Preventing and Managing Surgical Fires
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Summer 2006
As the Closed Claim Study in this issue illustrates, there is much ophthalmologists, anesthesiologists, nurses, and surgical facilities can do to avert these rare but devastating occurrences. Accordingly, many professional organizations have issued guidance, most of it based upon the research of ECRI’s Accident and Forensic Investigation Services. Moreover, accrediting organizations have made minimizing OR fires a compliance issue for many ophthalmologists who own or operate accredited office-based surgery suites or ambulatory surgery centers. The Joint Commission on Accreditation of Healthcare Organizations included surgical fire prevention in its 2005 and 2006 National Patient Safety Goals, and the Centers for Medicare and Medicaid regards this risk management effort as a condition of participation. This Hotline article will present actions ophthalmologists can take to protect themselves, their patients, and the entire surgical staff.
Q What causes surgical fires?
A Three elements are needed: oxygen, fuel, and a spark, and all are present wherever surgery is performed.Oxygen is abundant in the operative setting; heavier than air, it pools under drapes. The list of fuels is extensive, and includes prep solutions, ointments, cotton balls, drapes, sponges, endotracheal tubes, masks and tubing, and the patient’s hair, especially the fine hair on the face. The spark is provided by electrosurgical units, electrocautery units, and lasers.
Q What precautions need to be taken before the surgery begins? As the surgeon, am I responsible for these?
A The entire surgical team must cooperate to prevent fires, and as the surgeon, you can take a leadership role. If flammable preps such as alcohol are used, allow them to fully evaporate and dry before draping the patient, and check for pooling or wicking.[1] Arrange the drapes to fullyexpose the face; this helps minimize oxygen and nitrous oxide buildup underneath. Place suction under the drapes to scavenge oxygen and further reduce the concentration of pooled oxygen. Use a properly applied incise drape, if possible, to help isolate head and neck incisions from oxygen-enriched atmospheres and from flammable vapors under drapes. As a general policy, use air or ≤ 30% oxygen for open delivery during procedures. Coat facial hair near the surgical site with water soluble surgical lubricating jelly to make it nonflammable. Moisten sponges, gauze, and pledgets (and their strings) to make them resistant to ignition; keep a water sponge on the Mayo stand for this purpose.
Q Are there steps I should take when using electrosurgery, electrocautery, or laser surgery?
A Yes. Communicate with anesthesia personnel about the need for oxygen and inform them of planned use of equipment that could cause sparks, such as cautery units and laser. Ask the anesthesia provider to stop using supplemental oxygen (if > 30%) at least one minute prior to and during the use of the unit if possible. Use clear methods to communicate the use of oxygen, i.e., “Oxygen on!” and “Oxygen off!” Activate the unit only when the active tip is in view, and deactivate the unit before the tip leaves the surgical site. Place electrosurgical electrodes in a holster or another location off the patient when not in active use. Place lasers in standby when not in active use. Do not place rubber catheter sleeves over electrosurgical electrodes; instead, use manufactured insulated electrodes. Keep the endoscope light away from drapes to prevent heat from igniting the drapes.
Q What should I do if I notice a surgical fire?
A First, the fire needs to be extinguished. If it is small, pat out or smother it, or remove the burning material from the patient.[2] For large fires on the patient, stop the flow of breathing gases to the patient, and remove the burning material from the patient. At times, a fire extinguisher may be needed. Next, care for the patient by resuming ventilation, controlling bleeding, evacuating from the room if there is ongoing danger from smoke or fire, examining the patient for injuries, and treating as needed. If the fire cannot quickly be controlled, notify other operating room staff and the fire department. Save all involved materials and devices for later investigation. Contact the risk manager of the facility, as well as OMIC’s Risk Management Department, for assistance in discussing the fire with the patient and in determining reporting obligations.
1. Recommendations are from “Only You Can Prevent Surgical Fires: Surgical Team Communication is Essential.” ECRI. This free poster is available at ecri.org.
To order in color or to obtain more information about surgical fires, contact ECRI at 1-(610) 825-6000.
2. Recommendations are from “Surgical Fires,” Operating Room Risk Management, ECRI, 2004.
Access to an EHR System While On-Call
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Winter 2012
A policyholder called today to get input on a difference of opinion in his group. The group has implemented an EHR system. One of the partners, who is an early and enthusiastic adaptor of technology, feels that ophthalmologists must access the EHR when handling after-hour calls for the group. Another physician, less technologically-inclined, is reluctant to carry a computer at all times and take on additional work if it is not necessary.
Q Am I legally required to access the EHR when speaking to a patient after-hours? Does OMIC require this?
