COVER STORY
them only during lunch and breaks or in the dressing rooms. “We strongly encourage them to leave their phones in their lockers because if they are caught using them outside of those areas, the supervisors confiscate them or require them to secure their devices in their lockers,” she says. “It has been challenging because most
people
think of their phones as an appendage of their body, one they cannot sur- vive without. They often argue that many of the surgeons use their mobile devices to text them, stating things like ‘I’m on my way,’ or ‘I need this equipment.’ Although this is a good staff-physician bond, those nurses are often working other cases and should not be disturbed.”
Exception Proves the Rule There are, of course, exceptions to the rule.
What if patients want to record postop instructions on home care? “They might want to record because patients might not understand what they are hearing,” Stinchcomb says. “As a matter of fact, I can safely say that in my 20+ years in this industry, I cannot remember a surgical episode where any staff members were derog- atory to the patients. I typically find staff very respectful of the fact that they have a patient who is under some level of sedation and fully reliant on them for safe and proper care.” Hooper says there have been
situations where the families of elderly patients asked to make recordings of the postop instructions on home care to play back later to the patient. “We have made exceptions for this but only if the physician agrees,” she says. “What occurred in Virginia is cer-
tainly not the norm,” Stinchcomb says. “If this were to happen with a provider, I would hope the staff at any ASC would move through the proper peer review channels after immediately stopping the behavior in
A Legal View
Allowing an electronic device inside the operating room might compromise safety in the ASC, says William A. Miller, partner at Higgs, Fletcher & Mack LLP in San Diego, California.
“You do not want an electronic device on a patient in an environment with oxygen because it might spark and result in a fire and burns,” he says. “It also might electromagnetically interfere with grounding and interfere with monitoring devices such as the EKG, anesthesia machine, etc.”
As far as the preoperative and post-anesthesia care unit are concerned, there are Health Insurance Portability and Accountability Act of 1996 (HIPAA) concerns for other patients, Miller says. “If a patient is recording in a small area, he or she could well be violating the other patients’ rights, and the ASC would be liable for that,” he says. “Under state and federal privacy rights, an ASC could have a policy limiting the use of mobile devices within its premises.”
If a patient shows up with a personal electronic device and refuses to part with it, explain to the patient that it is not safe to have it on them because it could be violating the privacy rights of other patients and give them the choice to either put the device away or not have the surgery, Miller says. “If the patient still refuses to hand over the device, enlist the support of the physician and ask the surgeon to tell the patient that he or she cannot allow the patient to jeopardize the safety of the patient or violate the privacy of other patients,” he says. “If the patient still does not budge, the surgery should be canceled, the staff and physician should document the incident and the choice afforded to the patient, and the patient should be asked to acknowledge in writing their election to not proceed with the surgery.”
Long term, all ASCs should have a written policy and have the medical staff on board with the policy, Miller suggests. “Surgeons should be on board with the policy preoperatively, interoperatively and postoperatively,” he says. “If a surgeon does not agree because ‘it is a valued patient,’ go up the chain of command to the medical director. The medical director would need to enforce the ASC’s written policy.”
ASCs also have the right to ask a patient to give them their phone and tell them that they would keep it with the patient’s belongings, Miller says. “If the patient says that he or she needs his or her phone to call someone, the ASC could make that call for them.”
Under state and federal privacy rights, an ASC could have a policy limiting the use of mobile devices within its premises.”
—William A. Miller, Fletcher & Mack LLP
the OR.” As a consultant, she works with many facilities and provides policies that apply to areas like licensing, certification and accredi- tation. Her company has developed
a policy dealing with the issues of ‘today’ rather than on cell phones alone, she says. After a legal review the company will share the policy with its clients.
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