Malpractice Issues for the Radiologic Technologist

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1 Malpractice Issues for the Radiologic Technologist Carol Ann Marunich, Esquire Dinsmore & Shohl LLP 215 Don Knotts Boulevard, Suite 310 Morgantown, West Virginia X Dinsmore & Shohl LLP

2 Medical Malpractice Issues Technique/Positioning Patient Care HIPAA Medical Malpractice Process

3 Technique Requisition Form What is purpose of exam? Is it for general findings or specific review of organ?

4 Requisition form Retention policy of requisition form Kept in chart Discarded

5 Case Study Requisition for OB Complete Ultrasound Requirements for OB Complete exam Example - 4 chamber heart, and other organs Requirements for OB Limited exam Example amniotic fluid index or fetal positioning Lawsuit filed for inadequate exam

6 Case Study After gallbladder exam, technologist wrote on requisition form her impression that there were gallstones in gallbladder. Radiologist confirmed diagnosis. Pathology revealed no stones and lawsuit filed!! Moral: Don t diagnose or tell patient your impression of findings.

7 Technique Mammogram Annual (general) vs. Spot exam

8 Technique Quality of films Need to get good visual fields Clarity of films Reduce need for patient to return Reduce exposure levels for patient

9 Technique Quantity of films Make sure proper positioning for different views for accurate diagnosis Reduce need for patient to return Reduce exposure levels for patient

10 Patient Care Know hospital or facility policy on removing Bi-pap mask, IVs, etc. Comfort measures Watch out for giving water or food (crackers) to patient that is NPO Unhappy patients make complaints!!!

11 Case Study Allegation of x-ray tech removing Bi-pap mask where alleged patient experienced brain injury due to decreased levels of oxygen $$ paid to patient

12 Patient Care Slips/Falls Caution with elderly patients or patients with injuries to legs/feet or not stable on feet. $$ paid to patients on slip/fall cases

13 Patient Care Intoxicated Patients Beligerent Patients

14 Treating Minors Treating Minors How old is patient? If patient is a minor, informed consent must be obtained from his/her parent or legal guardian

15 Treating Minors Parental consent needed unless Patient is emancipated or considered a mature minor. An emancipated minor is one who is over the age of 16 and is married or has been declared emancipated by a court of law.

16 Treating Minors Mature Minors One who is between ages AND in the opinion of the attending physician the minor is of sufficient maturity to understand the nature and effect of that which he/she is being asked to consent.

17 Treating Minors An emancipated minor OR a mature minor may consent to admission, treatment and procedures without the consent of his/her parent or legal guardian.

18 Treating Pregnant Minors For the purpose of treatment of pregnancy (including prenatal care), venereal diseases or drug/alcohol abuse, parental consent is NOT required!!!!!

19 Treating Minors In circumstances where an emergency situation exists and the physician feels that waiting for parental consent would jeopardize life, limb, or bodily function, the minor may consent for him/herself.

20 Treating Minors For outpatient testing only: consent of a patient, surrogate decision-maker or legal guardian may be documented by a note, signed and included in the patient s chart.????? How does this relate for former policy language requiring parental consent?????

21 Treating Minors A minor parent may consent to procedures for his/her own child.

22 Patient with diminished mental capacity If the minor patient lacks the capacity to make an informed health care decision, informed consent MUST be obtained from the patient s legal guardian, Medical Power of Attorney or healthcare surrogate.

23 Patient Care CT Contrast Caution in injecting patient Caution with difficult stick attempts Unhappy patients make complaints!

24 Case Study CT exam done on patient but dye went into patient s eye $$ paid to patient for eye exam (No Permanent injury)

25 HIPAA Privacy rights of patients Improper disclosures can lead to complaints!

26 Are we still asking What is this HIPPO thing? The Health Insurance Portability and Accountability Act of 1996 (HIPAA) HIPAA Regs

27 Despite HIPAA Americans are STILL concerned about health care privacy. Two-thirds of Americans are concerned about the privacy of their health care information More than half of consumers are worried employers might use their personal health information to limit job opportunities One-eighth of consumers are putting their health at risk by adopting privacy-protective behaviors, such as foregoing medical tests California HealthCare Foundation, National Consumer Health Privacy Survey 2005

