Health & Hospitals Corp. (Jacobi Medical Ctr.) v. Goldfayn OATH Index No. 2100/12 (Nov. 21, 2012)

Transcription

1 Health & Hospitals Corp. (Jacobi Medical Ctr.) v. Goldfayn OATH Index No. 2100/12 (Nov. 21, 2012) Associate ultrasound technician guilty of failing to follow proper procedures in performing an echocardiogram on a patient, resulting in the patient having to return to the hospital to retake the exam days later. ALJ recommends 30-day suspension. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HEALTH AND HOSPITALS CORPORATION (JACOBI MEDICAL CENTER) Petitioner - against - SHARON GOLDFAYN Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner Jacobi Medical Center ( Jacobi ), a member of the New York City Health and Hospitals Corporation ( HHC ), pursuant to section 7:5 of the Personnel Rules and Regulations of the Corporation. Respondent Sharon Goldfayn is charged with failing to follow proper procedure in the performance of an echocardiogram, in violation of the hospital s policies and procedures. Respondent denies committing misconduct. The hearing on the charges was conducted before me on September 6, At trial, petitioner presented the testimony of two hospital employees. Respondent testified on her own behalf and presented a witness. After close of the record, the tribunal re-opened the record on respondent s motion to consider documents not obtained at the time of the hearing. I find that respondent committed misconduct and recommend a 30-day suspension.

2 -2- ANALYSIS The charges, in essence, allege that on March 5, 2012, respondent, an associate ultrasound technician, failed to properly process an echocardiogram she performed on a patient, resulting in the patient having to return to the hospital days later to retake the test. Specifically, the charges allege that respondent (i) failed to use two patient identifiers in processing the test, in violation of the Joint Commission National Patient Safety Goals and hospital policy, (ii) failed to select a patient s name (noted herein as A.R. ) from the computer system work list in accordance with policy, (iii) failed to timely notify her supervisor of her error, and (iv) that respondent s failures caused the patient to have to be rescheduled so the hospital could perform another echocardiogram (ALJ Ex. 1). The Joint Commission, which grants accreditation to hospitals, as it has to Jacobi, has established a number of goals, including patient safety goals, by which hospitals are reviewed and evaluated (Tr. 13, 15, 45). Consistent with its goal that hospitals always make sure that any procedure [it performs] is performed on the right person (Pet. Ex. 1 at 11), the Joint Commission requires a pre-procedure verification process that ensures that all relevant documents and related information or equipment are... [c]orrectly identified, labeled, and matched to the patient s identifiers (Pet. Ex. 1 at 11). Missing information or discrepancies are [to be] addressed before starting the procedure (Pet. Ex. 1 at 11). In particular, hospitals are required to use at least two unique identifiers (for example, name and medical record number) for each patient (Tr. 13, 17, 23). In a set of Joint Commission goals distributed to staff at the annual in-service training on February 27, 2012, goal 1 improve the accuracy of patient identification requires that hospital staff always use two unique identifiers when providing care, treatment, and services (Pet. Ex. 2; Tr. 61). The General Guidelines set forth in the hospital s Policy and Procedure Refresher Course, also presented at the February 27 in-service training, which was attended by respondent (Tr. 26, 29; Pet. Ex. 5), instructs ultrasound technicians to [c]orrectly identify the patient using two patient identifiers (Pet. Ex. 4 at 3). The technician must indicate in the log if problems are encountered while attempting to transfer the study and to inform Ms. Patrice or another supervisor of any problems encountered when transferring images (Pet. Ex. 4 at 3; Tr. 41).

