The use of telemedicine in the intensive care setting is a relatively new phenomenon and rare in our state. However, as our population ages, the burdens on our ICUs will go up, and if there is not a corresponding increase in critical care and intensivist physicians to meet this need, we may be seeing more such systems in place. This article attempts to: 1) explain the eICU or tele-ICU practice of medicine; 2) explain how it’s being used in Washington; and 3) describe potential potholes and challenges – and at least one benefit – that can arise from tele-ICUs in litigation.
Tele-ICUs
A number of terms can be used to describe such a system, including eICU, tele-ICU, and more generally, telemedicine and telehealth. The system discussed in this article can be defined as the application of telemedicine to hospital critical care units, including any system installed in an ICU to facilitate real-time access to critical care specialists physically located somewhere else. It’s a way intensivists and critical care doctors, as well as critical care nurses and other health care providers, can get help for their ICU patients when in-house specialists are not available.
The first described use of such a system (albeit an intermittent one) was over 25 years ago. The first continuous telemedicine ICU program was implemented only 12 years ago. As such, there is scant research on the effectiveness of such systems on patient care and safety, let alone cases describing how juries in the medical malpractice context treat such systems.
Proponents of the system cite patient safety as an overall benefit of these systems, which are purported not to replace on site critical care staff, but to act as an “added layer of security.” This redundancy is thought to improve safety. Early studies cited by such proponents indicate that the use of tele-ICU systems reduces ICU mortality and the length of stay in ICUs. However, it is not clear exactly what causes these outcomes.
Other benefits from hospitals instituting such systems include the enhanced reputation a hospital enjoys as a result of being innovative, and the ability, (particularly in rural areas), of big hospitals building relationships with smaller communities. This supports the potential development of “regional delivery systems” (i.e. a referral source to the bigger hospital).
You often find tele-ICU systems in settings where rural hospitals cannot support an onsite intensivist. They are also found in bigger hospitals in urban settings with the largest and sickest populations of ICUs. Census coverage at tele-ICUs in urban areas can be as little as 65-75 beds at Swedish Medical Center to over 200 beds in other hospitals.
The ability to provide medical care remotely is done with increasingly sophisticated technology. Inside patients’ rooms, high resolution zoom cameras are mounted high on the wall or on the ceiling, allowing tele-ICU doctors to “camera in” to rooms and control what the camera sees. Such systems also include high definition televisions mounted in the patient’s room, so patients, patient’s family members and staff can videoconference with the offsite doctor.
In the control room where the doctor is, a bank of screens monitor patients’ vital statistics, show views of the room, and access electronic medical records. Lab results, radiographic images, and telemetry information such as oxygen saturations, blood pressure readings, and other real time information is available.
Although the technology is impressive, it is the same stuff that we see in our everyday practices. That being said, the software that runs the system is different. The system continuously analyzes patients’ physiological data and is set up to provide doctors with earlier detection of potential complications. This “‘early warning’ computer software can detect changes at the earliest indication.” (per the Swedish website).
Another benefit of this software is its ability for “e-triage,” whereby the system electronically sorts ICU patients according to characteristics such as acuity, diagnosis and treatment, allowing the staff to appropriately apply resources and identify any gaps in care.
Typically such control rooms are staffed with an intensitivist, one or more ICU nurses, and other staff, including a secretary or monitor tech. Average coverage numbers indicate one staffed nurse for every 30-35 ICU beds, and 1 intensivist for 100-130 beds.
Tele-ICUs in Washington
As mentioned above, as of 2010 the only tele-ICU system operational in Washington is at Swedish Medical Center, which implemented its system in 2004. Swedish’s website states that its “TeleICU command center team, which includes an intensivist, registered nurses and secretaries, monitors patients in multiple hospitals” using cameras and audio feeds, as well as streaming telemetry information.
There is little law on teleICUs. This author could find no reported case law in Washington on teleICUs in the medical malpractice arena. There are no statutes on point, and telemedicine is cited in the Washington Administrative Code only as it relates to providing and billing for home health services and physical therapy. There is scarce case law nationally.
