Introduction

Telephone Triage nurses have always been concerned about the legal issues inherent in telepractice. That concern has not changed in the last 15 years. If anything, interest in risk management has heightened in recent years, as new trends appear that augment the risk. In several areas however, significant progress has been made to contain the risk. The most notable developments include telephone triage standards and new policy statements related to telephone triage.

Please note:  The material in this CE article is copyrighted by Sheila Wheeler.  It may not be used for resale, or for any other purpose than strictly educational or research purposes.

Telehealth is a subspecialty that still eludes containment and definition, even after 30 years. Closely aligned with the fast-growing high tech industry, telehealth is still developing and still controversial. It has also become an area of risk. Since the mid-1990s, there has been an upsurge in lawsuits involving telephone triage. Many of these lawsuits originate from HMO settings in large call centers that experience high call volumes, as well as doctor's offices where call volume may be low, but qualified staff, training, protocols and standards are inadequate. Dernovsek and Espenson (2003) give possible explanations for the rise in litigation: the emerging nature of the field, gradually evolving legal standards, lack of knowledge among employers about new standards - in short, the birth of telehealth.

This course explores the management of risk in the emergent field of telehealth. It is divided into two sections.  Part One provides an updated overview of key issues, trends, policies and controversies related to the legal aspects of telehealth It also highlights areas of risk that may not yet be apparent. It is based on recent research, case studies and the author's experiences as an expert witness and telehealth consultant. Part Two features interviews with two nationally known legal experts who further describe their perspectives on key issues affecting risk in telephone triage.

The case studies used to illustrate legal principles are based on actual events. However, identifying information for the parties involved has usually been omitted.

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Box A. Falling through the Safety Net:  When Telephone Triage Fails

The calls listed below are based on real events. Would you have identified these callers and symptoms as high-risk?

• Parents call multiple times about a newborn with large cephalohematoma who is feeding poorly and sleeping a lot. There are numerous calls regarding increasing jaundice over several days. Outcome: Severe neonatal bilirubinemia.
• A 16-year-old male calls with a history of sinus infection x 5 days. He complains of a "migraine-like" headache, increasing weakness, fever, vomiting, swelling of face and eye. There are multiple phone calls. Outcome: Cerebritis, brain herniation, multiple strokes, permanent brain damage.
• A 35-year-old female calls. She is 5 days post partum and has a history of migraines. She complains of a severe headache, neck pain and  photophobia. She calls several times over one week. She experiences a seizure, then becomes unconscious. Outcome: Cerebral hemorrhage due to hypertensive state. The patient expired.
• A 47-year-old female calls complaining of severe back pain. She has a history of diabetes, hypertension, depression, and chronic back pain. She is a smoker. She calls several times regarding the worsening back pain. Outcome: Septic shock due to spinal abscess. The patient expired.

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New Trends in Telehealth: How They Affect Risk

The emergence of new trends is having a profound influence on telehealth. Some of these trends accentuate risk, while others diminish it. As can be expected in any new field, some new trends are just beginning to appear, stirring up controversy and new risks as they emerge. This section discusses these key issues and the unique risks they present in telepractice.

Trends that Accentuate Risk:  High Call Volume, Limited Access, System Error

High Call Volume, Limited Access There was a time when patients could easily get an appointment or reach their physician by phone. For many people, those days are over. Healthcare systems are under tremendous pressure to maintain high standards of patient care while reducing costs. Managed care organizations enroll large numbers of members (all potential callers), while managing the demand for access (  by offering relatively  limited numbers of available appointments).

This streamlined process of managed care puts stress on the telenurse, who must decide who gets the scarce appointments. While telenurses lack the advantage of face-to-face encounters, they are still expected to adhere to the same standards as nurses in clinical settings. This tends to make telenurses hyper-vigilant about risk management. And rightly so, since telephone triage may be one of the riskiest subspecialties at present.

System Error   In 1999, the Institute of Medicine (IOM) issued a report on medical errors, stating that "medical errors kill some 44,000 to 98,000 people a year," depending on which study is cited. IOM laments that the health care industry is more than 10 years behind other complex, high-risk fields such as the airline industry, which, due to federal regulations, has a very good safety record.

Contributing to most medical errors is the fact that America's healthcare system is not optimally organized, leading to "system error." Flaws such as lack of coordination, continuity problems, and rapidly changing medical knowledge and technology can lead to breakdowns in the system. One of the recommendations of the IOM is to implement systems to ensure safe practice. Telephone triage, as a new entity, has begun the process of reducing error through adopting new standards of practice.

Trends that Diminish Risk: Standards and Policies

Standards  Between 1998 and 2001, three associations - American Association for Office Nurses, American Nurses Association and the American Association of Ambulatory Care Nurses - developed standards of practice for telehealth nurses. In 2000, the Utilization Review Accreditation Commission (URAC) developed standards for medical call centers. [See Box B for website URL] Standards are a first step in building a "culture of safety."

Policy statements  In the ED setting where telephone triage frequently occurs, giving advice has always been a source of controversy. While callers have traditionally regarded the ED as a natural source for advice, ED providers have traditionally discouraged giving advice over the telephone. At one time, the prevailing policy in Eds was that no advice be given over the telephone. This policy proved unworkable, and now advice is given over the telephone primarily for crisis management under life-threatening situations.

Policies for telephone triage in an ED setting differ greatly from those in an ambulatory care or office setting. For example, the American College of Emergency Physicians (ACEP) states: "With the exception of life-threatening emergencies, ACEP recommends the that Eds do not attempt medical assessment or management by telephone. Callers should be advised that Eds are available at all times to assess their condition." (ACEP Policy Statement, 2000)

The Emergency Nurses Association (ENA) recognizes and supports the emergency nurse's duty to provide advice in emergency situations by verbally assisting in CPR or to perform measures that save life or limb. However, ENA stipulates that no advice is to be given over the telephone in situations where an established telephone triage program is not in place. In contrast to ACEP, the Emergency Nurses Association recognizes that telephone triage for non-emergency issues from the ED is permissible, stating: "Emergency registered nurses should have specialized education in triage, telephone assessment, and risk management." (ENA, 2001)

Managed care has significantly impacted telephone triage, specifically the issues of access and "prior authorization." This has lead both the American College of Physicians (1998) and the Emergency Nurses Association (2002) to issue policy statements addressing the importance of ensuring access to emergency services.