A No. OMIC is not aware of any laws or regulations that make such access mandatory, and we have no underwriting requirements related to electronic records.
Q Do all members of the call group have to agree on whether or not to access the records?
A Patient safety studies have shown the value of a standardized approach in reducing the incidence of errors and improving communication. As in other areas of practice administration, such as appointment scheduling, prescription refills, noncompliance and billing, it is easier for staff if all physicians in a group handle issues in a similar fashion. Once the group reaches consensus, it would be helpful to develop a written protocol and train staff members in it. Policies need to be realistic and reflect goals that can be consistently reached. Such written protocols protect physicians from inadvertent criticism from their colleagues and staff if there are unexpected patient outcomes.
Q What are the risks if I don’t access records?
A During telephone conversations, the health care team does not have access to the wealth of information obtained from face-to-face communication and a physical examination of the patient. Moreover, the patient may be a poor historian who does not know how to communicate what the problem is, or may not want to inconvenience the physician or appear to be whining or complaining. This situation is even more problematic after-hours, when the patient may be unknown to the ophthalmologist and medical records may not be available at the time of the telephone encounter. Making medical decisions on the basis of the limited information obtained over the telephone is, therefore, a risky—albeit necessary—aspect of ophthalmic practice. Indeed, OMIC claims experience confirms that inadequate telephone screening, improper decision-making, and lack of documentation all play a significant role in ophthalmic malpractice claims. Negligent telephone screening and treatment of postoperative patients is especially likely to result in malpractice claims. By reviewing the record, you may find information key to the diagnosis or management of the patient, such as a patient’s allergy, test results, medication record, or history of recent surgeries. Without such information, you may inadvertently prescribe a contraindicated medication, or determine that urgent care is not needed. If the patient is harmed and sues, he or she may allege that failure to consult the record was negligent. As more and more physicians implement EHR systems, pressure may grow to access records after-hours, even though this care is generally not reimbursed by insurance companies.
Q What else can I do to reduce the risk of telephone care?
A First and foremost, exercise the same care when treating a patient by phone as you would during an office visit. To promote both continuity and defensibility of care: (1) gather the information necessary to assess the situation and determine the treatment plan, (2) communicate the assessment and plan to the patient, and (3) document the encounter and your decision-making process in the medical record as soon as possible after the conversation, by the next business day at least.
Q Can’t I just get the information from the patient?
A You may be able to if you ask enough questions and have a patient who can reliably answer them. At other times, you may have to make a decision with limited or inaccurate information. In the absence of records, OMIC recommends using an after-hours contact log that prompts you to ask detailed questions about the current complaint and prior care. The form also serves to document the conversation and can be faxed to the patient’s regular physician to promote continuity of care.
Q If I do access the record, how thoroughly do I need to review it?
A There is no easy answer. You face a similar situation when you take over care from another physician, or see a partner’s patients in the office. The standard to which you will be held is that of a reasonably prudent physician. Obviously, you will not have time to review the entire record. At a minimum, you would want to check allergies, medication history, and recent procedures. Reading notes from the latest visits or phone calls might help you determine if the patient’s condition is changing or worsening. Document which records you reviewed in order to assess the patient. To facilitate after-hours call, it would help if the record contained a front sheet with key information.
Advance Directives and Surrogate Decision Makers
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Fall 2010
A policyholder called for advice about a mentally handicapped patient who resided in a state-run home. As the patient had never had decision-making capacity, power of attorney (POA) for medical decisions had been granted to a relative. The relative was now 90 years old, lived in another state, and was no longer able to travel. Meanwhile, the patient had developed visually significant cataracts that, given his disability, were having a profound impact on his ability to take care of himself and participate in activities of daily living.
Q A state representative accompanied the patient and said the state is applying for guardianship. What is involved? Do I have to wait until this process is complete?
A This patient has been determined by a judge to be incompetent to make medical decisions. While it is likely that a judge will approve the state’s application to assume POA duties, the state does not currently have the authority to make medical decisions on the patient’s behalf. However, this patient would benefit from prompt surgery, so waiting is not advisable either. Arrange a conference call with the patient, the relative with the authority to make medical decisions, the state’s representative, and someone from the ambulatory surgery center where the procedure will be performed. If the relative and state’s representative agree that the surgery is appropriate, and the ASC is comfortable with the consent process, obtain the signature of the relative and proof of POA status, document the conference call, and proceed with surgery.
Q I’m on call and have a patient who is unconscious but needs repair of a ruptured open globe. May I proceed without consent?
