THE INCREDIBLE TECHNOLOGIST By Brenda Craig, R. EEG/EP T., CNIM 2015 ISETT Annual Meeting DISCLAIMER I have no formal educational background in legal matters. What is presented here is based on personal opinion developed through experiences encountered or from others whom have much more knowledge then I. The goal of this presentation is simply to challenge you to take a closer look at how you practice and to consider if there might be areas you might want to investigate and refine to minimize your risk of liability. We will go through a lot of potential questions you could encounter. Take a moment to consider if you have or need to have protocols in place that address them. LEGAL TERMS LITIGATION is making something the subject of a lawsuit Litigation is civilized, legalized warfare SUBPOENA is a written command requiring you to appear in court as a witness to give evidence DEPOSITION is a formal statement that someone who has promised to tell the truth makes so that the statement can be used in court. PLAINTIFF is the initiator of the lawsuit and has the burden of proof DEFENDANT is one/ones who the lawsuit is against NEGLIGENCE is failure to use reasonable care, resulting in damage or injury to another YOUR EVERYDAY DUTY a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence It is the legal responsibility of any healthcare practitioner to be a practitioner of safe care. Your policies and procedures should be the bedrock for how you practice. There is possible liability for not following them There is possible liability for not putting them into place P&P are not static but fluid and ever- evolving and should be reviewed/updated at least annually. THE PLAINTIFFS ROLE The plaintiff seeks damages by proving you have been negligent in services provided The plaintiffs attorneys job is to discredit you and show to the jury that there was breach of duty on your behalf THE PLAINTIFF TYPICALLY HAS 2 YEARS TO FILE A CLAIM There are exceptions to this that can extend this limitation. A bad outcome does not mean that negligence has occurred. The astronomical cost of living with a disability can be the driving force in someone choosing litigation as a possible means providing dollars to help them. MEMORY MARATHON 1.You have been named in a lawsuit 2.You have been called to give testimony because you were present during the case. Clearly remembering the details of events that occurred years ago can be nearly impossible without something to trigger that memory. As an END Technologist, the importance of thorough documentation cannot be overstated. Many of the questions asked in the examples that follow could be answered if protocol has been followed and documented properly. EVIDENCE Proving negligence will be done by providing evidence of such. Anything that serves as a means to make issues clear IOM may represent only one of many facts that might be required to substantiate a particular issue May be composed of testimony, documents, objects, and/or admissions If it isnt documented, it will be hard to prove it happened. THE EXPERT WITNESS One way of proving negligence may be from the testimony of an expert witness. The expert witness cannot render an opinion