Emerging Controversies and Risks in Telehealth: International Call Centers, Protocol Development Standards

International Call Centers  Although it seems very risky, some commercial interests may outsource telehealth call centers to distant countries such as India and the Philippines in the coming years. Given the potential of technology and availability of English-speaking nurses in those countries, combined with the need to cut healthcare costs, this is not a surprising development. Already, commercial call centers outsource services such as airline reservations, credit card consumer hotlines, and software support to offshore call centers.

International medical call centers plan to employ English-speaking nurses who have passed the National Council Licensure Exam (NCLEX) to take calls from the U.S., as well as from other countries. These international call centers have the economic advantage of operating at a fraction of the cost of U.S.- based call centers. However, many questions remain: Will there be international licensure and standards? How will litigation be handled? Clearly, legal issues present a major obstacle to progress in this area.

Protocol Standards  The creation of electronic protocols and sophisticated medical call centers has been a mixed blessing. On the one hand, technology has helped by making some aspects of the process (documentation, reporting, tracking and trending) more efficient; on the other hand, it is unclear whether using electronic protocols helps or hinders the process of effective decision-making.

In the early 1990's, a hotly debated controversy revolved around what  the directives  should be called. Were these "standing orders" (Marker, 1988) to be called decision-making tools ("protocols"), or decision support tools ("guidelines")?

A second and related controversy erupted over how closely these "protocols" should be followed. Some developers and other experts maintained that nurses must follow them to the letter. This rigid approach was eventually discarded. Now, most experts agree that protocols (whether paper or electronic) are decision-support tools that are best operated by experienced, trained nurses with good judgment. Thus, the ultimate decision-maker is the professional, not the protocol.

To a large degree, electronic protocols are relatively untested, and they involve many unquestioned assumptions and design issues. Legal implications prompt questions: How does one know a given guideline is reasonable and reliable ? Are algorithmic approaches superior to pattern-based approaches in decision-making? Which protocols work the best? What are the standards for developing such guidelines? How important is user friendliness? Should there be a User's Guide for the protocols? Finally, can developers be liable for negligence if protocols are discovered to be flawed or inadequate?

To be sure of protocol reliability and validity, practitioners will have to wait until protocol developers allow their proprietary products to be tested and compared. The competitive and proprietary atmosphere currently surrounding software development indicates that high-quality, independent research will not be performed in the near future. In the meantime, nurses must realize that they may be working with a product that may not have been tested in depth, thereby increasing risk.

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BOX B:  Websites Related to Standards and Policy Statements

Regulations

Emergency Medical Treatment and Labor Act ( EMTALA)

http://www.cms.hhs.gov

Health Insurance Portability and Accountability Act of 1996 (HIPPA)

http://www.hhs.gov/ocr/hipaa/

Policy Statements

American College of Emergency Physicians (ACEP)

Providing Telephone Advice from the Emergency Department

http://www.acep.org/

Prior Authorization

http://www.acep.org/

Emergency Nurses Association (ENA)

Position Statements

re Telephone Advice

http://www.ena.org

re Access to Healthcare

http://www.ena.org

State Boards of Nursing

Position Paper:  Telenursing: A Challenge to Regulations

National Council of State Boards of Nursing

http://www.ncsbn.org

Standards for Telehealth Nursing and Medical Call Center

Core Principles on Telehealth--American Nurses Association (ANA)

http://www.nurse.org/

Telehealth Nursing Practice Administration and Practice Standards--American Association of Ambulatory Care Nursing (AAACN)

http://www.aaacn.org

Health Call Center Accreditation Standards Summary (Utilization Review Accreditation Commission (URAC)

http://www.urac.org

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Professionalism:  The Best Risk Management Measure

According to many experts, patients don't sue doctors (or other medical personnel) that they like personally. (Stein, 2000; Allen & Burkin, 2000; Clawson, 1998) Another expert states that "given the same outcome, you are three times more likely to get sued if you are perceived badly by the patient." (Cordover, 1997) Another expert declares succinctly: "Politeness is the best remedy to malpractice." (Stein, 2000) Probably one of the most important measures any health professional can take to manage risk is to treat the patient with care, respect and honesty.

A Timely Response Is the Best Response

The case study below is an extreme example of corporate negligence, and, not surprisingly, the daughter sued the HMO claiming "incompetent and callous care resulting in the death of her mother." The daughter felt " her mother was not taken seriously" when she complained of severe abdomen and back pain in her many calls to the HMO.

Clearly, service given in this case cannot be described as professional or timely. Mrs. White was never allowed access to the Advice Nurse, the most timely and appropriate point of contact to address her problem. However, it is important to note that while many people suffer injuries due to professional negligence, most never file malpractice suits. Those who do file lawsuits almost always do so because they feel that they were not treated well.

CASE STUDY:  Failure of Timely Access to Provider/Advice Nurse

Mrs. White, a 74-year-old female, experienced severe abdomen and back pain over a two-day period. She had a past medical history of smoking and hypertension. What follows is an actual log of events the day she called her HMO for an appointment.

8:15     Mrs. White calls, waits on line 20 minutes, hangs up.

9:45     Mrs. White calls and speaks to a medical clerical staff member. Mrs. White requests an appointment, which is refused, then asks to talk to the advice nurse, which is also refused. She then asks to talk to MD, and is told that he is not available. She is told to call back in approximately 5 hours to book an appointment.

10:15   Mrs. White calls again, with worsening pain. She speaks to a medical clerical staff member and is subsequently transferred three times by three different people. The third person takes a message to send to the physician. The email contains a message regarding "back/abdominal pain". No other data is collected. No triage is performed. The email is sent, without any prioritization, to the physician and reaches the doctor's inbox in no particular order. Ms. White awaits a phone call from the doctor.

1:45     Mrs. White calls, in worsening pain, after waiting until after lunch (at which time she expected to receive a return phone call from MD). She speaks to a medical clerical staff member and is transferred two more times, finally reaching Patient Assistance voicemail. She does not leave a message, but hangs up.

2:20     Mrs. White calls, in worsening pain. She speaks to a medical clerical staff member. She is again transferred two times and finally gets a 4:15 appointment after the third transfer.

