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LNCtips.com: Cell Phones in Medical Malpractice: 2 Case Examples


What did we do before cell phones? If you're like many of us, you probably got your first cell phone for personal safety reasons, to check on your kids, or because everyone else had one. Over time, your cell phone became indispensable for taking photos, surfing the web, checking social media sites, texting, and checking emails in addition to talking on the phone. Cell phones have become so essential that we take them everywhere. Unfortunately, when staff members in healthcare organizations use their personal cell phones at work, there can be implications in medical malpractice suits. Here are two case examples.

1) An elderly patient with a fever of 104.6F went to the ER with her husband and a neighbor. After triage, the patient was in a room but the physician didn't see her right away. After several hours, the neighbor went to the nursing station where there were six staff members using their cell phones. One staff member told the neighbor, "We're talking to doctors about patients," but the neighbor told the patient and her husband that the staff members were checking Facebook on their phones. Several hours after that, the patient's husband went to the nursing station where he saw a nurse reading a book on an electronic tablet. A physician admitted the patient 14 hours after she arrived. The patient waited another four hours for a nurse to administer the antibiotic ordered by the physician. The patient later died of complications from sepsis. The husband sued for medical malpractice, incensed that the staff had ignored his wife. During a deposition, the neighbor testified about her conversation with the ER nurses. Based on this testimony, the husband's attorney requested that the hospital produce the cell phone records of all staff involved. The records revealed that none of the staff's cell phone usage was work-related at all. This finding bolstered the plaintiff's argument that physicians and staff hadn't timely diagnosed or treated the plaintiff.

The wife of a deceased patient sued a hospital and a neurology group for failure to treat her husband in a timely manner. The husband had suffered a stroke and died six hours after admission to the hospital. During the course of the lawsuit, two hospital nurses testified that they had repeatedly called the group's answering service to report condition changes and to request orders. The neurology group denied that it had received more than one call from the hospital. The group produced transcripts of texts sent to the cell phone of the on-call physician by the answering service. The transcripts revealed that the only text received by the on-call neurologist was one informing him that the patient had expired. Suspecting that the cell phone had been wiped, the plaintiff's attorney hired a forensic examiner to analyze the neurologist's cell phone. Apparently, it's very hard to delete information from cell phones completely, but the forensic examiner found no tampering or deleted messages. This confirmed that the physician had received only one text about the patient. Because of the cell phone transcript, the plaintiff dropped the case against the neurology group, but continued to pursue the case against the hospital, which quickly settled with the plaintiff.

What are the implications for legal nurse consultants regarding cell phones in medical malpractice cases? LNCs need to understand that doctors' and staff members' personal cell phone records are discoverable if used at work or for work-related business. In addition to identifying phone numbers called, LNCs need to identify the time of the calls and the length of the calls during the time of the alleged staff negligence. LNCs also need to obtain transcripts of all text messages sent and received during that time.

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...Katy Jones