Consultant’s Corner: Understanding Bariatric Risk—A Legal, Clinical, and Customer Service Focus

| September 18, 2008 | 0 Comments

by James W. Saxton, JD; Maggie M. Finkelstein, JD;
and Susan Gallagher Camden, RN, MSN, PhD

All from Stevens & Lee, Lawyers and Consultants

We recently had a patient who spent seven days in critical care. On the general medical-surgical unit, we had trouble lifting or transferring him from his bed to the wheelchair or gurney. The ergonomist brought in a mechanical lift and sling, but as a medical-surgical nurse, I think this whole process is simply too time consuming and, as a unit, we would like to simply do our best to move him ourselves. What are the trends across the country?
Experts: This is a common reaction to the safe patient handling and movement effort that is sweeping the country. However, keep in mind that patient lifting, transferring, and repositioning tasks are the leading cause of back, neck, and shoulder injuries for employees in the healthcare industry. Back injuries result in the most lost work days.1

In 2005, healthcare workers sustained 37,980 musculoskeletal disorder (MSD) injuries requiring days away from work, which totals 10 percent of all MSD injuries in the labor force.2 This estimate is low, as many injuries go unreported.3 Data from more than 80 studies show that every year, 40 to 50 percent of nurses experience a back injury. At any point in time, 17 percent of nurses are injured.4 Assuming there are 2,852,000 direct care nurses, at any point in time approximately 484,840 direct care nurses are suffering from a back injury.5 The concern is that an estimated 47 percent of hospital nurses report that they have considered leaving patient care because of their jobs’ physical demands.

Therefore, it is not surprising that a number of states have enacted minimal or zero-preventable lift legislation, and the trend is to continue this effort until a federally mandated policy is in place. Interestingly, it is the clinicians who are closest to the bedside who are often most resistant to these efforts. The proper use of lifting and transferring products is a learned skill and, as true with all learned skills, time is required to develop enough confidence to use the equipment in a safe and efficient manner. As such, it is absolutely essential that the facility obtain equipment from a company that understands the product and supports your facility with an adequate amount of training and education to ensure you and your colleagues are confident using the equipment. Further, we encourage you to become involved in the decision-making process in acquiring specialty equipment. In evaluating equipment, look for ease of use, maintenance, training, and delivery times.
Safe and effective equipment, for both patient and caregiver, is a good risk management practice. With continued use and support, products that help to ensure the patient’s safety and your own will become second nature. This is the goal of a comprehensive safe patient handling program.6

How is it possible to hold patients to a higher level of accountability?
Experts: The issue of accountability transcends practice settings. Sixty-six percent of patients take prescribed medications incorrectly or not at all! Cigarette smoking is the leading cause of death in the United States. We know there are issues of accountability not only among patients of size, but all patients. The concern among patients having weight loss surgery (WLS) is that patient participation is likely the most important factor in long-term success. Additionally, from a risk management perspective, patient behavior can contribute to unfortunate outcomes, and when something goes wrong, patients or family members often blame the healthcare provider.

It makes good sense to encourage patients to become partners in their own care and therefore more accountable for their own health.7 A truly patient-centered approach transfers power and authority away from healthcare clinicians and toward patients. The aim of healthcare clinicians is to learn how healthcare treatment and recommendations affect the patients’ lives and not simply their health.8 By more fully understanding power and authority and the role they play in accountability, we are better able to understand ways to adapt our practices to promote accountability among ourselves and our patients. Clinicians should send the message that says, “I have certain responsibilities and obligations to you that I must live up to; however, so do you. If we both accept our respective rights and responsibilities and take care of your health together, we’ll fare better.”

To truly develop a partnership with the patient, there has to be cultural change within the organization. Statements such as, “You are an important part of your healthcare team,” should be displayed. This message should be integrated into marketing materials, brochures, contracts, and patient education information. Every staff member must agree that patient involvement is an essential part of the collective goal. Admittedly, a cultural shift is tough to accomplish. It requires commitment by all members of the WLS team. It means reviewing the way patients communicate with staff members and the way patients receive instructions and education.9

