“Lending” an employee can create complications

Q Can you clarify the legal liability a hospital has if
the courier from the facility picking up specimens at a
non-hospital-owned physician practice is asked to process and package
specimens prior to transporting them to the hospital lab for testing?
What is the liability if the courier (also a registered phlebotomist) is
asked to collect a specimen on a patient at the physician’s office?

A A general principle of tort law is that the
individual or institution performing the act shoulders the
responsibility for the proper execution of that act. This means the
hospital lab, by “lending” an employee to a physician office to process
and package specimens, assumes at least part of the risk that the
process will not be done properly, and — to some extent — shares
responsibility for any resulting damages if a mistake is made.

Determining the potential legal consequences from a
mistake first requires an assessment of what is at stake. In the case of
processing, a specimen can be mislabeled — meaning the results could go
to the wrong person. The patient with the problem may suffer a delay in
diagnosis, and the patient who receives the wrong results may be
needlessly distressed. Both can be the basis for a lawsuit if it can be
proved that the mistake was the result of negligence.

As for performing venipuncture, the liability is the
same as if it were being done in the hospital. The most serious
persistent complication of venipuncture is nerve damage, which can
result from direct trauma or from nerve compression as a result of
hematoma at the site of the draw. Either can result in persistent pain,
numbness, or tingling in the affected area. Syncope, convulsions, and,
very rarely, cardiac arhythmias can also occur. Minor complications such
as local bruising are relatively common (10% to 12%). Serious
complications occur with much less frequency (1% to 3%) but can present
significant liability if not properly managed.

The phlebotomist must be prepared to deal with
potential complications, and the drawing area must be one that minimizes
the risk of secondary injury, such as trauma from a fall resulting from
syncope. The phlebotomist must also be sufficiently familiar with the
layout of the area to access any supplies or medical equipment needed to
quickly and easily manage complications.

Generally, when one employer “lends” an employee to another, both employers share the potential burden of liability.

All of these are risks that the hospital assumes in
the normal course of business when venipuncture is performed in its own
laboratory or outreach centers. Any further liability of this nature is
additional only in quantity, not kind, of risk. Perhaps the greater risk
to the hospital — and the employee — comes when the employee assumes the
responsibility for performing these tasks without the knowledge and
consent of the hospital.

Generally, when one employer “lends” an employee to
another, both employers share the potential burden of liability. Should
an employee, however, “lend” himself without knowledge and permission of
the primary employer, the employee may find himself shouldering the risk
of liability alone.

The arrangement you describe, however, may raise a
serious issue that is different than the usual liability for
venipuncture. The Fraud and Abuse (Stark) regulations limit the ways in
which institutions that refer patients to one another can interact.
These regulations are a complex set of rules intended to prevent
hospitals and other institutions from securing a referral base by
financial enticements to refer. The rules have been interpreted to cover
everything from the provision of lab supplies (and, by extension,
services) to how many staff parties a hospital can give a year for
physicians.

In this situation, an important question is whether
assisting with packaging, processing, and venipuncture constitutes a
financial enticement to referral. Such determinations are fact specific:
Is this a formal and continuing arrangement or one that happens only
occasionally? Are particular physicians more likely to be the recipients
of this largesse? Are those physicians the source of substantial
referrals?

Determining if this arrangement is proper under these
regulations is outside the scope of this column. These inquiries are
best answered by the hospital attorney, who will have the most recent
rulings and all the important facts at hand. If the answer to the Stark
inquiry is that the hospital cannot legitimately provide such services,
upfront communication with physician offices and hospital staff is
essential; because if policy is violated, fines incurred under the Stark
rules are substantial.