staff can respond, “Sorry, but we have this policy. We told you on the phone that you cannot bring your phone back with you,” Miller adds. “If on the day of surgery this becomes an issue, then you can say to the patient, ‘This is our policy and procedure. If you don’t want to follow it, we’re not going to proceed with your case.’”

The important thing is for ASC directors, physicians, and staff to be aware that cellphones can be a problem, Cabrera says.

“It’s everywhere. That’s what people don’t understand — video is endemic,” Cabrera says. “Wherever you are, as long as there are people around you, there are odds it will be captured on video.”

REFERENCE

  1. Burger J. Colonoscopy Patient’s Cell Phone Records Doctor’s Insults. Outpatient Surgery, June 24, 2015. Available at: http://bit.ly/2oH5bID. Accessed April 21, 2017.