3 -3- An echocardiogram is a sonogram that takes images of the human heart. The images enable cardiologists to study the heart s structure and function and, thus, to diagnose disease and prescribe treatment; they can reveal life-threatening conditions requiring immediate treatment (Tr. 12, 76). The hospital s Policy and Procedure on Echocardiography Transthoracic (effective March 1, 1998) provides step-by-step instructions for processing echocardiograms: 1. Locate on/off switch and turn the machine on. 2. To record study by the Analog method: Label video cassette... and indicate number for easy identification of cassette. Record patient s name and medical record number on cassette and then insert into VCR. 3. To record study by the digital method: Connect data cable from data box to LAN Port on Echo machine. 4. Accession patient in computer and confirm accession number. 5. On Echo machine press refresh to view current patient worklist. 6. Select patient from worklist and press enter. 7. If patient does not appear on worklist enter information manually.... Pet. Ex. 3 at 8. It is not disputed that respondent failed to follow this procedure. Nicole Patrice, respondent s direct supervisor, is an associate respiratory therapist and an author of the above policy. She also oversees the day-to-day operation of the diagnostic suite and supervises the respiratory and non-invasive cardiology departments. She has instructed the ultrasound technicians to seek her or another supervisor if they encounter any problems performing an echocardiogram (Tr. 12). Around 4:30 p.m. on March 5, 2012, she noticed patient A.R. s record highlighted in yellow in the data management system, which indicated a problem with the patient s procedure (Tr , 33). Upon review, Ms. Patrice discovered that respondent was the technician responsible for A.R. s echocardiogram (Tr. 34; Pet. Ex. 6). Ms. Patrice testified that respondent failed to complete steps 5, 6 and 7, above (Tr. 11, 18, 72). According to Ms. Patrice, a typical echocardiogram produces 60 images, and step 6 (selecting the patient name from the worklist) prompts the system to imprint the patient s name

4 -4- and medical record number on each image taken during the examination (Tr. 25, 90-91, 110). If the patient is correctly selected from the worklist (called accessioning the order ), then the images will be transferred to the data management system so they can be read by a physician (Tr , 110). If the steps are not followed, the patient identifiers will not imprint on each image. As she scrolled through the images, Ms. Patrice found only one image with an annotation on it that identified the patient s name and medical record number (Tr ; Pet. Ex. 8). Annotations are typically made by a technician who wants to make a note of special emphasis to the physician reviewing the images (Tr. 41). Annotations are not an appropriate way to mark patient identifiers on the images. When Ms. Patrice asked respondent about the missing identifiers, respondent acknowledged it was her mistake and apologized for it (Tr. 36). But by the time Ms. Patrice discovered the error, the patient, whose echocardiogram had been performed around 9:30 that morning, had already left the hospital (Tr. 41). She stated that, had respondent asked for help at the time she discovered her error, the patient could have been asked to submit to another echo at that time, without having to return to the hospital on another occasion (Tr. 49). 1 Respondent testified that when Ms. Patrice approached her that afternoon and asked why the patient s name was highlighted in the system, she told her that she and Ms. Hua had corrected the mistake and transferred the images to Centricity, and she had brought her report to cardiology to be read by a physician (Tr ). This was not confirmed by Ms. Patrice. Ms. Patrice sent an transmission to her supervisor after speaking with respondent that day (Tr. 35). In it, she explained that she found respondent s error and confronted her about it, and respondent admitted her mistake and was remorseful about it (Pet. Ex. 6). She also reported that respondent explained that, after discovering she had not input the identifiers, she made a notation on one page of the study to identify the patient (Pet. Ex. 6). The makes no mention of respondent s claim that she corrected her mistake later that day by inserting the identifiers and transferring the images to Centricity, as she testified. According to the 1 Although it was not disputed that the patient returned to the hospital for a second echocardiogram, the date the patient returned and when the results were read by a cardiologist was disputed and irreconcilable on this record. Petitioner offered the QuadraMed audit trail which contains archived information about the patient s treatment (Pet. Ex. 9). It indicates that on March 5 the echo was in progress and partial ; the echo is marked complete on March 8; it is marked corrected on March 12 (Pet. Ex. 9). The witnesses offered divergent views of what these notations meant, however (Tr , 80-82, 104).

5 -5- timestamp, 5:54 p.m., respondent spoke to Ms. Patrice only a couple hours after the time respondent said she made the correction. Dr. Siegel, a cardiologist at Jacobi, testified that he orders and reviews echocardiograms every day; cardiologists view the images on a specialized computer screen utilized by the Centricity system and then prepare a report of their findings (Tr. 75, 77). A cardiologist expects to see the patient s identifying information on each image of the echo, and will not prepare a report in the absence of this protocol. Dr. Siegel said he would not prepare a report for an echocardiogram, like the one here, that contained only a single image identifying the patient (as respondent did in Petitioner s Exhibit 8), because it is non-standard practice (Tr. 78). As for patient A.R., he said the patient had to be called and scheduled for another echocardiogram (Tr. 79). In this case, A.R. s echocardiogram was abnormal and treatment was delayed due to respondent s error, but the patient s condition did not require immediate surgery. He stated that calling a patient in for a second visit is not only alarming to the patient but it also burdens them as to time, travel, and any childcare issues they may have (Tr. 80). Moreover, the hospital pays a price because it may only bill the patient s insurance for one test. Xia Hua, chief echocardiogram technician, testified as respondent s witness. She said respondent told her she had failed to enter the identifiers in the echo study for one of her patients and asked her to help transfer the images so they could be read by a cardiologist (Tr. 86, 92). Sometime around 3:00 or 4:00 p.m., the two transferred a group of images one by one (Tr. 87, 92, 94). Hua said she checked the patient s identification as respondent made the correction to the system (Tr. 88). The next day Ms. Hua told Ms. Patrice, who is her supervisor also, that she helped respondent transfer the images (Tr. 89). Respondent testified that she has worked six and a half years as an associate ultrasound technician at Jacobi; she performs seven or eight echocardiograms per day (Tr. 96). She admitted that she failed to select the patient A.R. s name from the worklist when she administered the echocardiogram on the morning of March 5 (Tr ). She said the patient distracted her by asking a question. She realized the patient identifiers were not on the images three minutes after releasing the patient, so she re-entered the system and inserted the identifiers