2:45     Mrs. White's daughter drives her to the clinic. Mrs. White registers after explaining that she is in a lot of pain. She requests to be seen sooner than her 4:15 appointment, and is told to sit down and wait. Twice, she goes to the desk and pleads for an earlier appointment.

4:30     Mrs. White is seen by the physician and diagnosed with a leaking aortic aneurysm. The paramedics are called. According to the daughter, the staff laughed because they did not think Mrs. White required paramedic transport. Mrs. White is transferred to the ED, and later undergoes surgery, receiving 22 units of blood. She expired several days later.

Communication is the Key

Communication, or more often the lack of it, by medical providers plays a large role in triggering anger and dissatisfaction among patients. When patients feel they're being rushed, not listened to, or not given the opportunity for informed consent about their treatment, they rightfully become angry.

Researchers have found that if a medical provider simply spends even a little bit more time with a patient, it can make the difference between being sued or not. Levinson (1997) recorded surgeons' conversations with patients, discovering that surgeons who had never been sued spent three minutes longer with patients than physicians who had been sued. In addition, surgeons who had never been sued were among the group that made "orienting remarks, engaged in active listening, and were more likely to laugh or be funny." Interestingly, there was no difference in the quantity of information given the patients by the two groups of surgeons, just the quality of the interaction.

Even the tone of voice a provider uses when communicating with a patient can make a significant difference in whether the provider is likely to be sued later. Ambady (2002) analyzed audiotapes of surgeons' conversations with their patients by electronically garbling the words so that only the tone was audible. Judges of the tapes were able to predict which surgeons got sued, simply by listening to the tone of voice. The less dominant and more concerned the voice sounded, the less likely the surgeon would be to have been sued. Since tone of voice is a major conveyor of respect -- and voice is the primary component in telephone triage interactions -- it makes professional sense to consistently convey a respectful tone of voice.

Jeff Clawson, M.D., a pioneer in emergency medical dispatch, corroborates these findings. He states if "an EMD says ‘hello' and means it.....and projects caring through a kind tone of voice and helpful demeanor, s/he is less likely to be sued than someone who does not." (1998)

Patients' perceptions of providers' professionalism and concern play a large role in whether the patients sue or not. In the following case, the patient perceived a tangible lack of concern, and this was a major basis of her lawsuit. Lack of timely access to the provider is another very common complaint. By making themselves available to communicate within a reasonable time frame, providers can avoid appearing unconcerned. (Poole, 2003)

CASE STUDY:  A Communications Failure

Mrs. Shannon, a pregnant woman, was instructed to contact her physician or HMO Advice Line for symptoms or questions. Three days later, she developed abdominal pain and was seen by her physician. He diagnosed fibroid pain and gave Mrs. Shannon instructions to rest. In the successive four days, Mrs. Shannon called the physician four more times.

On the fifth day, she contacted the Advice Nurse, complaining of abdominal pain and frustration about not being able to reach her physician. The Advice Nurse referred her back to her physician, which the patient was again unable to reach. She called the Advice Nurse again the next day, reporting worsening pain, and was again told to contact her MD. She finally reached her physician, who reassured her that she was not in labor. In her final call to the Advice Nurse, she was referred to an orthopedic surgeon, who advised that she go the ED immediately. Shortly after arrival, Mrs. Shannon delivered a severely premature infant, who died two days later.

The claims against the HMO included vicarious liability and corporate liability. A physician expert witness testified that the advice nurses failed to meet the standard of care by not advising Mrs. Shannon to be seen immediately by her physician or in the ED. The nurses also failed to follow up with the physician to assure continuity of care. The Pennsylvania Superior Court maintained that the HMO had a liability "based on the absence of protocols or polices related to providing medical advice over the telephone to HMO members." (Shannon vs. McNulty, in Brent, 2001)

Communication as Care

A familiar rule in healthcare is that patients need to "know how much you care, before they care how much you know." (Cordover, 2000) Patients perceive courtesy, a considerate manner, information freely provided and timely responses as indicators of quality. And patient loyalty reduces the risk of lawsuits. [See Box C]

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BOX C   Building Patient Trust and Loyalty

Telenurses can build trust through the following actions:

• Facilitate the patient's access to care. Act as the patient advocate to ensure that the patient has adequate access to timely, appropriates care. Intervene as necessary on the patient's behalf.

• Avoid building up unrealistic expectations. Confirm that the patient has given informed consent and had the opportunity to ask questions and verbalize concerns.

• Handle complaints personally. If problems arise, handle them with professionalism and dispatch. Use active listening skills; communicate your intent to help solve the problem.

• Build interpersonal relations. Engage callers immediately with a welcoming attitude, respect and a smile in your voice. Instant rapport is critical, not only to ensure excellent communications, but also to build trust and loyalty.

• Be a model of thoroughness, care and skill. Good nursing care is the best defense against a lawsuit. Excellent practice will be noted by the patient and perceived as competence, thereby lessening the risk of a lawsuit.

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Negligence in Telephone Triage: A Failure to Communicate

"...one must acknowledge .... that the nurse performing telephone triage is, first and foremost, a communicator, and has a charge to do the ‘ordinary extraordinary well'...one definition for excellence. In addition to communicating well, the nurse must have a duty to do so." (Siebelt, B. in Telephone Triage: Theory Practice and Protocol Development, 1993)

In telephone triage, negligence may often be traced to a failure to communicate. In a malpractice lawsuit, the plaintiff must prove that the defendant had a duty to communicate, failed to do so, that harm was foreseeable, and that it was the breach that caused the harm.

The duty to care is rooted in the fact that everyone has a duty to behave reasonably. Failure to act in this manner constitutes negligence, and each person is responsible for his or her own negligence. When negligence is alleged, the plaintiff must prove that the defendant (party accused of negligence) was guilty of it. Any individual who alleges negligence must provide proof that the person accused of negligence failed to act reasonably. [See Box D for definition of terms]

Given that telephone triage is a risk-prone subspecialty for the near future, telenurses should be aware that malpractice suits naming nurses are on the rise. According to one expert there has been a 10-percent increase since 1995. (Stein)  Experts relate that nurses are vulnerable to the same types of lawsuits that physicians are. According to Marc Mandell, an attorney who specializes in risk management, "Unlike a generation ago, jurors are more likely to agree that if something goes wrong, the nurse should have picked it up, just like a doctor." (Stein, 2000). [See Boxes F and G]

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BOX D: Defining Terms

Adverse event: An injury resulting from medical management rather than the underlying condition of the patient. (Medical Error Reduction Act, 2000)

Corporate liability: A form of vicarious liability, in which the employer is a corporation.