A Possibly. Quickly check to see if the patient has an advance directive in his or her belongings or in the medical record. Advance directives address the kinds of decisions a patient would like someone to make if he or she is unable to participate in a consent discussion. If there is no available advance directive or person with POA, and you feel the patient requires emergent treatment, ask the ER physician and/or OR nurse to determine the facility’s process for emergency exceptions to informed consent. Some hospitals require a second physician to agree that the care needs to be provided without delay. Both you and the second physician should document the need for emergent treatment and attempts to reach the patient’s family. Direct a hospital staff member to continue attempts to contact a family member or friend, as consent for additional non-emergent treatment will need to be obtained from a surrogate.
Q How should I proceed if there is time to try to find a surrogate decision maker?
A The ideal surrogate is one who understands the patient’s health care values and goals and will respect them during the decision-making process. Each state has a system for determining who may act as the surrogate decision maker and ranks them in decreasing order of authority. The top two are usually the individual who has been granted POA in an advance directive or a legal guardian with POA for medical decisions. Next come spouses, adult children, parents, and adult siblings. Adult children and siblings who do not have POA are able to act as surrogates only if they are in agreement. Many hospitals ask members of an Ethics Committee for guidance when these family members have different opinions on whether to proceed with treatment.
Q Our ASC suspends “do not resuscitate” and advance directives during surgery. My patient is quite upset and insists that her wishes be honored. How should we proceed?
A Your patient brings up a difficult issue that most ASCs and ORs have not addressed, even though all ask patients if they have advance directives. While you could simply try to find an ASC that will honor the patient’s wishes, it would be worthwhile to discuss this problem with the facility’s leadership team. The American Society of Anesthesiologists (ASA) has stated that “automatic suspension of DNR orders… may not address a patient’s right to self-determination in a responsible and ethical manner.”1 Instead, the ASA suggests asking an anesthesiologist to review possible options with the patient. First, the patient may choose full resuscitation, thereby suspending DNR orders and other directives during anesthesia and the immediate postoperative period. Second, the patient could choose a limited attempt at resuscitation defined with regard to specific procedures. The anesthesiologist and surgeon would inform the patient of procedures that are essential to the success of the planned anesthesia and procedure. The patient consents to these but refuses any procedures that are not essential. Finally, the patient may opt for a limited resuscitation defined with regard to the patient’s goals and values. The patient and family, after a discussion with anesthesia, agree to allow the anesthesiologist to use professional judgment. Full resuscitation procedures will be used to manage adverse clinical events that are quickly and easily reversible. The patient will not be treated for conditions that are likely to result in permanent neurological impairment or unwanted dependence on life-sustaining technology.
Practical Application of HIPAA Privacy Rules (Part 2)
Kimberly Wittchow, JD, OMIC Staff Attorney
Digest, Spring 2003
The compliance deadline of April 14, 2003 is behind us, yet many OMIC insureds continue to grapple with certain provisions of the HIPAA Privacy Rules. For this reason, the Risk Management Hotline will again tackle a sampling of the latest HIPAA queries. Remember that if you are not a Covered Entity as defined under HIPAA, these federal mandates do not directly apply to you.
Q Can I release information to persons within a patient’s circle of care without a written authorization?
A Yes. You must, however, provide the patient with an opportunity to agree or object to this disclosure. If the patient is present, the easiest way to do this is to get the patient’s oral permission before sharing protected health information (PHI). If the patient is not present or communication with the patient is impossible, you may in the exercise of professional judgment determine whether the disclosure is in the best interest of the individual and if so, disclose only the information directly relevant to the person’s involvement with the patient’s care. It is advisable to document these oral agreements or professional judgments to disclose.
Q Can patients request restrictions on the use or disclosure of their protected health information?
A Yes. Patients have the right to ask for restrictions in the use or disclosure of their PHI, but you are under no obligation to agree. However, if you do agree with the restrictions, you must comply with them. You also must accommodate patients’ reasonable requests to receive communications of PHI by alternative means, such as sending all communications in a closed envelope rather than on a post card.
Q Is the Notice of Privacy Practices the only policy document my practice needs?
A No. The Rules additionally require that you have written privacy procedures addressing which staff has access to PHI, how PHI will be used, and when PHI may be disclosed. OMIC’s Sample Compliance Plan* is both a template and a guide for creating your own privacy plan. In addition, you must designate a Privacy Officer, train your employees, and take appropriate disciplinary action if you learn of a breach.
Q Are fellow health care providers my Business Associates?
A A Business Associate Agreement is not required when you disclose PHI to another health care provider for treatment of a patient. However, you and another health care provider may be business associates for some other purpose. For example, a hospital might hire you to help train medical students, in which case the hospital would have to obtain an Agreement from you before allowing you access to patient information.
Q Will the government actually enforce the HIPAA Privacy Rules?