6 -6- on the final page of the study (Tr. 99, 115; Pet. Ex. 8). She said this is the first time she had made such a mistake. Respondent stated that later that day after finishing her other patients, she and her coworker Xia Hua used a procedure she had been taught in training to create a corrected study of A.R. s images so that the name and medical record number appeared on each image; then they sent the images one by one... to [a] new study and transfer to the Centricity system to be read by the doctors (Tr. 110, 112, ). She denied inserting the identifiers on each image manually, claiming that the machine somehow corrected itself and inserted them automatically (Tr. 114). She claimed that she reported all of this to Ms. Patrice. Although respondent said Ms. Hua transferred the images because she herself was too busy with patients (Tr. 114), she denied that Ms. Hua transferred the images because she had difficulty doing it (Tr. 116). Respondent denied that the original erroneous images ever made it into the Centricity system used by the doctors, even though Ms. Patrice saw the images in Centricity (Tr ). Describing Centricity as if it was comprised of two separate parts (an intermediate data management part and a final part that reached the doctor s station), respondent argued that the original study taken that morning was viewed by Ms. Patrice in the data management system but never made it to the doctor s station because the identifiers were not properly inserted (Tr ). When questioned about this, Ms. Patrice said the data management system she reviewed, which highlighted the patient s name in yellow to indicate a problem, was the very same Centricity system accessed by the cardiologists to read the echo images (Tr ). When respondent s counsel asked her whether the original echo study was held within this intermediate system... before it gets transferred to the doctors? (Tr ), Ms. Patrice stated that the study she reviewed was in the Centricity system (Tr. 62). Asked whether the doctors had access to the erroneous study in Centricity on March 5, she answered affirmatively, indicating that they see the same thing. They see exactly what I see (Tr ). Although respondent argued that Ms. Patrice did not understand the system, I found Ms. Patrice not only credentialed and professional but credible in her demeanor. On the other hand, there was no basis to believe that respondent had superior knowledge of the system and no

7 -7- support for respondent s claim that the original echo she had taken on the morning of March 5, which did not contain the identifiers, had somehow been suspended from view in an intermediate system until she was able to correct it later that day. Respondent attributed a degree of fault for her mistake to the echocardiogram machine itself, which was an older model that, unlike newer machines, did not stop the study from proceeding when the technician failed to insert the identifiers (Tr. 101, 104). The fact that the newer machines provide a failsafe mechanism that would have prevented respondent s error does not mitigate her failure to comply with so basic a procedure, however. Respondent admitted it has always been protocol to enter two identifiers in the system when conducting an echocardiogram (Tr. 108). Motion to Re-open the Record After the record was closed in this case but before the report and recommendation was issued, respondent moved to re-open the record for the admission of what counsel asserts, without the benefit of a fact affidavit, are additional screen images of patient A.R. s echocardiogram (Affirmation of Todd Rubinstein, dated Oct. 5, 2012 ( Rubinstein Affirm. )). The seven proffered images (dated March 5, 2012, and time stamped just before noon that day) contain two identifiers on each image. In a motion to re-open the record filed before issuance of a report and recommendation, the moving party must show that (i) the evidence to be added to the record might reasonably be expected to alter the outcome of the case, as to either the merits or as to the penalty to be imposed, and (ii) that grant of the motion will not prejudice the other party to the case. See, e.g., Police Dep t v. Jackson, OATH Index Nos. 1121/07 & 1481/07, mem. dec. at 5 (Mar. 22, 2007); Taxi and Limousine Comm n v. Nawaz, OATH Index No. 1433/97, mem. dec. (Aug. 22, 1997) (motion granted where the proffered evidence was unavailable or unknown at the time of trial; thus, the moving party could not be said to have been negligent in preparing its case for trial); Transit Auth. v. O Connell, OATH Index No. 1076/91, mem. dec. at 16 (Nov. 8, 1991). The motion is addressed to the discretion of the administrative law judge. Id. Though respondent testified that she corrected all the echo images to include the required identifiers and forwarded them to the cardiology staff, she produced no evidence in support of the claim. Counsel complained in closing that, despite a demand, the hospital never produced