without the accompanying facts on which the opinion is based. He/she will review all the depositions, along with any submitted data and determine if reasonable protocol was followed and standard of care was delivered. Text books are not admissible as sole evidence because a text book cannot be cross-examined by the defendants lawyer or the jury. YOU HAVE BEEN SUBPOENAD A subpoena is a written command requiring you to appear in court as a witness to give evidence. These items may also be subpoenaed as supporting evidence: POLICIES PRE-OPERATIVE AND INTRAOPERATIVE NURSING RECORDS DATA, INCLUDING WATERFALLS, CURSOR TABLE, STIMULUS PARAMETERS, EVENT LOG, HAND WRITTEN NOTES TECH REPORT ANESTHESIA RECORD REMOTE MD REPORT OPERATIVE REPORT WHAT DO YOU DO? PREPARE!! Contact your: hospital attorney group insurance attorney personal malpractice attorney. A meeting should be scheduled with your attorney prior to your deposition. You will begin the journey of educating him/her in the area of your specialty so that he/she can represent you as accurately as possible You will go over the court documents to be presented DEPOSITION DETAIL BE PREPARED!! No one should approach a deposition without significant preparation. KNOW ANSWERS BEFORE AND BRING SUPPORTING EVIDENCE TO DEFEND THEM. Along with your attorney, the Plaintiffs attorney, the Plaintiff, and any others named in the lawsuit and their attorneys may be present. NOTE SOME BAD ANSWERS A deposition is a formal statement that someone who has promised to tell the truth makes so that the statement can be used in court. YOU HAVE A RIGHT TO HAVE A COPY OF THE DEPOSITION TO READ OVER. IF YOU FIND ERRORS, YOU CAN FILL OUT AN ERRATA SHEET NOTING ANY ERRORS YOU THINK THERE ARE IN THE TRANSCRIPTION. EXAMPLES OF TYPES OF DEPOSITION QUESTIONS DEPOSITIONS ARE LENGTHY AND ARE ALL DIFFERENT. THE FOLLOWING SLIDES ARE EXAMPLES OF TYPES POTENTIAL QUESTIONS THAT COULD BE ASKED OF YOU. THEY ARE IN NO CERTAIN ORDER, AND YOUR DEPOSITION MAY NOT BE EITHER. PERHAPS SOME OF THESE QUESTIONS WILL GIVE YOU PAUSE FOR CONSIDERING IF YOUR PRACTICE NEEDS TO BE REFINED IN SOME WAY. DEFENDANT TECHNOLOGIST DID YOU TALK TO ANYONE ELSE YOU HAVENT ALREADY TOLD US OF ABOUT WHAT HAPPENED DURING THIS CASE? DO YOU REMEMBER WHAT THE DISCUSSION WAS? WHAT IS THE PURPOSE OF INTRAOPERATIVE MONITORING? HOW DOES IT DO THAT? Whether explaining to your attorney or the plaintiffs, you must be able to give a clear and concise explanation of what you do. This speaks to credibility through your knowledge. Honesty speaks to credibility. DEFENDANT TECHNOLOGIST TELL ABOUT YOUR EDUCATION HISTORY, W/DATES TELL ABOUT YOUR WORK HISTORY, W/DATES TELL WHAT WAS INVOLVED IN GETTING YOUR IOM CERTIFICATION HAVE YOU HAD ANY FORMAL TRAINING SINCE RECEIVING CERTIFICATION? IS THERE SOMEONE WHO IS A SUPERVISOR/MANAGER FOR IOM? HOW DO YOU DETERMINE WHICH OPERATIVE PROCEDURES YOU ARE GOING TO BE INVOLVED WITH AS OPPOSED TO OTHER TECHS? Knowledge speaks to credibility. Lack of continued learning may imply mediocrity and the potential of practicing in an outdated manner. Training and experience imply reliability which in turn speaks to credibility. DEFENDANT TECHNOLOGIST WHAT ORGANIZATION