28 HIPAA You can t really have true health care privacy until they start making hospital gowns that close in the back. - Ian Morrison, PhD

29 Back to the Basics: The Privacy Rule A refresher on the PHI identifiers: (1) names; (2) all geographic subdivisions smaller than a State (including street address, city, county, precinct, zip code, etc.) (with some exceptions for using the initial 3 digits of the ZIP code); (3) All elements of dates (except year) for dates related to the individual: birth date, admission date, discharge date, date of death, etc. (except you can have an over 90 category); (4) Telephone numbers;

30 Back to the Basics: The Privacy Rule (5) Fax numbers; (6) addresses; (7) SSN; (8) Medical Records numbers; (9) Health plan beneficiary numbers;

31 Back to the Basics: The Privacy Rule (10) account numbers; (11) certificate/license numbers; (12) vehicle identifiers, serial numbers, license plate numbers; (13) device identifiers and serial numbers; (14) URLs

32 Back to the Basics: The Privacy Rule (15) IP address numbers; (16) biometric identifiers, including finger and voice prints; (17) full face photographic images and any comparable images; (18) any other unique number, characteristic, code.

33 If it s in your possession in your role as a covered entity, and it in any way identifies a person: It s PHI!!!

34 Back to the Basics: The Privacy Rule Permitted Uses and Disclosures: 1. To the individual 2. For treatment, payment and CE s own health care operations (TPO) 3. Pursuant to an authorization 4. As required by law 5. To Business Associates 6. For public health activities

35 Back to the Basics: The Privacy Rule 7. To health oversight agencies 8. concerning decedents 9. To organ procurement organizations 10. For research purposes 11. In a limited data set 12. For fundraising and underwriting (limited exception)

36 Back to the Basics: The Privacy Rule Authorizations: Specific elements are required: plain language, right to revoke, specific description of information to be used or disclosed, identification of person or entity to whom information to be disclosed termination date

37 Back to the Basics: The Privacy Rule Minimum Necessary Rule When using or disclosing PHI or when requesting PHI from another covered entity, a covered entity must make reasonable efforts to limit PHI to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request. Limit PHI access to workforce members who need to know the information in order to do their jobs, and only give them the minimum necessary amount.

38 Back to the Basics: The Privacy Rule 6 Exception to the Minimum Necessary Rule: Disclosures for treatment Disclosures to the individual Disclosures pursuant to an authorization Disclosures to DHHS for enforcement Disclosures required by law Disclosures required for compliance with the Privacy Rule

39 HIPAA Penalties The best way to deal with HIPAA is to ignore it and do the jail time. - Ian Morrison, PhD March 2002

40 HIPAA Penalties Civil: civil fines of $100 per violation (up to $25,000 for multiple violations of the same standard in any given calendar year) Criminal: criminal fines of up to $50,000 and/or up to 1 years imprisonment for knowingly violating HIPAA criminal fines of up to $100,000 and/or up to 5 years imprisonment for using false pretenses to violate HIPAA criminal fines of up to $250,000 and/or up to 10 years imprisonment for violating HIPAA with the intent to gain personally or commercially from the misuse of individually identifiable health information

41 Case Study 22 y.o.w.f. x-rayed at hospital Technologist called patient s house later and disclosed hospital visit to patient s mother and even disclosed type of x-ray and relayed concerns over findings. HIPAA violations and hospital policy violated

42 HIPAA and Medical Malpractice What potential claims lurk out there that can come back to haunt us?

43 Medical Malpractice Process Claim known by you Report claim to Risk Manager Report claim to own insurance company (Should you buy your own malpractice insurance?)

44 Medical Malpractice Process Lawsuit filed Written questions Deposition (oral questioning session) Expert witness battle

45 Medical Malpractice Process Trial Patient must show technologist owed duty (Don t diagnose) Patient must show technologist breached duty Patient must show injury and damages as a result of the breach Technologist defends by showing reasonableness

46 Questions Answers Ask because better to prevent risk than be involved in lawsuit.

47 DINSMORE & SHOHL, LLP Ms. Marunich is a partner of Dinsmore & Shohl, LLP. Ms. Marunich s practice has involved the defense of hospitals, long-term care and assisted living facilities, physicians, health care providers, as well as general civil litigation. For additional information, you may call Ms. Marunich at (304) X44, at or visit the firm s website at

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