Distracted Physicianing page 3 Counsel s Corner page 4 ADA Rights page 6 Case Hx: Care Interrupted page 7

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1 Issue 10 August 2014 Utah Issue O Distracted Physicianing page 3 Counsel s Corner page 4 ADA Rights page 6 Case Hx: Care Interrupted page 7 R PROVIDING MEDICAL PROFESSIONAL LIABILITY IN ARIZONA, COLORADO, NEVADA AND UTAH

2 About us Our mission is to protect and defend the practice of medicine in Arizona, Colorado, Nevada and Utah. Executive Staff: James F. Carland, III, M.D. President & Chief Executive Officer Ronald E. Malpiedi, Vice President & Chief Operating Officer Edward G. Marley, MBA, Vice President & Chief Financial Officer Darren J. Palmer, Vice President & Chief Information Officer Robin L. Charles, MBA, CIC Vice President, Marketing & Corporate Communication Walt Davis, Vice President, Claims Mary K. Hedin, MBA, RPLU, Vice President, Underwriting Leon W. Kochan, M.C.Ed, Vice President, Human Resources Julie A. Ritzman, MBA, Vice President, Risk Management Services MICA was founded in 1976 after the largest medical professional liability (MPL) insurance carrier announced it was no longer underwriting MPL insurance coverage for the physicians of Arizona. MICA offers stability through the peaks and valleys of the insurance cycle. Our mission is to protect and defend the practice of medicine in Arizona, Colorado, Nevada and Utah. Our vision is to be the insurance company of choice for physicians and their groups, medical facilities and nurse practitioners. November 2 MICA Risk Rundown August August Board of Trustees: James F. Carland, III, M.D., Chairman Marc L. Leib, M.D., Vice Chairman Joseph W. Hanss, Jr., M.D., Secretary Douglas P. Jensen, M.D., Treasurer Phyllis I. Biedess James G. Leiferman, M.D. Steven P. Matteucci, J.D. Jeffrey W. Morgan, D.O. Karen J. Nichols, D.O. David A. Pedersen, M.D. J. Greg Rula, M.D. Amy A. Silverthorn, M.D. Walter K. Sosey, M.D. Charles W. Swetnam, M.D. Michael A. Trainor, D.O. Our values include outstanding service to our members, affordable insurance coverage, prudent underwriting principles, relevant risk management programs to educate and protect our members, aggressive defense against claims, and paying dividends to our members when financial conditions warrant. In fact, over the past five years, we have paid $212 million in dividends to our members.

3 Distracted Physicianing A December 14, 2011 article in the New York Times highlights a growing concern in healthcare safety which has been referred to as "distracted physicianing." The problem is that while computers, smart phones, and other devices can enhance communication among medical professionals, improve accuracy of medical records, and help avoid errors, the devices can divert clinicians' eyes and minds from the patient. Hospitals and physicians offices, hoping to curb medical error, have invested heavily to put computers, smart phones and other devices into the hands of medical staff for instant access to patient data, drug information and case studies. But like many cures, this solution has come with an unintended side effect: physicians and nurses can be focused on the screen and not the patient, even during moments of critical care. And they are not always doing work; examples include a neurosurgeon making personal calls during an operation, a nurse checking airfares during surgery and a poll showing that half of technicians running bypass machines had admitted to texting during a procedure. One study, published in Perfusion, found that 55% of perfusionists said they had texted, ed or otherwise used their phone while running heart-lung machines during heart bypass surgery. My gut feeling is lives are in danger, said Dr. Peter Papadakos, who recently published an article on electronic distraction in Anesthesiology News. We re not educating people about the problem, and it s getting worse. Physicians and healthcare professionals have always faced interruptions from beepers and phones, and multitasking is simply a fact of life for many medical jobs. What has changed is that they face increasing pressure to interact with their devices. In response, some hospitals have begun limiting the use of devices in critical settings, while schools have started reminding medical students to focus on patients instead of gadgets, even as the students are being given more devices. Many hospitals and outpatient facilities have implemented policies advising physicians on how to minimize distraction on their mobile devices. An article published in Anesthesiology, February 2013 Vol. 118 Issue 2 p , is a study to assess the effects of divided attention on patient monitoring, such as detecting auditory changes in arterial oxygen saturation via pulse oximetry. The study concluded that most anesthesia accidents are initiated by small errors that cascade into serious events. Lack of monitor vigilance and inattention are two of the more commonly cited factors. Reducing such errors is thus a priority for improving patient safety. The American Association of Nurse Anesthetists (AANA) recently issued a new policy stating that "Continuous observation and vigilance are the basis of safe anesthesia care." Non-essential distractions, especially those associated with use of mobile devices (smart phones, tablets, PDAs) may lead to significant patient safety lapses." The AANA supports the use of mobile devices for patient-related communication among members of a patient care team to enhance the delivery of care, but says CRNAs should avoid the unnecessary use of these tools when delivering anesthesia care services. Using smart phones to access clinical applications is fine. Using smart phones to text, chat or check out Facebook is not. The AANA is also concerned about mobile device use in the OR causing bacterial contamination and interfering with medical equipment. Perhaps it s time to consider the issue of medical mindfulness, says John Halamka, MD, MS in an AHRQ Web M&M article in December We need to consider our focus on the immediate circumstances surrounding ourselves and our patients. This begins with the deliberate elimination of inputs that take us from our obligation to the patient. Mindfulness is as much a matter of self-preservation as it is an obligation to those we serve. The issue of attention crash and self-awareness should be part of an ongoing dialog among physicians, especially medical trainees. August 2014 MICA Risk Rundown 3