SPONSORED THE CONTINUING EDUCATION PROGRAM? DO YOU HAVE TO HAVE A CERTAIN NUMBER OF CEUS IN ORDER TO RENEW YOUR CERTIFICATION IS THERE SOMEONE WHO IS A SUPERVISOR/MANAGER FOR IOM? WHAT DO THEY DO? HOW DO YOU DETERMINE WHICH OPERATIVE PROCEDURES YOU ARE GOING TO BE INVOLVED WITH AS OPPOSED TO OTHER TECHS? DEFENDANT TECHNOLOGIST WHAT HAVE YOU REVIEWED PRIOR TO THE DEPOSITION TODAY TO GET READY FOR IT? DID YOU LOOK AT THE HOSPITAL MONITORING POLICIES? DO YOU HAVE A MEMORY OF THIS OPERATION? TELL AS BEST AS YOU ACTUALLY REMEMBER FROM THAT OPERATION AND WHAT HAPPENED? The courts expect that hospitals have P&Ps to reasonably ensure proper patient care and to take appropriate action against those who do not comply. If you should encounter a case where the patient has a bad outcome, it could be very helpful for you in the future to take a moment and write down the details of the case while they are fresh. DEFENDANT TECHNOLOGIST DO YOU REMEMBER INTERVIEWING THE PATIENT IN PRE-OP? WHAT DID YOU TELL HIM/HER ABOUT? WHAT DO YOU SAY TO HIM/HER? DO YOU REMEMBER ANY QUESTIONS THEY ASKED? WAS THERE ANYTHING UNUSUAL ABOUT THAT INTERVIEWING PROCESS AT ALL? It seems likely that if you knew there was a bad outcome, that you would remember a lot of what happened. If you have done a good job documenting, many of these questions may be answered there. DEFENDANT TECHNOLOGIST HOW OFTEN A WEEK DO YOU DO IOM? WHAT DIFFERENT KINDS OF PROCEDURES DO YOU MONITOR? WHAT IS THE PURPOSE OF EACH OF THOSE DURING DIFFERENT PROCEDURES? WHAT MODALITIES OF MONITORING DO YOU DO? HOW MANY OF THE PROCEDURE THE PLAINTIFF HAD, HAVE YOU MONITORED? If your supervisor does not track this, keeping a personal log of your case types and training is a good idea. Some type of regular QA assessment is important for you and your employer to track competence or need for additional training. Experience speaks to credibility through reliability. DEFENDANT TECHNOLOGIST HAVE YOU BEEN INVOLVED ANY SURGERIES PREVIOUS TO THIS WHERE THERE WAS A PROBLEM WITH LOSING SEPS AND/OR MEPS DURING THE PROCEDURE? DID THE PATIENT RECOVER FUNCTION? CAN YOU GIVE AN ESTIMATE OF HOW MANY DURING THIS SPECIFIC TYPE OF SURGERY? HOW MANY OF THIS TYPE OF PROCEDURE HAVE YOU BEEN INVOLVED IN PRIOR TO THE PLAINTIFFS? DEFENDANT TECHNOLOGIST DID YOU HAVE ANY PRE-OPERATIVE CONVERSATIONS WITH THE SURGEON? ABOUT HOW OFTEN HE WANTED SEPS RUN? HOW DO YOU DETERMINE HOW OFTEN TO RUN AN SEP ON A PATIENT? HOW LONG IS THE LONGEST YOU GO WITHOUT RUNNING ONE? DID YOU HAVE A CONVERSATION WITH THE SURGEON ABOUT HOW OFTEN HE WANTED MEPS RUN? HOW DO YOU DETERMINE HOW OFTEN TO RUN AN MEP ON A PATIENT AND HOW LONG IS THE LONGEST YOU GO WITHOUT RUNNING ONE? DOCTOR DETAILS IT ALL BEGINS WITH THE PHYSICIANS ORDER: WAS IS CORRECT? DOES IT COVER STRUCTURES AT RISK? DID YOU GET IT CHANGED IF NOT? DID YOU DOCUMENT IN THE EVENT LOG ANY CHANGE IN OR DECLINE OF MODALITIES FROM WHAT WAS ON THE WRITTEN ORDER? SURGEON COMMUNICATION DID THE SURGEON UNDERSTAND YOUR BASELINE DESCRIPTION? DOES THE SURGEON UNDERSTAND HOW UNRELIABLE OR INCONSISTENT DATA IS DETERMINED? DOES THE SURGEON UNDERSTAND WARNING TERMINOLOGY? WERE YOU HEARD? WERE YOU UNDERSTOOD? DID YOU RECEIVE A REPLY BACK? DID