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Legal Speak


Published January 24, 2008 10:25 AM by Tony DeWitt

Many years ago, when I was starting out as a respiratory therapist, I was working a 3-11 shift in the ICU.  One of my favorite surgeons, Dr. Jomain, who never minced words with staff, came to the bedside of my patient and began taking the pulse of the patient.  I smiled and, when he completed the process, said “you could find the pulse on the cardiac monitor.”


Dr. Jomain said “that’s what’s wrong with you young guys.  You are so proud of your machines and monitors that you wind up monitoring the monitors.  There is no substitute for placing your hand on a patient and taking your measure of them.”


Although I agree with what Dr. Jomain said, and tried to emulate him in that regard as I took care of patients, I think even Dr. Jomain would be impressed today by the vast changes in technology that have made patient care safer and better.  I also think I am no longer a “young guy.”


Negligence is defined as acting outside the standard of care, and the standard of care is defined as doing that which a reasonably prudent practitioner would do under the same or similar circumstances. 


One of the aspects of negligence that is often overlooked is when it becomes unreasonable to rely on “old technology.” With computers getting progressively more powerful and microcircuitry making monitoring devices smaller and smaller, it sometimes is difficult to separate out what is merely new and smaller from what is new and improved. Buying new pulse oximeters is a luxury few facilities can afford unless there is a valid clinical reason to do so.


Pulse oximeters are important in nursing facilities because they are a non-invasive method of determining oxygenation. Though never a substitute for a full arterial blood gas, a pulse oximetry reading at least demonstrates that the patient is sufficiently oxygenated. It is quick, non-invasive, not particularly costly to the patient or the home, and gives nurses some legal cover if a patient later suffers an anoxia-related injury. But most homes that have pulse oximeters have five or ten year old devices that are nowhere near the current state of the art. Still, they are by and large accurate for well patients, but probably not for patients who are very sick. Because of changes in the state of the art in physiologic monitoring, facilities may wish to revisit their monitors.


Recently, changes in the technology associated with pulse oximetry has given hospitals and nursing facilities a strong rationale for buying improved pulse oximeters. There is new monitoring equipment that can not only detect oxyhemoglobin saturation values like current pulse oximeters, it can detect carboxyhemoglobin and methemeglobin levels noninvasively. Add to these abilities the fact that the devices are designed not to be fooled by patient motion and can read accurately during periods of low perfusion, and upgrading to this kind of pulse oximetry comes very close to a standard of care.


Although not recommending a particular vendor, clinicians are encouraged to look for oximeters when upgrading equipment, that are FDA certified to read through motion and low perfusion.  A number of well known vendors make these devices.


A series of studies done by a number of different organizations have all shown that these new generation devices tend to work better and more reliably than devices that do not contain low perfusion technology.  Sadly, the same articles essentially provide plaintiffs lawyers with an absolutely great avenue of attack when nursing centers attempt to show that the patient was well-oxygenated. If a device has not been certified to read through motion and detect accurately through low perfusion, some studies show it 30% to 40% more likely to offer false negatives and sometimes as much as 50% more likely to offer false positives.  In essence, the older monitors either miss events altogether, or they’re always crying “wolf.”  


If a clinician hasn’t read these studies, and attempts to testify that the monitoring equipment was accurate, he or she is subject to cross examination with the plethora of studies showing that conventional monitoring equipment is flawed. Either way, the patient suffers and the clinicians willingness to believe the outdated equipment also falters.


If it has been ten or more years since you’ve improved your facilities pulse oximeters, it is a good idea to go back out and look for equipment that is motion-accurate and low-perfusion-accurate. Clinicians should test, evaluate, and verify the accuracy of any monitor they seek to use on a patient, and should check with peers for their recommendations.


The author does not endorse or imply an endorsement of any particular device or manufacturer and suggests that independent test results from independent laboratories be evaluated before purchasing any monitoring equipment.
posted by Tony DeWitt


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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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