Safety devices: Setting yourself up for a fall?

Your liability for not supplying safety devices

The decision to use needleless systems and safety canulas for IV staff can put you in quite a dilemma. To stay competitive, you’ve got to cut costs, and there’s no question safety devices are more expensive than traditional IV lines and needles. Brenda Bell, MTA, a senior project office with ECRI, a non-profit health services research agency in Plymouth Meeting, PA, says such devices are typically two or three times the cost of standard devices. But can you really put a price tag on protecting your staff from possible exposure to HIV, Hepatitis B, or other bloodborne pathogens?

As difficult as the question may be, it’s just the tip of the iceberg from the business perspective. Home infusion agencies are protected from tort damages by providing workers’ compensation. But what about those rare situations in which workers’ comp won’t protect your agency from a sizable lawsuit? What’s an infusion agency to do?

The writing on the wall says you should start budgeting for such safety equipment now. There are several groups nationwide who are just starting to push for major changes that will affect not only the equipment you use but also your liability if you don’t make safety devices available to employees.

Assess the situation

The number one priority for home infusion agencies is often meeting U.S. Occupational Safety and Health Administration (OSHA) requirements.

"There’s a direct relationship between this and OSHA requirements," says Elizabeth E. Hogue, JD, a health care attorney in Burtonsville, MD, who specializes in home care. "Agencies have got to abide by OSHA’s requirements governing the provision of equipment."

It’s important to note that while OSHA prefers you use safety devices, such steps aren’t required.

"OSHA does not endorse the use of any specific product, and to my knowledge, it’s not planning to recommend safety devices," says Natalie Grinder, an industrial hygienist with OSHA. However, OSHA requirements clearly indicate a preference for safety devices.

Under the bloodborne pathogens section (1910.1030), you’ll find a specific reference to protecting staff. 1910.1030 M.4.b(d)(2) requires the employer to institute engineering and work practice controls as the primary means of eliminating or minimizing employee exposure. The section later describes specifically what OSHA inspectors will look for.

The compliance officer shall determine through interviews or observation of work involving the use of needles whether proper engineering controls and work practices such as immediate disposal of used needles into a sharps container are used. Most preferable is the use of devices that offer an alternative to needles being used to perform the procedure. Examples of such devices include stopcocks (on-off switch), needle-protected systems, or needleless systems to connect intravenous lines. Other devices which are integral to the syringe such as self-sheathing needles allow both hands to remain behind the needle and require very little manipulation to isolate the needle safely.

Along the same lines, the U.S. Food and Drug Administration (FDA) issued a Safety Alert April 16, 1992, titled "Needlestick and Other Risks from Hypodermic Needles on Secondary IV Administration Sets — Piggyback and Intermittent IV." In the alert, the FDA stated, "We strongly urge that needleless systems or recessed needle systems replace hypodermic needles for accessing IV lines."

However, preferred methods are a long way from being required.

Meeting OSHA standards may no longer be your biggest concern. You could find yourself in deep water in other areas if you continue to use traditional canulas and tubing. For example, several legal experts tell Home Infusion Therapy Management that workers’ compensation issues should not be overlooked.

Sure, workers’ compensation will cover your agency in all but the rarest of situations when it comes to staff injuries. But Ronni Solomon, JD, with ECRI, says you shouldn’t make the mistake of thinking workers’ comp isn’t without its limitations. She says that a handful of suits have come up under theories of "intentionally creating a hazardous situation or intentionally disregarding the employee’s safety. One could envision that an employee could allege this, which falls into this exception."

She adds that such lawsuits alleging negligence don’t have to come just from full-time staff.

"Remember, workers’ compensation is the remedy for employees," she says.

She suggests taking a careful look beyond your immediate staff, particularly in the current cost-cutting environment that encourages outsourcing and the use of independent contractors. There are several groups of individuals your agency may be using to provide care who aren’t covered under workers’ comp and, therefore, can sue you, such as:

• interns;

• medical students;

• independent contractors;

• caregivers in the home.

All are potential lawsuits waiting to happen, as it’s unlikely any are covered by your workers’ compensation coverage. Yet, they’re forced to use the devices you provide.

"That’s a risk you might want to look into," warns Solomon. "Look at your contracts with those folks, and make sure the contract says that their employer must supply workers’ comp."

Looking down the road, the IHWSC plans to attack workers’ compensation laws and make agencies more liable for failing to protect staff.

"We haven’t actually embarked on this, but we intend to try to have the workers’ comp law amended to better protect health care workers by unveiling some of the shields," says Tereskerz.

Hogue says the bottom line may well be investing in the safety devices for your agency’s well-being and peace of mind.

"Just from a practical point of view, you want to do all you can to prevent needlesticks, even if it’s moving beyond OSHA requirements," she says. "Lawsuits alleging exposure not only to HIV but to hepatitis is not something any employer in his or her right mind would want to have happen. They’re expensive and time-consuming. You want to do all you can to avoid them."

However, in most situations, even if an employee suffers a needlestick that leads to exposure and positive tests for a bloodborne pathogen, workers’ comp limits an employee’s legal remedy.

"They will be barred to sue an employer if there is workers’ compensation provided," notes David White-Lief, JD, of Breakstone, White-Lief & Gluck, PC, a Boston law firm specializing in health care. "That is the exclusive remedy for an employee."

Is employer protection worth the price?

However, not everyone agrees that going to such lengths to protect an employer is good.

"Workers’ comp is bad in that employees don’t get additional damages," says Joan Polacheck, JD, McDermott, Will & Emery, in Chicago, a health care law firm. "Employees are guaranteed that the employer will pay for the injuries, but they can’t sue for damages unless it’s an extreme case."

Patti Tereskerz, JD, PhD, an assistant professor of neurosurgery with the International Healthcare Workers’ Safety Center (IHWSC) at the University of Virginia, in Charlottesville, agrees. She goes so far as to say that workers’ comp may actually delay some agencies from switching to safety devices.

"Workers’ comp has really done a disservice in that it has given economic incentive not to purchase the more expensive safety devices," she says. "Employers know that if they don’t purchase them and an employee gets stuck, they are shielded from liability. And because workers’ comp precludes lawsuits, there is no economic incentive to purchase these safety devices. With managed care and a highly competitive environment, they’ll cut costs where they can."

Unless an employee can show extreme circumstances such as an injury was willful, an employer is protected. But there have been out-of-court settlements between health care workers infected with a bloodborne pathogen as the result of a needlestick and the manufacturers of traditional canulas and IV tubing. Tereskerz says workers’ comp has led to individuals being given no choice but to pursue the manufacturers.

"The reason you see the plaintiffs going after the manufacturers is not only that it is a deep pocket but also that it is the only pocket," says Tereskerz. She notes that most settlements reached are kept confidential, but she’s heard about their existence "through the grapevine."

But not everyone sympathizes with the manufacturers.

"I think the manufacturers have been extremely negligent in continuing to market their inherently dangerous products alongside these safer products," says Bill Borwegen, health and safety director for the Service Employees International Union in Washington DC. "I find it morally objectionable."

Tereskerz notes that the use of safety devices is far from widespread. According to IHWSC research, there is only about a 15% market share penetration for safety devices. Yet, she says IHWSC research shows that 90% of the hollow-bore needlestick injuries could be prevented with a safety device.