Delegation: Transferring to a competent individual the authority to perform a select nursing task in a select situation. The nurse retains accountability for the delegation (NCSBN, 1995)

Malpractice: The term "malpractice" is specifically related to professional negligence and is committed by a professional. In effect, professionals are held to a higher standard than non-professionals.

Negligence: Failure to provide due care to patient.

UAP: Unlicensed Assistive Personnel: Any unlicensed personnel, regardless of title, to whom nursing tasks are delegated. (NCSBN, 1995)

(Medical Error Reduction Act, 2000)

Vicarious Liability: Liability on the part of employers, who become accountable for the negligence of an employee. For example, physicians are accountable for advice given by any employee.

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BOX E: Source of Standards

When attorneys need legal opinions regarding Telepractice Standards, they traditionally rely on the following:

• Nursing and Telehealth Professional Standards (AAACN, ANA, AAON)

• Policy statements (ENA, ACEP, NCSBN)

• Regulatory standards (JCAHO, NCQA, URAC, EMTALA, HIPAA)

• Writings of legal experts

• Case law

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BOX F:  Common Claims of Practitioner Negligence

Current and past research points to several key areas related to negligence:

• Failure to use systematic approach or process
• Improper use of, or failure to use protocols/guidelines
• Failure to identify problem acuity or severity
• Failure to make proper disposition
• Failure to communicate significant information to in timely manner to patient or physician
• Failure to document
• Delay in returning calls
• Delay in care

(Mahlmeister, 2000; Wheeler, 2005)

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BOX G: Avoiding Common Negligence Pitfalls

Document comprehensively and defensively, at the time of the call

• Make certain that the physician is going to follow through; if not, find someone who will.
• Use the chain of command; don't be afraid to go up to the next highest level.
• Utilize continuing education courses.
• Know your Nurse Practice Act.
• Use written guidelines and protocols.
• Obtain copies of your job description, job qualifications, policies and procedures in writing. These are the standards you will be held to in case of litigation.

(Stein, 2000; Mahlmeister, 2005; Wheeler, 2005)

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"Duty of Due Care": Areas of Potential Risk

Since the patient is dependent upon the nurse (the professional), the nurse owes the patient competent care. This is the nurse's "duty of due care" which is based on two underlying concepts: the standard of care and the duty owed to a patient by a nurse. The duty is based on the underlying nurse-patient relationship. Generally speaking,  the standard of care means that the nurse must do what a reasonable, prudent nurse would do under the same or similar circumstances.  The scope of nursing implies that the nurse must do no more than s/he  is  licensed to do.  Since the patient is dependent upon the nurse (the professional), the nurse owes the patient competent care.

In concrete terms, this means that the nurse must actively elicit, in a systematic way, the patient history of the problem and any other relevant details that impact that problem. It is not incumbent upon the patient to volunteer all needed information; a patient is not a trained medical observer and may be laboring under misperceptions of the symptoms. The patient is dependent upon the nurse; therefore, it is the nurse's duty to do a thorough assessment.

Implied Relationship  The duty of care is based on the legal principle of the nurse-patient relationship.  Once a relationship is established (literally when the nurse answers the phone), the nurse is held to the standard of care and must make efforts not to abandon the client.

Client Abandonment  The issue of client abandonment is controversial. Abandonment may occur any time that the health professional "unilaterally terminates the patient-caretaker relationship without an adequate replacement, where this action results in some preventable harm.  (Poole, 2003; Clawson, 1998)  Telephone triage nurses run this risk in two types of situations:

• Call Transfer in an Emergency  Transferring callers in crisis to the appropriate agency is an activity fraught with anxiety.  However, at times it is the only appropriate action to take. Bear in mind that some experts believe that the possibility of disconnection could lead to allegations of abandonment. Many experts advise that the nurse remain on the line with the caller, while asking a colleague to contact the paramedics, rather than having the caller hang up and redial. (Wheeler, 1993)  Clawson cautions against asking callers to hang up and redial 911, because it may cause them to panic and/or drive to the ED in a state of emotional distress . Better yet, install a seamless three-way conference call capability to the appropriate emergency hotlines (911, suicide prevention, rape crisis, poison center), so that the nurse need never leave the line, or the caller. Written policies about the procedure are advisable.

• Routine Calls  Any time the nurse provides advice, s/he must give  "complete advice" to the caller.  In other words, if a nurse gives partial advice and is interrupted (perhaps by another call), failing to complete the advice instructions may be perceived as abandonment. A good rule of thumb here would be: "Always finish what you start."

Nursing Impression vs. Diagnosis  In the past, some experts claimed that telenurses were essentially "practicing medicine" and "diagnosing" by phone. (Harnett, 1998)  Currently, most experts agree that the nurse's role is to triage, rather than to diagnose. (Reisman, 2002) One very simple way to avoid being perceived as "diagnosing" is to avoid using medical terminology when speaking with callers and always use lay language or the patient's own description ("abdominal pain"), with modifiers (9 on a scale of 10), when documenting.

A good rule of thumb to use whether speaking the patient or charting is to think, say and write " impression".  Whatever summative lay terms are chosen, they are a "working diagnosis" and neither a medical nor a nursing diagnosis.

Delay and Denial of Access: An Emerging Risk

Delay and denial of care is a growing problem, striking close to home with telenurses.  In the current managed care environment, which seeks to contain costs by reducing inappropriate ED (and paramedic transport) and office visits, telenurses are sometimes forced to act as "gatekeeper".  As a result, telenurses and receptionists may unwittingly be caught in a bureaucratic trap.

In the following case study, delay in getting an infant to the nearest ED had tragic consequences.

CASE STUDY:  Directed to ED, but not Nearest ED

At 3 AM, a mother called an HMO regarding her infant, who had a fever of 103 degrees. The advice nurse failed to obtain a complete history, and gave routine advice for fever control.  She also consulted with the pediatrician on call, failing to provide a complete picture of the infant's illness.  On the orders of the pediatrician (who was under the erroneous impression), the nurse directed the parents to an ED that was part of the HMO plan (but was 45 minutes away).  She did not direct the parents to the nearest ED (20-25 minutes away).