4 Counsel s Corner QWhat do physicians and surgeons need to consider when patients want to video or audio record an office visit? Do they need the physician or surgeon s permission? Can a recording be used against the physician or surgeon if there is a medical malpractice suit? AMost modern cell phones and tablets have the ability to record, surreptitiously or not, conversations between physicians/ surgeons and patients. There is a debate within the medical community regarding whether the recording of medical appointments should be allowed. Some view this technology as an important new tool in the treatment of patients. One obvious benefit is that many patients have a tendency to forget much of what is told them during the office visit. As such, many physicians believe that recording office visits or conversations will improve physician-patient communication and lead to better patient compliance and understanding. Some even believe that the recording of appointments will lead to fewer medical malpractice lawsuits because patients will be better informed and more likely to follow physician advice. There are certainly downsides to allowing a patient to record an office appointment. For example, many physicians/surgeons question whether the recordings could be used against them in a malpractice lawsuit. The admissibility of such recordings turns on several questions of law and may vary from state to state. There are already several malpractice cases around the country in which courts have allowed recorded medical office visits to be used at trial. To be safe, a physician/surgeon should assume that the recorded conversation could be, and will be, used in any potential litigation. For example, in Virginia, a patient sued several medical providers who performed his colonoscopy. The patient left his phone on during the procedure, while he was unconscious. During the procedure, the medical team repeatedly ridiculed the body of the patient and made several other offensive and unprofessional comments. Upon hearing the recording, the patient sued. Whether the patient will recover any damages is yet to be determined. Nonetheless, the lawsuit is 4 MICA Risk Rundown August 2014

5 BRIAN P. MILLER Lawyer, Snow Christensen & Martineau certainly a nightmare for the physicians involved. Unfortunately, whether an office visit is recorded may not be up to the physician. Many patients are surreptitiously recording appointments without asking permission. It is only illegal to record a conversation without the consent of all parties in twelve states. All other states, including Utah, allow the recording of a private conversation so long as only one of the parties involved is aware. As such, a patient may be protected legally if he surreptitiously records an office visit. There are other Utah statutes that may provide some protection for physicians. For instance, Utah Code Ann makes it a misdemeanor to install a hidden camera or audio recorder to tape a person in a private place. This statute, however, has never been tested with regard to a physician/surgeon s appointment with a patient. For those physicians/surgeons who want to preclude the recording of appointments, several steps can be taken. (1) Post a sign at patient check-in stating that any electronic recording is strictly prohibited at that location; (2) Create a written policy prohibiting the use of recording devices during appointments, and include that written policy in the patient in-take forms; (3) Educate the office staff and ensure there is uniformity regarding how to respond to a patient that requests to record a conversation. These simple steps may prevent some surreptitious recording that would otherwise occur. In the end, however, a recording in Utah, made by a patient, even without the physician s knowledge or consent, may very well be used against a physician in a subsequent medical malpractice case. Brian P. Miller Lawyer 10 Exchange Place, Eleventh Floor Salt Lake City, Utah Phone: (801) , Fax: (801) bpm@scmlaw.com August 2014 MICA Risk Rundown 5

