According to recent studies, most physicians and other health care providers (HCPs) use smartphones at work for a variety of purposes.  These include accessing electronic health records, communicating with patients and other HCPs, managing their schedules, viewing live monitoring data from remote locations, and consulting with apps downloaded to provide drug, diagnostic, and treatment information…in addition to using them for personal communication.  As a result, boundaries between professional and personal cell phone use have become blurred; and cell phone data has increasingly become requested and used as evidence in malpractice cases.

There are many ways in which cell phone information has been used in health care litigation:

  1. To show that an HCP was distracted by cell phone use, thereby causing harm to a patient. Consider the evidentiary value of finding that an anesthesiologist, who did not respond to low oxygen levels for several minutes, used his cell phone over 50 times during the operation to text and surf the internet.  Or a nurse who failed to timely administer an important treatment because she was busy “taking care of other patients,” but whose cell phone records showed her to be texting and viewing social media.  Even HCPs using their phones for appropriate purposes may allegedly be distracted by nonacute clinical concerns, app notifications, and “multi-tasking” while caring for patients, leading to errors caused by distraction.
  2. To create a timeline of events. Timeliness of communications with patients and other HCPs is a significant issue in health care malpractice litigation.  Many communications are conducted by telephone call or text message.  Cell phone records are frequently requested to fill in the blanks left by electronic medical records and to create a more complete timeline.
  3. In at least one case, texting with a patient outside of regular work hours on a personal cell phone was alleged to have created an expectation that the doctor was available to the patient 24 hours per day.  When the patient texted his physician during off-hours with complaints signaling an emergency condition and the physician did not see or respond to the text for hours, the patient alleged it caused a delay in treatment and adverse outcome.
  4. While HIPAA allows HCPs to transfer information to and from patients via email and text message, patient privacy and security issues have been identified related to cell phone use. Some HCPs transfer sensitive data via text messages or store it unprotected on their cell phones.  This has increased the risk of security breaches if certain preventative measures are not followed.
  5. There is even concern regarding the use of cell phones as a cause of hospital-acquired infections. In an article titled, “How Dirty is Your Phone?—An Association Between Restroom Behavior and Cell Phone Surface Contamination,” The Joint Commission surveyed health professional students and found that they utilize their phones while in the restroom, but do not regularly clean them. The phone surface contamination levels of these students exceeded established health care benchmarks by 3-to-17 fold.  While no litigated cases were found to date, it is not beyond the realm of possibility to see such allegations in the future.

Smartphones have proven to be invaluable tools in current health care practice.  It is believed they decrease litigation by placing information at the provider’s fingertips and by increasing communication with patients and among members of the health care team.  In addition, cell phone data can be very helpful to the HCP in litigation if it shows prompt and reasonable action on the HCP’s part not reflected in the medical record.

HCPs must remain cognizant, however, that anything they do on a cell phone related to patient care or while on duty is potentially admissible in the event of a malpractice case.  It is advisable to adopt cell phone practices that will minimize the risk of data that can be harmful to your case.  These may include:

  1. Limiting personal use of the cell phone while working;
  2. Limiting multi-tasking with your cell phone during patient care;
  3. Set clear boundaries with patients regarding communications (you should not be your patient’s first call in an emergency);
  4. Take reasonable steps to protect the privacy and security of data stored or transmitted on your cell phone. The U.S. Department of Health and Human Services Office for Civil Rights and Office of the National Coordinator for Health Information Technology has posted tips on ways to safeguard PHI when using mobile devices such as laptops, tablets, and smart phones.  These can be accessed at https://www.healthit.gov/resource/your-mobile-device-and-health-information-privacy-and-security
  5. And for heaven’s sake…clean your cell phone from time to time!