Enroute, the child had a cardiac arrest due to hypoperfusion syndrome and meningitis. Subsequently, his hands and feet had to be amputated, due to lack of circulation.  The jury awarded the parents $45 million in damages.  (Hartnett, 1998)

The issue of access has major legal implications for telenurses. In 1986, Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA) to ensure public access to emergency services, regardless of their ability to pay. Mahlmeister stresses that "all nurses involved in triage familiarize themselves with the statute," adding that "any attempt to limit access to emergency care can be a violation." (1998)

Interestingly, patients themselves may contribute to the access problem, through their own reluctance to call 911.  A recent study found that people who are charged for emergency services were less likely to call 911.  In the study, researchers found that although 89 percent of people surveyed said they would use EMS services to go to the hospital, only 23 percent of patients arrive by ambulance. (Circulation, 2000)  The case study below illustrates a similar  instance.

Case Study:  Request to be Re-hospitalized

A recently discharged patient called the doctor's office requesting to be "re-hospitalized."  He told the receptionist that he "felt sicker than when he was discharged."  The receptionist inappropriately told the patient that he needed to see the doctor first, per the office protocol.  The patient was finally seen at the end of the day, after waiting an additional 45 minutes.  He collapsed, was taken to the ED via ambulance, where he died.

Corporate negligence was found, due to lack of policy and procedure for who should handle such calls, giving inappropriate advice, no documentation and failure to inform the physician.  (Saxton 1999)

A telenurse should focus on how to insure ensure patient safety and timely access to emergency services, not on who will pay for paramedics.  The nurse should always be alert to the possibility that of a patient's over-concern with cost-containment or payment issues contributing may contribute to delay.  This issue may be a "hidden agenda" leading the caller to minimize symptoms in order to avoid incurring costs associated with paramedic transport.  Detailed, written policies and procedures should clearly address the access issue and the correct procedure to follow.

Bureaucratic obstacles can be subtle.  While malpractice claims from high-risk populations (pediatrics, geriatrics, and women of childbearing age) have not changed, what has changed is that many claims from high-risk population are now related to lack of timely access to specialists.  Due to cost-containment strategies, callers often need to be "screened" by their primary care provider prior to seeing a specialist.  This policy could dangerously delay access to the patient's OB/GYN, Pediatrician, Internist or Oncologist, for example.

The Role of Receptionists, UAPs, LVNs and LPNs in Telephone Triage

Employing secretaries, Unlicensed Assistive Personnel (UAPs), LVNs and LPNs to manage calls prompts several questions:  How much legal risk is there?  Are they qualified?  Can physicians or nurses delegate the important task of telephone triage to them?  Can unlicensed personnel perform limited telephone triage with a "list of emergent symptoms" or some kind of abbreviated protocols?  In the managed care environment (with a goal of managing patient access and demand), could even appointment making, without an initial assessment, be a form of unacknowledged triage and thereby an exposure to risk?

The following case study exemplifies the possibility of "triage by default" by an unqualified receptionist.

CASE STUDY: Appointment making or Decision-making?

John Dodd, a 44-year-old male, called the doctor's office 9:30 AM, complaining of "heartburn, nausea, tingling in his arms and legs, diarrhea and body aches."  The receptionist told him that his symptoms sounded like the flu and promised to call back with an appointment, which she failed to do.  At 3:15, Mr. Dodd called again, now complaining of "chest pain and shortness of breath."  Per the receptionist's instruction, he arrived at 5 PM for an EKG. Following the EKG, he collapsed and died of a myocardial infarct.

The plaintiff alleged that the receptionist was negligent for failing to recognize the seriousness of the symptoms and for failing to communicate them to the physician. Plaintiff further claimed that the physician was negligent in not properly training the receptionist to identify serious symptoms. [1]

Most experts agree that using UAPs to perform telephone triage is risky. (Schmitt, 1999; Lafferty & Baird, 2001; Poole, 2003; Dernovsek & Espensen, 2003; Mahlmeister, 2005; Smith. 2005)  It is one of the most problematic issues confronting telephone triage. It is controversial because it is still an accepted (and ill-advised) practice in many settings. Secondly, some employers don't seem to differentiate between the skills of symptom assessment, making dispositions, providing information or advice, message taking and appointment giving. The case study below demonstrates the blurring of such boundaries.

Case Study:   No Assessment = Delay in Care

An elderly gentleman called the clinic, insisting on speaking with "his doctor."  The receptionist responded that the doctor was on vacation and offered an appointment the following week, when the doctor returned.  When the man was eventually seen, the doctor discovered his patient had suffered a mild heart attack in the previous week. The patient apparently did not recognize his symptoms as serious, and the receptionist did not ask about them.  Thus, the patient was not assessed, a delay in care ensued and the patient suffered further damage to his heart.

(Related to Wheeler by physician at Telehealth Conference, 2000)

Apparently, in the above case, the patient volunteered no symptoms.  Indeed, he very well may not have experienced anything that he would label a symptom.  Especially with the elderly, symptoms may be subtle or even silent. Perhaps in this patient's mind, he was simply calling to "talk to his doctor," a trusted caretaker. He may have wanted to talk about a concern, or the fact that he had been feeling tired, or maybe he wanted to discuss with "his doctor" whether he needed an appointment.

Typically, patients attempt to decide for themselves when they need to be seen (appropriately or inappropriately), often based on what is "convenient" for them. However,  given  the  environment of managed care, , it heightens the need for a professional to elicit symptoms prior to appointment giving.

The following case study provides an example of the possible consequences of an untrained individual providing inadequate triage.

CASE STUDY:  Failure to Recognize Emergent Symptoms

A wife called the doctor's office regarding her husband's complaint of chest pain.  The receptionist decided that the symptom was not urgent and made an appointment for three days later.  The man died of a myocardial infarct.