8 -8- the corrected images (Tr ) but offered no proof that a formal discovery demand was ever served on petitioner (Rubinstein Affirm. 7) and made no motion seeking to compel disclosure. What exactly respondent demanded in discovery was never made clear on this record. Petitioner denied refusing to produce documents and argued in closing that respondent had never indicated that corrected images existed. Petitioner indicated the hospital produced the only study that it had for patient A.R. (Tr. 137). There were no others. Respondent now offers seven new images time-stamped just before noon on March 5. To explain the delay in offering them, respondent s post-trial motion states that counsel had difficulty understanding his client who is not a native [English] speaker and, after trial, his client gave him the seven pages now proffered (Rubinstein Affirm. 8). Although petitioner does not contest the authenticity of the images, their origin (how, when and by whom they were obtained) is largely unexplained by respondent s motion papers. The motion makes two essential claims about the seven pages: that the documents are clearly exculpatory (Rubinstein Affirm. 12), and, had they been produced before trial, the testimony of Dr. Siegel would have been irrelevant (Rubinstein Affirm. 9). Petitioner opposes the motion but asserts no prejudice. See Affirmation of Ellen Grossman, dated October 18, 2012 ( Grossman Affirm. ). In particular, petitioner opposes reopening the record to take additional testimony, a request not contained in respondent s motion. Petitioner does not challenge the authenticity of the proffered documents and does not oppose their being entered in evidence (Grossman Affirm. 20). 2 I therefore grant the motion to re-open the record to enter the documents in evidence, and they are entered as Respondent s Exhibit A. I will therefore consider their significance to the charges alleged and any penalty to be assessed in this case. Rather than an entire echocardiogram study, respondent has produced seven images. The seven do not establish a defense to the misconduct charged here. First, I will address respondent s claim that the documents are exculpatory. I have described the charges alleged against respondent above, and they state that she is charged with 2 Because petitioner does not object to the tribunal s consideration of the images, I will not review the standard or determine whether there is sufficient proof of unavailability to justify re-opening the record.

9 -9- failing to follow the Joint Commission s requirement of inserting multiple identifiers before performing the echocardiogram for patient A.R. (ALJ Ex. 1). Respondent does not dispute the truth of this allegation; her defense (or basis for mitigation) is that she later corrected the error. Even if she succeeds in proving that the new documents show that she corrected her error at the end of the day, as she testified, 3 all four specifications against her may still be sustained. That is, the evidence would still prove that she failed to insert the required identifiers in the echocardiogram she conducted that morning (specification 1); that she failed to select the patient s name from the worklist in accordance with the hospital s Policy and Procedure (specification 2); that she failed to timely notify her supervisor of the problem (specification 3); and her failures required the patient to return to the hospital to take the exam again (specification 4). It is significant that the first three specifications are not even disputed by respondent as a matter of fact. As to the fourth, she testified she was never told the patient came in for another study (Tr. 116), and she believes that calling the patient back for another echo was unnecessary because she corrected the study. In the absence of any proof of an accepted medical protocol that would have allowed her to re-process the echo images without supervisory authority, I have rejected respondent s claim that her actions constituted a valid correction of her error. There was no corroboration that any such training existed. Nor was there any evidence that her actions should have obviated the need for a second visit by the patient, because there was no indication on this record that the cardiology staff would have reviewed those images or considered respondent s actions appropriate. Indeed, respondent s decision not to notify her supervisor immediately after discovering the error or ever before she utilized this method of correction suggests it would not have won Ms. Patrice s approval. Thus, even considering the newly acquired Respondent s Exhibit A, I find respondent guilty of misconduct on all four specifications. Although proof that respondent attempted to correct her mistake may offer mitigation, it is not exculpatory, nor does it change the fact that rule violations were committed. 3 It should be noted that the images themselves are not an entire study and are insufficient basis for establishing the existence of an entire study correctly administered by respondent. Moreover, they are time-stamped hours before respondent testified that she made the correction, which is unexplained by respondent. Thus, it is difficult to draw any clear conclusion about what they represent.

