Carol Ann Marunich, Esquire Dinsmore & Shohl LLP
215 Don Knotts Boulevard, Suite 310 Morgantown, West Virginia 26501 304-296-1100 X44
Malpractice Issues for the Radiologic Technologist
Medical Malpractice Issues
• Technique/Positioning
• Patient Care
• HIPAA
Technique
Requisition Form
What is purpose of exam?
Is it for general findings or specific review of organ?
Requisition form
Retention policy of requisition form Kept in chart
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
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.
Technique
Mammogram
Technique
• Quality of films
– Need to get good visual fields – Clarity of films
– Reduce need for patient to return – Reduce exposure levels for patient
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
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
Case Study
Allegation of x-ray tech removing Bi-pap mask where alleged patient
experienced brain injury due to decreased levels of oxygen
Patient Care
Slips/Falls
Caution with elderly patients or patients with injuries to legs/feet or not stable
on feet.
Patient Care
Intoxicated Patients Beligerent Patients
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…”
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.
Treating Minors
Mature Minors
One who is between ages 16-18 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.
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
Treating Pregnant Minors
For the purpose of treatment of
pregnancy (including prenatal care), venereal diseases or drug/alcohol abuse, parental consent is NOT
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.
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?????
Treating Minors
A minor parent may consent to
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.
Patient Care
CT Contrast
Caution in injecting patient
Caution with difficult stick attempts Unhappy patients make complaints!
Case Study
CT exam done on patient but dye went into patient’s eye
$$ paid to patient for eye exam (No Permanent injury)
HIPAA
Privacy rights of patients
Improper disclosures can lead to complaints!
Are we still asking “What is
this HIPPO thing?”
The Health Insurance Portability and Accountability Act of 1996
(HIPAA)
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
HIPAA
“You can’t really have true health care privacy until they start making hospital gowns that close in the back.”
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);
Back to the Basics:
The Privacy Rule
(5) Fax numbers;
(6) Email addresses;
(7) SSN;
(8) Medical Records numbers;
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;
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;
If it’s in your possession in your role as a “covered entity,” and it in any way identifies a person: It’s PHI!!!
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
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)
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
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.
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
HIPAA Penalties
“The best way to deal with HIPAA is to ignore it and do the jail time.”
- Ian Morrison, PhD March 2002
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
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
HIPAA and Medical
Malpractice
What potential claims lurk out there that can come back to haunt us?
Medical Malpractice Process
Claim known by you
Report claim to Risk Manager
Report claim to own insurance company (Should you buy your own malpractice
Medical Malpractice Process
Lawsuit filed
Written questions
Deposition (oral questioning session) Expert witness battle
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
Questions
Answers
Ask because better to prevent risk than be involved in lawsuit.
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) 296-1100 X44, email at [email protected], or visit the firm’s website at www.dinslaw.com.