(Rubsamen, 1999)

Should the task of telephone triage be delegable?  Many State Boards of Nursing consider the delegation of triage to untrained individuals to be an unacceptable delegation of the nursing role. The National Council of State Boards of Nursing states: " While nursing tasks may be delegated, the licensed nurse's generalist knowledge of patient care indicates that the practice-pervasive functions of assessment, evaluation and nursing judgment must not be delegated." (NCSBN, 1995)  According to Mahlmeister, the Boards of Nursing in many states prohibits the RN from delegating telephone triage to UAPs or even LVNs or LPNs  She states, "Only MD's can delegate this task, thereby assuming vicarious liability. (2000)

As a nursing task, telephone triage involves the challenge of "making decisions under conditions of uncertainty and urgency." (Patel, 1995)  The work is characterized by the inability to visualize or examine the caller, as well as and mental tasks that are fraught with uncertainty and driven by intense critical thinking. In many settings, the call volume is high and nurses experience brief encounters with as many as 60  callers per shift.  Under the best of circumstances, telephone triage can be a very stressful and difficult task, even for trained, experienced RNs.

Thus, the lack of qualifications by UAPs, LVNs and LPNs combined with this expert-level task cannot reasonably meet the criteria set forth by the National Council of State Boards of Nursing for delegation of tasks: "right task, performed under the right circumstances, the right person, with right direction and supervision." (2001)  Of all nursing tasks, telephone triage is the least right and defined task, performed under the least optimum circumstances. And the UAP is the least qualified person to do it, and the prospect of supervision is the least possible.

The most conservative policy (and the most triage-intensive) would be to have the RN assess all symptom-based calls, followed by appointment making by receptionists, at time frames determined by the RN.  After all, the rightful role of the RN is to get the patient to the right level of care with the right provider at the right time and place.

As with all triage, sometimes the optimal disposition is that  the patient  stay at home and manages the problem with home treatment, thereby allowing the system to function more efficiently and cost-effectively.  Not every caller wants or even needs an appointment; those who do should have priority. The legal ramifications of appropriate decision-making  go to the heart of the stated intent of telephone triage: to reduce inappropriate ED and office visits.

Perhaps the appropriate role for unlicensed unlicensed personnel is to handle all administrative calls, take detailed, structured messages from patients and make follow-up appointment as directed by the RN or for non-symptom-related appointments.

Misrepresentation Leads to Misunderstanding

Anytime someone leads the caller to believe that s/he is speaking with a professional (physician or nurse), when they are not, it constitutes misrepresentation and presents a legal risk. To avoid inadvertent misrepresentation, develop a policy requiring staff to identify themselves by title -- medical assistant, receptionist, nurse, or physician, upon initially greeting the caller.  This will provide context for the caller, who needs to know with whom he is speaking about his symptoms.

Risk Management Strategies: Comprehensive and Reality-Based

Experts stress that a pro-active approach to risk management is  the best defense in a malpractice suit. (Mahlmeister, 2005; Smith, 2005; Clawson, 1998, Marker, 1988) Evidence of a risk management system and a sound problem-solving approach to telephone triage reduces risk. [See Box H]

Robert Smith (2005) maintains that it is not enough just to have "bits and pieces" of a system  - a few protocols, haphazard training, or a form that no one likes or uses correctly.  Systems that are not workable, or that have partial or flawed components, can actually contribute to "system error."   Make it a goal to develop elements (protocols, documentation, standards, training, etc.) that are user- friendly, integrated and seamless.

Develop standards and policies that are as "reality-based" as possible.  For example, if follow-up calls are not feasible with existing staff, don't make them part of your policy and procedure.  Unrealistic standards can damage your credibility should they be brought into court; institutions must be able to meet their own standards.  Finally, develop a review process whereby the following elements are reviewed, revised and dated annually. [See Box I]

_______

Box H: Risk Management Tools

Risk management can be bolstered by a systems approach defined as a "regularly interacting or interdependent group of items forming a unified whole." (Webster's Dictionary, 1994) Try to integrate the following tools into your risk management approach.

§ Guidelines or Protocols
§ Documentation form
§ Standards or Policies and procedures
§ Training Program: Orientation and ongoing in-services
§ Job Description
§ Job Qualifications
§ Staffing Standards
§ Quality Improvement Program: Competency testing performance appraisals, concurrent monitoring

_______

BOX I:  Procedural Policies:  What Are the Key Policies?

Mahlmeister advises telephone triage practitioners and managers to "plan for and practice those things you never want to encounter, but that you know will happen some day." (2005)  This is sound advice for any healthcare professional, especially for practitioners in the nascent field of telephone triage, where risks are still being identified.

Recognize pitfalls and make provisions for them in advance.  To avoid risk, develop policies to anticipate predictable but infrequently encountered problems and situations such as those listed below.

• Adolescent confidentiality
• Alternative therapies
• Bioterrorism/Hazardous Spills/Explosions/Release of Gas
• Chain of Command
• Child caller
• Charting Standards
• Confidentiality
• Crisis intervention Policy

Childbirth Coaching
CPR
911
Heimlich Maneuver                
Paramedic Transport
Suspected Abuse (All Ages)

Sexual
Physical
Domestic

Homicidal calls
Poison Center
Suicidal calls

• Delegation of telephone triage

• Problem Callers

Abusive/threatening callers
Drug-seeking
"Frequent flyers"
Mental Illness
Non-compliant callers
Obscene callers
Substance Abuse

o       Referral Policy

o       Second/third party callers

o       Transfer policy

o       Translation services

o       Upgrade/downgrade policy

Documentation: Ally or Enemy?

Of all areas in telephone triage, failure to document is still a common pitfall. In telepractice, the record can be an ally or an enemy, either offering proof of the care or throwing into question whether any care was rendered.  Documentation is not discretionary; it is required by the standard of care.  (See Box J)

Reasonable and Prudent  In telephone triage, what is "reasonable and prudent" documentation?  Charting on a  progress note is adequate, but using a dedicated form with specific required information is best. A form that facilitates (or even forces) collection of data acts as a CQI (Continuous quality Improvement) measure.

One of the great advances in the field is the availability of an Electronic Medical Record (EMR).  Those who have access to it can view a "snapshot" of a patient's previous medical history, allergies, and medications. Another advantage is that one can see the previous call history, which may an indicator of urgency (when frequent calls are made over a short period), as well as an invaluable tool of continuity of care, lessening the possibility of someone falling through the cracks.

While some offices and clinics may not have EMRs, it is reasonable to expect that even  "low-tech" systems can create a similar system of summary and paper trail.  Currently, many offices post an abbreviated patient history in the front of the chart, as well as a continuous paper trail of all contacts in the chart.