There are certain clinician behaviors that promote intrapersonal relationships and communication, such as addressing the patient with an attitude of openness, acceptance, and lack of judgment or prejudice. This can be particularly challenging for the office team when patients regain weight, are angry or indifferent, or fail to meet certain objectives. It is human nature to judge others, but in WLS practice it is imperative to recognize this tendency and make every attempt to overcome it. Other behaviors that enhance relationships are honesty, reliability, and respect. Successful clinicians are able to balance confidence and humility. Showing interest in the patient and an appreciation for the patient’s time and concerns is essential. A sense of humor when used appropriately can go a long way with certain patients, but this skill is learned and does not necessarily have universal appeal. Patients who come to us with information—accurate or inaccurate—from other sources should be regarded with respect and appreciated for their willingness to learn more about their physical or emotional situation. If the information is inaccurate, the clinician best serves the patient by clarifying misinformation in a professional non-judgmental way.10

Being sensitive to your patient population’s needs, concerns, and desires also strengthens the physician-patient relationship.  Sensitivity training for the entire staff is essential.

Also, find ways to integrate office documents into learning tools that encourage accountability. For example, consider the opportunity to turn your history form into a liability risk reduction tool. Patient self-history forms often fail to capture the patient’s entire pertinent health history—information that surgeons rely on in making diagnoses or offering intervention. Patient contracts serve the same goal by prompting communication, clarifying rights and responsibilities, and encouraging mutually responsive decision making. Although each one of these is a wonderful first step in patient involvement and accountability, there are a number of ways to create a true culture of involvement. Examine your practice to find ways to incorporate patient accountability into your everyday activities.

We use reminder cards, phone calls, at-risk letters, and more to try to encourage patients to continue lifelong follow-up. What are some other ideas to encourage patients to stay involved with our program?
Experts:  Each one of the practices you describe is important. A sound WLS program should use every effort to encourage lifelong follow-up, but from a practical perspective, patients will only stay engaged if they believe there is something in it for them—that is human nature. Some patients will participate in lifelong follow-up because their nature is to follow rules; others may find this boring or simply disregard its value after reaching their target weight goal. As clinicians interested in the lifelong success of the WLS patient, we understand that as the patient continues in the journey, life changes occur and often the patient will need emotional or physical support to make those adaptations.

Your question is valid, not only from a regulatory point of view, but also from the humanistic point of view, wherein we have a genuine desire to see the patient succeed.

A number of practices have instituted creative strategies to keep patients engaged. Dr. Terry Simpson of Phoenix, Arizona has a very animated website with a number of learning tools that address patient needs across time. The website is exciting to look at and navigate—what is in it for the patient? It serves as a safe resource to remind the patient that information exists to help them on their journey. Dr. Christopher Joyce of Joliet, Illinois, offers a quarterly clothing exchange. What better and more practical way to keep patients interested? What is in it for his patients? New clothes and the tangible idea of moving from one clothing size to another. Other ideas might include a book club—one that focuses on WLS books, or inspirational publications, or regularly scheduled cooking classes and a recipe exchange. When developing your own creative strategy, keep in mind that your goal is to keep in touch not only with the patient who has successfully lost weight, but those who are struggling as well.

1.    Nelson A. Patient Care and Ergonomics Resource Guide. Patient Safety Center of Inquiry. Tampa: Veterans’ Health Administration and Department of Defense; 2003.
2.    Bureau of Labor Statistics: Department of Labor. Nonfatal Occupational Injuries and Illnesses Requiring Days Away from Work: 2005. November 2006.
3.    Nelson A, Matz M, Chen F, et al. Development and evaluation of a multifaceted ergonomics program to prevent injuries associated with patient handling tasks. Intern J Nursing Studies. 2006;43(6):14–18.
4.    Hignett S. Work-related back pain in nurses. J Adv Nurs. 1996:23(6):21–27.
5.    Peter D. Hart Research Associates, Safe Patient Handling: A Report. March 2006. Accessed on August 1, 2008 at:
6.    Fisher K, Ingram S. Dispelling the myths of lifts and transfers. Rehab and Comm Care Med. 2008;17(2)16–18.
7.    Saxton JW. The Satisfied Patient: A Guide to Preventing Malpractice Claims by Providing Excellent Customer Service Skills. Marblehead, (MA): HCPro;2007.
8.    Russell S, Daly J, Hughes E, Hoog CO. Nurses and difficult patients: negotiating non-compliance. J Adv Nurs. 2003;43(3):221-224.
9.    Glasser W. Choice Theory: A New Psychology of Personal Freedom. New York: Harper Collins Publishers; 1998.
10.    Alfaro-LeFevre R. Applying Nursing Process: A Tool for Critical Thinking. Philadelphia: Lippincott, Wilkins & Wilkins; 2005.

Category: Consultant’s Corner, Past Articles

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