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Mobility & The Law: The Case Against Worker Distractions
Enterprise IT and communications managers are no strangers to the general concept of the mobility policy, but they may not be as familiar with the idea of a mobility policy that's industry specific. And by specific, I'm talking here primarily about the mobile device belonging to a physician, nurse, or other medical professional in use in an examining room/surgical suite during a patient's treatment. In a word, "Yikes."
In mid July, The Washington Post ran an opinion piece entitled, "Do Cell Phones Belong in the Operating Room?" Two things fascinate me about the article. The first is the topic, which I'll present in a slightly different context here. The second is that not only did the Post run an article that one of its reporters or editors didn't write, but also that it did so given that the piece was prepared, as news, by the Kaiser Family Foundation. In any case, the article raises some important issues that, while of primary concern to the surgical community, are equally important in the exercise of other professions in which individuals performing specific tasks (like surgery, for example) have the potential to be distracted to the (ultimate) detriment of their patients/clients/customers.
Mobility policies aimed at minimizing distraction came into existence primarily as the result of several negligence cases brought against employers when employees, allegedly distracted by their mobile devices while driving and working, caused harm, and sometimes death, to third parties. The list of cases and fact patterns is long and diverse, but the fact is that the phrase "distracted driving" has been successfully labeled as conduct to be avoided at all cost.
Employers (read: enterprise consumers), along with their insurers, have ended up paying the lion's share of multimillion dollar judgments and settlements when an innocent person has been killed or injured as a result of a distracted driver's attempt to operate heavy machinery while simultaneously conducting business on a mobile device. For a review of why this practice is a bad idea (on the off chance that you don't know it already), see the Science News piece, "Impactful Distraction." For what it's worth, reading this article changed my behavior (see my earlier No Jitter post, "It's Time to Hang Up When Driving").
We've all read and heard much about mobility policies and what goes into them. Is the purpose of the policy to protect the employer, safeguard company-confidential information, ensure privacy, encourage employee safety, or achieve some combination of all of these critical elements? Once the enterprise makes the decision about which of these elements to include, it must then work carefully with its attorneys and risk management experts to craft a policy that best fits its needs. Despite being asked for boilerplate policy language, I always tell clients, potential clients, and anyone who will listen that the balance in each case really is different. Perhaps none, though, is more obvious and important than the problem of mobile devices in the operating room.
Complications in the OR
As far back as 2012, the organization originally known as the Emergency Care Research Institute and now known simply by its initials ECRI claimed that mobile devices in the operating room were one of the Top 10 health technology issues of 2013. The presence of such devices isn't in and of itself a bad thing -- and, in fact, may provide access to critical time-sensitive information when it's most needed. However, the presence of such devices becomes an issue when causing unnecessary and undesirable distractions. The challenge involves weighing the value that such devices bring to the "it" room vs. the opportunity for distraction they provide.
For an insider's perspective, I spoke with Judy Smith, MD, MS, CPE, and chief of the cancer center and program at Spectrum Health in Grand Rapids, Mich. "The critical need to eliminate distractions has been an important focus in health care for several years. Whether in the operating room or in a patient consultation, distractions of any type (electronic, human interruptions, or other) are not beneficial for the physician-patient relationship," she told me. "Optimal solutions have not yet been identified but many clinical sites ask providers to leave mobile devices outside the operating arenas. Access to information is provided by 'in room' computing that is accessed as needed rather than 'by demand.'"
The takeaway is that the largest part of this responsibility is cultural to the institution. That is, if the medical facility is managing its risks in this area, it has created a culture that discourages the opportunity for unnecessary distractions, whatever the cause.
Enforcement for All
However, on the legal front, if professionals are being asked to sign and comply with mobility policies, then it's imperative that those policies be sufficiently tailored to reflect the work environment. The first step is drafting an employee mobility policy that serves as an absolute discouragement of distracted behavior. The second step is to make sure that the policy is suitably refined to reflect the industry itself. The third step is making sure that the employer recognizes that, without consistent and uniform enforcement to all, the policy isn't worth the paper on which it's printed.
As well-known labor lawyer Gene Connors of Reed Smith in Pittsburgh has commented, "A policy is only as enforceable as the employer's job-related application of it to everyone, from the chief administrator to doctor to the mailroom clerk." Connors also has said, "In terms of a mobility policy, to the extent smart devices are necessary to satisfy critical workplace needs, the policy must clearly permit smartphone use to satisfy only that need, but in a way to avoid distractions and consequent risks of injury or death. As an example, in an operating theater, is there a critical need for last-minute emergency communications? If so, designate one person -- not 'the' or 'a' surgeon -- to have a mobile device, on vibrate mode, to receive and convey any such alert. No one else."
As a final note, failure of a health care facility to take a firm stance "against" mobile device use that creates distractions in the operating room or elsewhere in caring for patients could have dire consequences, for the patient, the distracted professional, and employing medical facility. No matter how talented or caring a distracted professional is, an unsafe professional and his or her employer almost always will be held accountable for "what happens next." It's imperative that the employer announce and convey the critical importance of a firm stand against non-critical use of mobile devices with the simple truth that eliminating workplace distractions helps ensure against unsafe action and inaction and that every patient deserves 100% of the professional's attention and effort.
Ultimately, the issue of access to technology in the OR requires a fine balance. While these devices can be used to provide virtually instant access to critical information, they also can be used to monitor the latest sale at Neiman Marcus or sports scores or political news or anything else that's unrelated to the procedure underway. As patients, we'll never know. Here ignorance is definitely not bliss.