Did patient suffer harm due to doctor texting, emailing, or surfing the Web?
Did patient suffer harm due to doctor texting, emailing, or surfing the Web?
'This will be seen as a particularly damning piece of evidence'
Was a physician on Facebook or eBay during a procedure or surgery? "This will be seen as a particularly damning piece of evidence, implying that the physician wasn't concentrating on the case," says Robert M. Wachter, MD, professor and associate chairman of the Department of Medicine and chief of the Division of Hospital Medicine at University of California — San Francisco.
"This is an emerging issue, and I've only heard of a handful of lawsuits around this," says Wachter. "But you can be certain that it's now on the radar screen of plaintiff's attorneys. There will be more demands to see what the doctor was doing during a case that went bad."
According to Peter J. Papadakos, MD, professor of anesthesiology and director of critical care medicine at the University of Rochester (NY) Medical Center, "attorneys have become very cognizant in this. They know that younger physicians in particular are very much dependent on their devices."
"Over a 10-year period, people have become technology addicts," he says. "This addiction, in patient care, can cause deaths. But nobody has paid attention to this problem until recently."
While physicians have always dealt with distractions, they're now "constantly connected," says Anne Huben-Kearney, vice president of risk management for Coverys, a Boston-based provider of medical professional liability insurance and risk management services for healthcare professionals. "In the old days, a physician had a cell phone and beeper, but didn't have all the apps and games and bells and whistles," says Huben-Kearney. "It was more focused on work versus personal use."
Usage will come out
Attorneys now routinely look into whether physicians used portable devices to document and whether the doctors wrote the notes in their offices, homes, or cars, Papadakos says.
If documenting from home, physicians should indicate they are doing so, says Papadakos, such as, "I am writing this note from the quiet of my home office after I saw the patient in the hospital." "Otherwise, the attorney can say, 'You wrote these notes from home; obviously, you never went in to see the patient,'" he says.
A physician's texting, emailing, and posting might come out during a lawsuit because a patient or family noticed it or because other healthcare providers testify about it when they're deposed, says Marylou Foley, a senior claim manager at Coverys in Boston. "They will be asked what was going on at the time and asked about the actions of other people," says Foley. "Obviously, people have to tell the truth under oath."
Here are risk-reducing strategies for physicians:
• Physician groups should develop a policy for appropriate usage of social media and personal devices.
Pamela D. Tyner, JD, an attorney with Epstein Becker Green in Houston, TX, says, "This limits the likelihood that there will be information ripe for plaintiff attorneys to subpoena and possibly admit as evidence." [To view University of California -San Francisco Medical Center's policy on social media, go to http://www.ucsf.edu/about. Click on "UCSF Social Media," "Guidelines," "University of California Electronic Communications Policy." The "Code of eConduct" policy used at the University of Rochester Medical Center is included with the online version of this month's Physician Risk Management. Go to http://bit.ly/PAABGS. On the right side of the page, select "Access your newsletters." You will need your subscriber number from your mailing label. For assistance, contact customer service at [email protected] or (800) 688-2421.]
• Provide education to physicians.
Informing physicians that texts and emails might be discoverable can curb unwarranted and unprofessional posts, Tyner advises.
"When you educate people about this, a light bulb goes off. I tell them that A, you are going to hurt people, and B, you are going to get burned legally,'" says Papadakos. He notes that the University of Rochester now educates residents and physicians on the appropriate use of electronic devices. [A free copy of the computerized graphic presentation used for training is included with the online version of this month's Physician Risk Management.]
"We are at our infancy with including this in the curriculum," he says. "The question is, how do we make rules addressing such an overwhelming addiction to get information?"
If a patient notices a physician texting or using a laptop, it might appear that the doctor is distracted with something personal, even if this isn't the case. If a bad outcome occurs, this technology use might lead the patient to suspect the distraction was the reason, says Foley. "The use of technology may not have caused harm to the patient," she adds. "But if they perceive that it has, it can make it more difficult to defend a claim."
Coverys is handling an open claim involving a patient who felt she wasn't attended to in a timely manner because the physician was texting, which was observed by the patient's husband. "It may not have made any difference in the patient's outcome, and we may be able to defend it, but the fact the physician was texting does make it more difficult," says Foley.
Members of a jury might understand a physician getting distracted because of another patient, but they won't be sympathetic to a patient being neglected due to a doctor checking his email, says Foley. Even if a physician is using a personal device to obtain relevant medical information, the patient might assume otherwise and become angry, says Papadakos. "The computer is between the patient and the provider, so people get mad, saying, 'The guy was staring at the computer screen,'" he says, adding that angry patients are more likely to sue physicians.