In the case study below, it is possible, but unlikely, that a jury would believe that the nurse performed a thorough assessment and consulted protocols, but neglected to document the call.

CASE STUDY:  Failure to Document

After prolonged labor and a forceps delivery, a newly post-partum mother experienced abdominal pain and difficulty urinating.  After going home, she called the doctor's office complaining of hardening of her abdomen, cramps, nausea, vomiting, fever, fatigue and vaginal drainage.  The advice nurse suggested symptom relief for "flu" symptoms.  Nine days later, Mrs. Greens' symptoms worsened and she was brought to the ED.

Diagnosed with sepsis, acute respiratory distress syndrome and a perforated bladder, she died within a few days.  Few records of the phone calls were available; the surviving family was awarded $1.3 million.

Descheness v. Anonymous (1992)

Charting by Inclusion or Exclusion  Traditionally, physicians document by exclusion (omitting pertinent negatives), while nurses chart by inclusion (including pertinent negatives).  Robert Smith (2005) advises that whether by inclusion or exclusion, it is best to have a ‘usual practice ‘, and to be consistent in documentation. In telephone triage, the issue of charting by inclusion or exclusion is still a controversial one, best addressed by in-house counsel and formal written policies.

The most conservative approach is to chart by inclusion, including every pertinent negative.  This is especially important with head, chest, respiratory, abdomen, dizziness and "flu" symptoms, because these symptoms are often most associated with serious conditions (MI, Appendicitis, Ectopic pregnancy, sepsis, infection). Cordover advises medical students that  "you cannot document too many pertinent negatives." (1997)

_____

BOX J :  Guidelines to for Standard Documentation

Standard documentation requires complete, accurate, timely observations in the client's own words. Here are some tips to follow for good documentation.

• Charting is "contemporaneous" - done at the time of the call
• Cryptic (brief, concise and systematic)
• Approved abbreviations and terminology
• Quantify where possible - use measurable terms for symptoms with time frames as well (for example, numbers of wet diapers over 8-hour period)
• Be specific; avoid vague expressions (for example, "lethargy," "diarrhea," "flu")
• Give time frames (8,16 ,24, 48 hours) as related to  symptoms or treatment
• Record nursing "working diagnosis" and "impression"
• Document what advice given,  per protocol name or number
• Record any deviations or override of protocol, including protocol name and number
• Chart the client's understanding and agreement to plan of action
• Include follow up information as appropriate
• Include date, time, nurse's first initial and last name, and title

________

Summary

By its very nature, telephone triage is a uniquely high-risk subspecialty. Although the legal principles have not changed, new areas of risk have been identified.  Patients are at risk of falling through new holes  in the "safety net," holes  created by a lack of consistently enforced standards.  High-volume and high-tech systems may increase the potential for "system error."

As a result of advances in the field, telepractice has become more formalized. Now a "safety net" of  new standards, regulations and policies  exists. Medical call center managers and telenurses can avoid the common pitfalls, identify new risks, incorporate new policies and develop in-house standards to meet the needs of patients in the fast-paced and high-tech environment of telehealth.

___________________

BOX K:  CASE STUDY: Analysis of a Mistriage

The following  case study  analysis provides a summary of many of the issues presented in this article.

Baby Chris Jones, a newborn, was found to have meconium staining and questionable bilateral pneumothoraces.  He was admitted to the Intensive Care Unit and was treated with antibiotics, monitoring and supplemental oxygen.  He progressed until he was discharged with a diagnosis of bilateral pneumothoraces, VSD and PDA.

At discharge, the parents were given instructions to notify the HMO for increase in respiratory rate, poor feeding, decreased urine output, blueness to skin or for any other problems and questions.

Three days after the baby's discharge, Mr. Jones called the HMO after-hours advice line. Mr. Jones informed Nurse Anne that "the baby wasn't feeding," that the parents were concerned "about his urination - he had not been wetting his diaper," and that "his hands, feet and eyelids were swollen."

After being given this history, the advice nurse reassured Mr. Jones that the baby "was okay" and that a "baby's hands and feet tend to look more swollen, because they have more baby fat." According to Mr. Jones, the advice nurse then stated that if the parents were concerned, they could have an appointment for the next morning and an appointment. was made for 10:30 the next morning.

No "advice note" has been produced by the HMO reflecting the call from Mr. Jones.

At approximately 7:00 AM the following day, Mr. Jones again telephoned the HMO  advice line and spoke with Nurse Kathy who generated an "advice note," obtained a history and noted signs and symptoms. She contacted the pediatrician, who instructed her to advise Mrs. Jones to immediately take Chris to the emergency room.  Chris Jones was admitted to the ED at approximately 8:00 AM, where he was diagnosed with congestive heart failure and cerebral atrophy.

What resulted when Mr. Jones called his HMO's after-hours  advice line, when he and his wife became concerned about their newborn son Chris, shows that the HMO 's Advice System itself was flawed. This inherent flaw caused the system to fail both the nurse, who was its employee, as well as the Jones family. The complexity of the breakdown in the system caused by this inherent flaw is outlined below.

• Mr. Jones very likely reached an Advice Nurse who had little or no experience with pediatric populations -- since such experience was not an HMO requirement for after-hours nurses. Nurse Anne failed to identify Chris Jones as a high-risk patient -- one requiring special care and caution.   The call was mistriaged and no record of it was generated and/or maintained.
• In addition, Nurse Anne had no timely access to newborn discharge information or other medical history information.
• The HMO had no documented policy requiring that its Advice Nurses elicit a past medical history. It was likely that such information would not be otherwise available to the after-hours Advice Nurse. Not surprisingly, Nurse Anne failed to ask any key questions to elicit an adequate history.
• If Nurse Anne had consulted HMO 's neonatal/pediatric protocols, she would have found them inadequate and unhelpful . . . there were no protocols for such common neonatal/pediatric conditions as dehydration and sepsis. There were no protocols defining general principles or axioms to guide the Advice Nurse. There was no documented, required chain of command in the event that problem was "borderline" or where "no protocol" matched the symptoms viewed the patient's problem.

In this case, HMO's failure to provide an adequate standards-based system not only failed to prevent nursing errors, but in fact contributed to the nursing errors.