6 ADA Rights The Department of Justice announced in July that it had filed a lawsuit in U.S. District Court against a primary care physician in Florida, alleging that the physician and the medical practice violated the Americans with Disabilities Act by discriminating against two of his patients, a married couple, who are deaf. The complaint alleges that the physician and the practice violated the ADA by retaliating against the couple because they engaged in activities protected under the Act. The suit was filed because the physician and medical practice terminated the couple as patients when they pursued ADA claims against a hospital for not providing effective communication during an emergency surgery. The hospital is located next door to and affiliated with the physician s practice. The complaint alleges that the couple threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, the physician, who was the couple s primary care physician, immediately terminated them as patients. The enforcement of the ADA is a top priority of the Justice Department's Civil Rights Division. The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA. The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA. The department's Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit and to learn more about the ADA and other laws enforced by the Civil Rights Division. 6 MICA Risk Rundown August 2014

7 Case Hx: Care Interrupted A 65-year-old man with dementia was admitted to a major medical center from a nursing home for replacement of a percutaneous endoscopic gastrostomy (PEG) tube, which had become dislodged. The patient had a history of an intracardiac mural thrombus and was on long-term anticoagulation with warfarin. At the time of admission, his INR was 1.4. Since the goal INR was , he was not adequately anticoagulated and was at risk for stroke from the cardiac thrombus. He underwent successful PEG tube replacement on hospital day one. Later that day, the resident on the team decided to prescribe warfarin 10 mg per day, an increase over the patient s usual dose of 5 mg/day, for 3 days in an attempt to increase the INR into the target range. days. Because everyone on the team thought the medication had been stopped, no one checked the patient's INR. On hospital day four, the patient developed shortness of breath, tachycardia, and hypotension. An echocardiogram revealed hemopericardium with evidence of tamponade. The patient required emergency open heart surgery. His INR was 8.5 at the time. The team felt he had spontaneous bleeding into the pericardium from receiving the extra doses of warfarin. The patient survived the operation and ultimately was discharged back to the nursing home after a 3-week hospital stay. Problems with this case: The resident never completed the order to discontinue the warfarin, and the patient continued to receive 10 mg each day for the next 3 days. On hospital day two, the resident and intern were rounding with the attending and discussed the plan for ongoing anticoagulation. The attending wanted to confirm that the intracardiac thrombus was still present to justify ongoing anticoagulation. The attending asked the resident to stop the warfarin until they could obtain an echocardiogram of the heart. 1 2 No physician or resident reviewed the medication list for the next few days so no one recognized that the patient was still receiving the warfarin. 3Everyone on the care team thought the medication had been stopped so no one checked the patient's INR. This academic medical center had a robust computerized physician order entry (CPOE) system that allowed entry of orders using handheld devices and smart phones. When the attending stated to stop the anticoagulation for this patient, the resident began to enter the order into her smart phone. As she was entering the order, she received a text message from a friend regarding an upcoming party, and she confirmed her attendance through text messaging. The team moved on to the next patient. The resident never completed the order to discontinue the warfarin, and the patient continued to receive 10 mg each day for the next 3 Discussion: The potential benefits of mobile devices in healthcare are many. Mobile devices, including smart phones and tablet computers, can be used in conjunction with clinical information systems, such as EHRs or CPOE. In this case, entering an order was interrupted by a personal text message. These interruptions are a significant potential danger. Interruptions to workflow can be associated with medical errors and risks to patients. Physicians should be aware that routine personal issues/interruptions may adversely affect the delivery of quality care. Policies and technologies should be implemented to mitigate medical errors and improve patient safety when using mobile devices. August 2014 MICA Risk Rundown 7

8 2602 E Thomas Rd Phoenix, AZ PRSRT STD U.S. POSTAGE PAID SALT LAKE CITY, UT PERMIT NO Mutual Insurance Company of Arizona MICA defends physicians with compassion. They protect insureds and are concerned about their well-being throughout the claim and litigation process. Jaryl L. Rencher, Esq. MICA-Appointed Defense Attorney Mutual Insurance Company of Arizona Medical Professional Liability Insurance (801) , (800) Mr. Rencher is compensated by MICA for providing defense work for MICA policyholders. He was not compensated for appearing in MICA advertising. The information contained in this publication is intended to provide general information for review and consideration. The contents do not constitute legal advice and should not be relied on as such. If you need legal advice or assistance, it is strongly recommended that you contact an attorney as to your specific circumstances.