The Swedish Tele-ICU system is similar to those described above. Doctors who staff the tele-ICU work in a group that rotate shifts of four nights in a row. The weekend shifts are staffed by moonlighters, often senior fellows from the University of Washington. During the day (7 am to 7 pm) the tele-ICU is staffed only by nurses, since intensivists are on site at Swedish ICU floors. At night, an intensivist, a unit secretary, a monitor tech, and either one or two ICU nurses staff the unit.
In the room the intensivist has access to multiple phone lines to speak with hands-on providers, and a bank of six screens on which the intensivist can call up medical records and camera in on patients in rooms.
Potential Pitfalls and Unique Challenges to Litigating Tele-ICU Cases
Medical malpractice cases involving tele-ICUs have the potential to present unique challenges. First and foremost, having an off-site physician caring and giving orders can lead to communication errors since the remote specialist must rely on the onsite staff to act as the eyes and ears. When an issue arises about what information was conveyed from the onsite nurse to the tele-ICU doctor, without a perfect record no one will know what was said. Issues involving the time information is entered into the computerized records’ system, and at what point that information was accessible or was accessed by the tele-ICU physician can also be a challenge.
Agency is certainly another issue that might arise. Often the tele-ICU intensivists are independent contactors or otherwise not employees of the hospitals for which they are providing services. It’s important to know whether the doctor you are pointing the finger at is actually employed by the hospital. This situation is akin to allegations against an ER physician, who is employed by a group and independently contracts with the hospital to provider ER services.
Under Adamski, it may be in your client’s best interest to move for partial summary judgment on the agency issue so that you might present the named defendant (if it’s just the hospital where the patient was) as a “team” of providers that failed your client. The discovery process, including Requests for Admission as to the Adamski factors, can be useful in pinning this issue down before trial. Then, regardless of whether the jury believes the tele-ICU physician fell below the standard of care or not, he/she would be part of the “team,” and your client would recover the full amount of damages instead of having an empty chair.
Another issue that isn’t currently present in Washington but could be in the near future, is when the patient is in Washington and the physician is in another state (or another country). Then issues of jurisdiction and choice of law, among others, might be in play. Waivers might be signed agreeing to jurisdiction in states with caps on damages, or different statutes of limitations or standards of care less favorable to a patient than in Washington. Alternatively, punitive damages may be available.
The records (or lack thereof) from such systems can also be an issue. First, it may not be apparent from the hospital records whether a tele-ICU physician or nurse was involved in the care of your client. Patients themselves are often unaware that a tele-ICU system is in place providing them with remote care. Additionally, as stated in part above, there may be no records whatsoever from the tele-ICU, leaving scant information to try and piece together the timeline of events and issues involving communication between the tele-ICU and the onsite providers. Privacy concerns can also arise in situations where information is being accessed outside of the hospital.
Finally, because of the reliance on technology, equipment or power failure can contribute to adverse patient outcomes, and could give rise to a product liability claim.
One potential benefit of a case involving tele-ICU medicine, particularly when the tele-ICU physician’s care is at issue, is that potential jurors likely have a bias against such care. Focus groups have confirmed this baseline opinion that off-site doctors are disfavored. And if, in the future, ICUs in Washington are staffed by doctors a half a world away (could happen), the gut reaction most people have to such a system could potentially tilt the case in favor of the injured party.
Conclusion
Tele-ICU systems like Swedish’s appear here to stay. With an increased demand for ICU services as our population ages, and less intensivists and critical care doctors to care for these patients, other hospitals may take on the significant upfront cost to implement these systems, leveraging fewer doctors over a greater population. What this means for plaintiffs in the medical malpractice context is unclear, but such issues as described here should be considered, particularly in claims involving Swedish providers.
Tyler Goldberg-Hoss is a WSAJ EAGLE member, Vice-Chair of the Medical Negligence Section and Vice-Chair of the New Member Committee. He is an associate in the Seattle firm of Chemnick Moen Greenstreet, which limits its practice to medical negligence claims.
This article originally appeared in the September 2012 Trial News, found here:
https://www.washingtonjustice.org/index.cfm?pg=trialNewsDB&tnType=view&indexID=10215
Publication Date: September 2012
Volume: 48-1
Author: Tyler Goldberg-Hoss
Categories: Medical Negligence, Computers, Hospital Negligence, Practice tips