Papadakos advises young physicians to explain to patients, "I apologize for turning my back, but I am entering the information you gave me, and I'm checking your labs."
"Treat the computer as a third person in the room. Introduce the computer as part of the health care team," he says. "Otherwise, people don't know what you are doing with a laptop open. They won't know whether you're looking at their medical record or your Facebook page."
• Use separate devices for personal and professional use.
Huben-Kearney says she has "grave concerns" about physicians using the same device for personal and professional communications.
"It's no accident there is such an increase in data breaches," she says. "Devices are getting lost and getting stolen. You should literally use two different phones." (See related story on whether a physician's texts and posts are discoverable, below.)
Sources
For more information on liability risks of "distracted doctoring," contact:
- Kenneth T. Lumb, Corboy & Demetrio, Chicago. Phone: (312) 346-3191. Email: [email protected].
- Peter J. Papadakos, MD, Director, Critical Care Medicine, University of Rochester (NY) Medical Center. Phone: (585) 273-4750. Fax: (585) 244-7271. Email: [email protected].
- Pamela D. Tyner, JD, Epstein Becker Green, Houston, TX. Phone: (713) 300-3213. Fax: (713) 300-3233. Email: [email protected].
- Robert M. Wachter, MD, Professor and Associate Chairman, Department of Medicine/Chief, Division of Hospital Medicine, University of California, San Francisco. Phone: (415) 476-5632. Fax: (415) 502-5869. Email: [email protected].
Lawyer can learn when and where doc texted Electronic discovery often permitted by the courts Would a court grant a motion to quash a subpoena to Facebook or some other social networking site? "The law in this area has not really been developed yet," says Kenneth T. Lumb, JD, an attorney with Corboy & Demetrio in Chicago. "We have only a few sporadic trial court orders or appellate court opinions to guide us." Thus far, most subpoenas to social media sites have come from defense attorneys looking for information or photographs that might be inconsistent with a plaintiff's claimed injuries, according to Lumb. "It seems that most courts have required some evidence that access to a social media site or an email account will produce relevant evidence before the court has allowed a subpoena to be enforced," he says. Courts may also conduct an in camera inspection of the documents produced, which is a private inspection to determine which information will be turned over to the requesting party, says Lumb. "I think the same standard will likely become the majority approach in cases involving discovery of healthcare providers' use of the Internet or cell phones during patient care," he says. If there is some indication that inappropriate use of electronic media could have contributed to a bad outcome, it might well be discoverable, Lumb explains. Attorneys are going to ask doctors, nurses, and allied health professionals if electronic media are being used in the operating room, post-anesthesia care unit, or the intensive care unit while the patient was there, says Lumb. Risk reduction for physicians should center on eliminating the distraction, Lumb advises. "I don't text while driving my car or while a witness is on the stand in a trial," he says. "I think a patient should be able to expect that while he's under general anesthesia, the people who hold his life in their hands are focused solely on him." Here are some ways "distracted doctoring" could come up during a lawsuit: • During depositions, colleagues might reveal that a physician was posting or texting before, during, or directly after a procedure. If an opposing party sufficiently illustrates this action possibly contributed to an alleged negligence, it might be subpoenaed from the social media sites and/or the handheld device manufacturers, says Pamela D. Tyner, JD, an attorney with Epstein Becker Green in Houston, TX. "Plaintiff attorneys are beginning to zero in on this type of evidence and 'e-discovery,'" she says. • If a physician is sued, his or her social media posts might be discoverable if the plaintiff's attorney sufficiently illustrates the relevance of the evidence. Marylou Foley, a senior claim manager at Coverys in Boston, says, "It's not a given that all this information will be allowed, but a plaintiff attorney could certainly petition the court to get it. My suspicion is that it would be allowed." The court might permit discovery of private and hidden social media postings, says Tyner. A growing number of courts are siding with the argument that posting information on a social media site means that the poster of information does not have a reasonable expectation of privacy, she says. • Under certain circumstances, plaintiff attorneys can get court orders to see what time something was texted or posted, much the way they can get telephone records to see what time calls were made. Foley says, "The information would probably be considered relevant to the case, if it's alleged that a physician's negligence was caused by inappropriate distraction." |
Was a physician on Facebook or eBay during a procedure or surgery? "This will be seen as a particularly damning piece of evidence, implying that the physician wasn't concentrating on the case," says Robert M. Wachter, MD, professor and associate chairman of the Department of Medicine and chief of the Division of Hospital Medicine at University of California San Francisco.
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