10 -10- Second, I find no merit to respondent s claim that Dr. Siegel s testimony would have been irrelevant had the proffered evidence been entered into the trial record. Dr. Siegel testified that he would not write a report of an echocardiogram study that did not contain dual identifiers on each image because it was non-standard practice (Tr. 78). Although the seven pages are some support for respondent s testimony that she sought to correct her mistake, it is not proof that she did correct it in a manner acceptable to the hospital or the cardiology staff. Had respondent believed so, then Dr. Siegel and petitioner s other witnesses should have been questioned about this correction on cross examination. Contrary to the claim in respondent s papers (Rubinstein Affirm. 9), petitioner s witnesses were available for cross examination and counsel was aware that his client would be testifying that she had corrected the images. Yet, he failed to ask Dr. Siegel his opinion of her actions. If true that the cardiology staff had received a corrected study, as respondent testified, the fact that they had the patient return to the hospital to repeat the study is an indication they found it deficient. FINDING AND CONCLUSION Ultrasound technician is guilty of misconduct by failing to insert standard identifiers required by the Joint Commission into patient s echocardiogram and by failing to timely notify her supervisor of it, which resulted in the patient having to return to the hospital to retake the diagnostic test several days later. RECOMMENDATION Upon making the above findings, I obtained and reviewed an abstract of respondent s personnel record as maintained by the corporation. She commenced her employment with the hospital on January 9, In February 2011, respondent received a 30-day suspension for inappropriate behavior and violating reporting requirements. In September 2011, she received a 60-day suspension for failing to follow the Joint Commission goals and hospital policy on echocardiography, poor work performance and delaying patient care. Although respondent testified that she had received commendations from the hospital, her reference was to letters of appreciation concerning her care of a patient in 2010 (Tr , ). Petitioner denies respondent has received any hospital awards. Respondent s performance evaluations evince a history of marginal performance. For the seven-month period ending March 31, 2011,

11 -11- respondent received an unsatisfactory rating. For the prior seven-month period, her rating was satisfactory. For the preceding annual evaluation, through January 8, 2010, her rating was needs improvement. Earlier evaluations, which began in January 2006, rated her performance as either satisfactory or needs improvement. Here, respondent is guilty of failing to properly administer an echocardiogram in accordance with hospital rules. She further failed to report this to a supervisor until late in the day, after the patient had gone home, causing the patient to have to return to have the test conducted on another day. Petitioner seeks respondent s termination for this misconduct, citing a record of formal discipline that includes 30-day and 60-day suspensions. Of course, it is critical to patient welfare that physicians issue findings only upon images that are properly identified when the doctor knows for a fact that each image belongs to that patient (Tr. 136, 139). It is respondent s duty as an ultrasound technician to ensure the accuracy of patient information contained in the diagnostic examinations she conducts. Although respondent recognized and attempted to correct her error, her decision to improvise the rules and to delay reporting it to her supervisor only exacerbated the problem. Her response to this proceeding was to avoid responsibility by blaming the echocardiogram machine and by accusing her supervisor of lacking knowledge of a system that she oversees. Her conduct demonstrates poor judgment and a lack of professionalism. Moreover, her history of discipline suggests she has not learned from past failures. Nevertheless, despite her prior penalties, I find termination excessive for this single instance of misconduct where her error caused no harm to the patient beyond inconvenience. A 30-day suspension will take into account two important facts: the misconduct largely reflects error rather than calculated wrongdoing, and her prior record, under principles of progressive discipline, demands a heftier penalty. See Health & Hospitals Corp. (Queens County Hospital Ctr.) v. Toval, Hosp. Determination (Apr. 28, 2011), rejecting, OATH Index No. 500/11 (Dec. 23, 2010) (15-day suspension imposed where technician s error resulted in delayed delivery of patient care); Dep t of Correction v. Keyes-Alston, OATH Index No. 468/05 at 7 (Feb. 1, 2005) (30-day suspension recommended for relatively minor incident of insubordination, despite

12 -12- officer s prior record which included a 60-day suspension for being out of residence while on sick leave). I so recommend. November 21, 2012 SUBMITTED TO: WILLIAM P. WALSH Executive Director APPEARANCES: ELLEN GROSSMAN, ESQ. Attorney for Petitioner TODD RUBINSTEIN, ESQ Attorney for Respondent Tynia D. Richard Administrative Law Judge