A In an April 14, 2003 press release, HHS stated that enforcement will be primarily complaint driven. The Office of Civil Rights (OCR) intends to investigate complaints and ensure that the privacy rights of consumers are protected. OCR may impose civil monetary penalties of $100 per failure to comply. The Department of Justice may prosecute criminal violations with fines ranging from $50,000 to $250,000 and prison terms ranging from one to ten years.
Q Does HIPAA address eye banks?
A Yes. The Privacy Rules permit you to disclose PHI without authorization to eye banks for the purpose of facilitating cadaveric eye donation and transplantation. Furthermore, the procurement or banking of eyes is not considered health care under the Rules and the organizations that perform such activities are not considered health care providers or Covered Entities when conducting these functions.
Q Who are patients’ personal representatives and what information can I share with them?
A HIPAA requires that you treat an individual’s personal representative as the individual with respect to privacy rights. The scope of the personal representative’s authority to act for the individual derives from applicable (generally state) law. Parents have broad authority to act on behalf of their children and legal guardians generally have broad authority to act on behalf of mentally incompetent adults. Conversely, someone with a limited health care power of attorney is that individual’s personal representative only with respect to certain health care decisions.
Refunds, Fee Waivers and Payments
Anne M. Menke, RN, PhD, OMIC Risk Manager
Digest, Spring 2007
Patients who are not satisfied with their care outcome may refuse to pay their bill, request a refund, or ask for money for subsequent care. OMIC policyholders have many questions about the consequences of saying yes to these requests. Similarly, there are times when a physician would like to offer monetary support. This column gives a general overview of providing financial support to patients out of a physician’s corporate or personal funds. Prior to taking any action in this regard, please call OMIC’s Risk Management Hotline at (800) 562-6642, option 4, for individual assistance. Physicians who have received a written request for money or are notified of a lawsuit should call the Claims Department at ext. 629.
Q When I’m not able to help my patient understand and accept an outcome, I would like to have the option of refunding or waiving my own fees, or paying for a second opinion or care from another ophthalmologist. If I do any of these, am I admitting liability?
A Merely refunding or waiving fees or offering to pay for subsequent care is not an admission of liability unless you tell the patient that your care caused the outcome. If you feel you are responsible and would like to discuss this with the patient, please consult with OMIC first, both to comply with the cooperation clause of your policy and so that we can assist you in preparing for the discussion. Those providing support for other reasons are also encouraged to call us. After a thorough discussion of surrounding facts and circumstances, we may suggest using neutral language to explain the offer; for example, “I want all of my patients to be happy with their experience here. Since I haven’t met your expectations, I would like to offer to waive/reduce/refund fees, pay for a second opinion, etc.”
Q Will offering monetary support dissuade my patient from suing me?
A Not necessarily. Some patients accept such offers with gratitude, and continue to seek care from you. Others may conclude—regardless of what you say or do—that your generosity is “proof” that you did something wrong and proceed to consult with a medical malpractice attorney. You know your patients and are in the best position to decide how they might respond, and whether you would like to make such an offer.
Q Can I waive the patient’s co-payment or deductible?
A Contracts with third-party payers (including Medicare) usually require that you collect co-pays and deductibles at the time of service, and they may limit your ability to waive or refund fees. Some plans allow a physician to waive a co-pay or deductible only after a patient has demonstrated financial need and to refund such payments only if the physician also refunds any fees paid by the third-party payer. It is important to review contracts and follow their provisions since you may be subject to allegations of insurance fraud or abuse if you violate them.
Q What types of monetary support do I have to report?
A Some reporting requirements differentiate monetary support given on the physician’s own initiative or in response to an oral demand from money paid in response to a written request, claim, or lawsuit. Reporting to the National Practitioner Data Bank, for example, is only required if (1) there is “a written complaint or claim based on a physician’s … provision of or failure to provide health care services” and (2) the payment is made by a business or corporate entity, including a business entity comprised of a solo practitioner (45 C.F.R. § 60.3). Payments in response to oral requests, fee waivers (when no money has changed hands), or those paid for out of personal funds are not reportable. State laws vary, so it is important to check what is required by speaking with OMIC and contacting your state medical board.
Q Should I ask the patient to sign an indemnity release in exchange for a fee waiver, refund, or payment?
A The answer will depend upon the particular patient and situation. Some patients readily agree, while others may become angry or feel you wouldn’t ask if you hadn’t been negligent. You should contact OMIC’s Claims Department if you want the patient to sign a release, as these must comply with state law and require the assistance of an attorney. For additional information, please download the document “Responding to unanticipated Outcomes” from the Risk Management Recommendations section of our web site, order the CD of the same name, or take this course online.