Violations of Standard of Care Related to the HMO 's Advice Nurse System

The HMO failed to meet reasonable standards by failing to develop and implement adequate Advice Nurse system components, i.e., 24-hour availability of properly qualified, trained, and competent Pediatric Advice Nurses; by failing to develop and implement adequate protocols, written rules and/or principles; by failing to develop requirements for documentation; by failing to develop and implement a clear chain of command, or provisions for generating and communicating electronic and/or paper continuity of care information.

• Absence of Job Qualifications/Job Description

No evidence of documented telephone triage job qualifications or job descriptions were provided. Reasonably managed medical call centers have specific qualifications for any new hire in a particular subspecialty, e.g., the number of years in nursing; subspecialty nursing; personality fit; communications and decision making skills. If after-hours advice nurses were required to handle both pediatric and adult telephone advice, they should have had experience in both pediatric and adult nursing. Short of that, specialized training in pediatric populations should have been provided.

The HMO should have developed and implemented detailed, concrete, written job qualifications and descriptions for the after-hours advice nurses.

• Inadequate Competency Testing

Apparently, the HMO had some staff review in place. However, there is no documented evidence of any specific criteria to be met by the after-hours Advice Nurses.

The mere determination of whether an Advice Nurse utilized a "SOAP" format is not an adequate measure of communication or decision making competency.  Reasonable competency testing includes expected qualities such as efficiency and proficiency measures; protocol use; and requirements for assessment and documentation to determine if the Advice Nurses do the following:  1) elicit adequate amounts of key information, usually described as some sort of list of key criteria; 2) elicit data within an appropriate time frame (6-10 minutes); and

3) use the nursing process.

No documented evidence has been produced reflecting the development or implementation of adequate competency testing by HMO for its after-hours Advice Nurses.

• Inadequate Training Standards

Manager Ballard testified that the HMO provided basic "on-the-job" training (a new hire working with a more experienced nurse).  There was no formal or specialized training.

Studies have shown that training methods limited to experience and observation are inadequate. Formal training would include different methodologies such as reading, lecture, discussion, workshops and role-play, and standardized examinations followed by close observation and monitoring by a preceptor.

• Failure to Develop Standards for Assessment and Documentation

Manager Ballard testified that HMO had not developed any list of standard key assessment questions for the Advice Nurse. There is no documentation reflecting any standard approach to eliciting basic information.

Mr. Jones testified that he was not questioned in detail about intake, output (urine, bowel movements, vomitus) skin color, turgor, general appearance, sleeping pattern, activity, demeanor, respiration or past medical history.

By the same token, no written policy was produced reflecting what documentation was to be generated by the Advice Nurses for any patient contact, thereby undermining the continuity of care and accountability.

• Inadequate Protocols

The HMO Newborn Protocols produced in this case were inadequate in content, scope and organization.  They failed to meet reasonable standards for protocols in that there were no provisions for general guidelines, axioms, rules or instructions for this vulnerable patient population.

For example, there were no protocols pertaining to dehydration and sepsis, two high-risk conditions frequently present in sick neonates.

Furthermore, the HMO failed to develop any written policies, axioms or principles for its Advice Nurses to follow if no protocol applied.

• Inadequate Provisions for Continuity of Care Documentation

The medical history information on any patient was essentially unavailable to the after-hours Advice Nurses.  No provision was made for "red-flagging" critical historical information electronically. Other than previously generated advice notes, the only historical information available to the after-hours Advice Nurse was what she/he elicited from the patient.

Violations of the Standard of Care by Advice Nurse

• Failure to identify Chris Jones as a high-risk patient.

Chris Jones had many risk factors that should have been recognized: 1) unusual chief complaint symptoms; 2) vulnerable newborn status; 3) communication barrier (patient unable to communicate); 4) parental anxiety; and 5) significant medical history (VSD/PDA and bilateral pneumothorax).

According to Manager Ballard, it was "common practice to ask about past medical history." Yet, the Advice Nurse who spoke with Mr. Jones failed to elicit such information, resulting in her failure to identify Chris Jones as a high-risk patient and thereby violating the standard of care.

• Failure to recognize parental lack of experience as a risk factor.

Mr. and Mrs. Jones were first-time parents. First-time parents present a potential risk due to their inexperience and anxiety. It is reasonable that Advice Nurses know (or be trained, or have rules or protocols) to be extra-vigilant with calls from first-time parents.

• Failure to elicit adequate information.

The symptoms described by Mr. Jones would have prompted a reasonably trained Advice Nurse to direct the parents to obtain an immediate medical assessment and treatment. The fact that Nurse Anne failed to direct the Jones family to seek immediate medical attention and, rather, inappropriately reassured them that their baby was "okay" and made an appointment for an HMO visit the next morning, reflects that the Advice Nurse violated the standard of care by failing to acquire adequate information in order to form the appropriate disposition.

• Failure to appreciate the significance of the information.

Nurse Anne further violated the standard of care by failing to appreciate the significance of the information provided regarding Chris's status. Even in the absence of a significant medical history, a neonate who is not feeding, who has stopped urinating and who has swelling of the hands, feet and eyelids is not "okay."  Furthermore, those signs and symptoms are inconsistent with a healthy newborn that simply has an excess of "baby fat."

• Failure to formulate an appropriate, safe disposition.

In this case, the standard of care required that the Advice Nurse direct the Jones family to a hospital, pediatrician or other competent care provider for immediate assessment and treatment.

Even if the Advice Nurse inappropriately determined that Chris Jones's problems were "borderline" or found that no protocol directly applied, or even if she did not know how to proceed, the standard of care required her to consult with the on-call physician to seek direction and guidance. The cardinal rule of telephone nursing triage is to "err on the side of caution."

In this case, the Advice Nurse violated the standard of care by making an inappropriate and unsafe disposition and, compounding her error, she reassured the parents that their son was "okay," when in fact he was not.

• Failure to document.

No "advice note" or other record of the first interaction with Mr. Jones was produced. The Advice Nurse made an inappropriate and unsafe disposition, namely, the HMO visit for the following morning, thereby confirming Mr. Jones's testimony that an interaction, assessment and disposition had been made.

Nurse Anne violated the standard of care by failing to document her assessment and disposition of Chris Jones.

___________________

Faculty:  Sheila Wheeler RN, MS Since 1995, Ms. Wheeler has served as an expert witness for both plaintiffs and defendants in telephone triage malpractice cases

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