YOU DOCUMENT THE CONVERSATION PROTOCOL PRACTICED BASELINE BASICS FACT FACTOR PUZZLE PROBLEM SIGNIFICANCE SOLIDIFIED WARNING WORDS TECHNOLOGIST TRANSFERENCE REPORT REVIEW Have a checklist on your computer screen. ASBATE The purpose of prompts PROTOCOL PRACTICE IOM WORKSHEET MAINTAIN ORDER CALCULATE WARNING VALUES QUICK ASSESSMENT OF VITALS TRACK ELECTRODE COUNT DETAIL EQUIPMENT ISSUES NOTE ANY DEVIATIONS IN PROTOCOL COMPREHENSIVE REPORTING REPORT AT CASE RELIEF PROMPTS FOR TIMELINESS PROTOCOL CONSIDERATIONS: EVENT LOG REQUIREMENTS FREQUENCY OF MONITORING WARNING VALUES DEFINITION OF RELIABILITY TROUBLESHOOTING CHECKLIST PROPER HANDOFF COMMUNICATION REPORT GENERATION MANY MORE DEFENDANT TECHNOLOGIST WHAT TIMES DURING A CASE MAY HAVE A GAP IN MONITORING? WHO SUPERVISES OR OVERSEES THE MONITORING? WHO WAS YOUR READING DOCTOR? IS HE/SHE INVOLVED THROUGHOUT THE PROCEDURE? HOW LONG WAS IT BETWEEN THE TIME YOU REALIZED THAT YOU LOST MEPS AND WHEN THE INTERPETING MD WAS RESPONDED OR WAS NOTIFIED/CALLED? DEFENDANT TECHNOLOGIST WHAT THINGS ARE CHECKED WHEN SEP AND/OR MEP SIGNALS DEGRADE OR BECOME ABSENT? HOW LONG DOES IT TAKE YOU TO DO A CHECK? IS THIS MENTIONED IN THE HOSPITAL POLICY? HOW LONG AFTER THAT DOES IT TAKE YOU TO RERUN SEPS/MEPS TO DETERMINE WHETHER OR NOT IT MIGHT BE TECHNICAL OR SURGICALLY INDUCED? CAN YOU DIFFERENTIATE BETWEEN AN INSULT OR THE START OF AN INSULT TO THE CORD AS OPPOSED TO ANESTHESIA, BLOOD LOSS OR BODY TEMPERATURE CHANGE? DEFENDANT TECHNOLOGIST IF THERE IS A DISCUSSION REGARDING DOING A WAKE-UP TEST, IN THE MEANTIME, WHAT DO YOU DO? WHAT WAS THE SURGEONS REACTION WHEN YOU TOLD HIM/HER YOU LOST RESPONSES? WHAT WAS THIS SURGEONS EXPECTATION WITH REGARD TO FREQUENCY OF SEPS AND MEPS? IS THERE A PROTOCOL SURGEONS HAVE WITH REGARD TO HOW OFTEN THEY WANT SEPS/MEPS RUN? DEFENDANT TECHNOLOGIST WHAT WAS DONE IN RESPONSE TO YOUR REPORTING THAT YOU HAD LOST YOUR SEPS AND/OR MEPS? HAVE YOU SEEN YOUR DEPARTMENTAL IOM POLICIES BEFORE? WHAT IS YOUR CRITERIA FOR ALERTING THE SURGEON? HOW LONG CAN YOU CONTINUE TO DO SEPS/MEPS WHEN WAKING UP THE PATIENT? DEFENDANT TECHNOLOGIST DO YOU HAVE ANY OPINION AS TO WHAT HAPPENED TO THE PATIENT, WHAT CAUSED THE LOSS OF THE EP SIGNALS? IS THE REMOTE MD THE AUTHOR OF THE REPORT? DO YOU PREPARE THE REPORT FOR HIS/HER SIGNATURE? DO YOU HAVE A REPORT TEMPLATE? DEFENDANT TECHNOLOGIST WITH REGARD TO THE DATA AND/OR EVENT LOG NOTES, WHICH ONES ARE AUTOMATED AND WHICH ARE MANUAL? WHAT IS THE PURPOSE OF AN IMPEDANCE CHECK? WHAT DATA IS AUTOMATICALLY STORED AND WHAT DATA IS MANUALLY STORED? IS THERE ANYTHING DONE THAT IS NOT STORED INTO THE PERMANENT RECORD? DEFENDANT TECHNOLOGIST WHAT TIME WAS IT ACTUALLY? WAS THE O.R. IS THERE ANY RECORD THAT YOU ARE AWARE OF THAT EXISTS THAT YOU THINK THAT THE TIMES ARE ACCURATE FOR WHAT TOOK PLACE? DID YOU EVER LOOK AT THE ANESTHESIA RECORD? DEFENDANT TECHNOLOGIST DID YOU USE A CELL PHONE, PERSONAL COMPUTER, OR IPAD DURING THE COURSE OF THIS OPERATION? DID YOU READ ANYTHING LIKE A BOOK, OR WERE YOU WATCHING THE MONITORS THAT WHOLE TIME? ARE YOU WATCHING THE SCREEN, OR ARE THERE TIMES WHEN YOU DONT HAVE TO WATCH THE SCREEN? DEFENDANT TECHNOLOGIST DO YOU TAKE BATHROOM BREAKS AFTER THE PROCEDURE HAS STARTED? WAS THERE ANYTHING THAT HAPPENED DURING THE COURSE OF THE OPERATION THAT REQUIRED YOU TO STOP LOOKING AT THE SCREEN FOR ANY PERIOD OF TIME? ARE YOU ABLE TO SEE WHAT THE SURGEON IS ACTUALLY DOING, OR DO YOU RELY ON THEM SAYING WHAT THEY ARE DOING? DEFENDANT TECHNOLOGIST DO YOU HAVE ANY KNOWLEDGE AS TO WHAT CAUSES A PATIENT TO LOSE THEIR MOTOR/SENSORY POTENTIALS COMPLETELY? WHATCAN CAUSE THAT? WHAT DOES BLUNT TRAUMA MEAN? WHAT IS ISCHEMIC DAMAGE TO THE CORD? DO YOU KNOW ANYTHING ELSE THAT CAN CAUSE DAMAGE TO THE SPINAL CORD? DEFENDANT TECHNOLOGIST WAS THERE A NEUROLOGIST OR NEUROPHYSIOLOGIST WHO IN REAL-TIME WAS INTERPRETING THE MEP/SEP WAVES DURING THIS PROCEDURE? WOULD YOU AGREE THAT YOUR CONDUCT AND THE CARE THAT YOU PROVIDED DURING THIS SURGERY COMPLIED WITH THE STANDARD OF CARE OF A REASONABLEY WELL-QUALIFIED TECHNOLOGIST DOING WHAT YOU WERE DOING? RELIABILITY: QUALITY QUALIFICATIONS CNIM is currently the only certification that is a measure of technological competence in IOM From a medico-legal perspective, independently monitoring (meaning without some type of oversight) a case without your CNIM certification may be regarded as providing care that is substandard CREDENTIALS CRUTCH Just because you have credentials does not mean you are necessarily a credible technologist should you develop poor habits of shortcuts or laziness Should you be subpoenaed you may be asked to supply the following TRAINING TYPES AND NUMBER OF CASES PERSONAL PORTFOLIO QA CONTINUING EDUCATION SOCIETY MEMBERSHIPS YEARS EXPERIENCE PROVINCE PRACTICE Standard of Care drives medical-legal litigation and medical legal litigation drives the standard of care Standard of care may be relative to local medical practice and may vary from national standards Going to meetings or belonging to organizations relative to your specialty is one important way to gain insight into how others are practicing. RELIABILITY: PRACTICE PREPAREDNESS Starts with a plan for how to best to run your IOM program (practice) determines the way you document and perform you job every day It is important to consider how the way you practice may be perceived in the event of a bad outcome and subsequent litigation. Repetition Rehearsal Training Drill Preparation RELIABILTY: MEANINGFUL MEASURES How do you measure your own reliability as an IOM Technologist Peer Review/Quality Assessment Tools How do you measure the reliability of your job as an IOM Technologist? Comprehensive and up-to-date P&P Manual Know them Review them annually or earlier Keep current -Updated references ACNS, ASET, and ASNM all have great resources to assist you in developing measures that you can tailor to fit your practice. ENDING COMMENTS for the CREDIBLE TECHNOLOGIST MAINTAIN THOROUGH DOCUMENTATION ALWAYS PERFORM AT MINIMUM IN ACCORDANCE TO PROTOCOL. Should you need to deviate, DOCUMENT WHY (i.e. Left PF not monitored due to leg being in a cast or PF not monitored due to system limitations/channel availability) PERFORM EVERY CASE LIKE YOU WERE GOING FOR YOUR BOARDS OR TO BE REVIEWED BY A JURY REMAIN VIGILANT IN SAFE AND RELIABLE HEALTH CARE DELIVERY MAINTAIN ROUTINE QUALITY ASSESSMENT REMAIN CURRENT WITH IOM TRENDS