By Dennis Kogan, CEO, Caresyntax
LinkedIn: Dennis Kogan
LinkedIn: Caresyntax
The leveraging of vast amounts of surgical data may hold the key to improving both individual surgeon performance and the quality and efficiency of the entire perioperative care continuum. The use of video data could benefit surgeons greatly – but common misconceptions about legal risks associated with the recording surgeries hinder progress toward more widespread adoption.
A series of articles published last year in General Surgery News details the history of minimally invasive procedures. They showed the value of transparency in the OR for a procedure known as laparoscopic cholecystectomy, which allowed all stakeholders to assist during this procedure. It allowed for quick learning from errors and complications. And it encouraged the sharing of optimal surgical technique during and after procedures, all from a quick review of surgical videos.
With the help of those video data, one of the most common surgical procedures in the United States was able to be implemented quickly in one health system. It is now a standard worldwide practice.
The focus of this video review was to ensure the best technique, avoid complications, and provide patients with a safe and successful outcome. Such an outcome is a win-win-win for major stakeholders: It’s a win for the patient, who is now healthier. It’s a win for the provider, who is now more efficient and spends less on follow-up treatment. And of course, these two outcomes are a win for the payor. Because of the laparoscopic cholecystectomy, no common bile duct injuries were observed in the first 2,000 cases.
Misconceptions of the legal risk of capturing surgical video
The transparency of healthcare data, including video data, is critical for learning and improving as an individual surgeon and the healthcare system. Unfortunately, this is still not common in healthcare. Many clinicians want to share their data and record and share videos, but are commonly told the practice is prohibited. No law expressly forbids this; instead, they are told videos can’t be recorded for fear they could be used as evidence in a surgical complication lawsuit.
Because of this self-imposed limitation in the U.S., any ability to obtain data from millions of surgical procedures (and all associated learning and patient benefit) is missing. This lack of transparency and availability of video data hinders progress in both patient safety improvement and the value of care.
Data collected by a PSO is federally protected
Due to these common misconceptions, the US Government passed the Patient Safety and Quality Improvement Act of 2005 to improve the use of data for patient safety and improvement. The law facilitates a new type of organization called a Patient Safety Organization (PSO). PSOs work with clinicians to apply their skills and expertise in using healthcare data for patient safety and quality improvement.
Because recording surgical video is a part of normal healthcare operations whose purpose is quality improvement, it is exempt from HIPAA, and does not need to be submitted to an Institutional Review Board (IRB). The data collected within a PSO is deemed a “patient safety work product,” and in fact is federally protected from discovery in legal proceedings except potentially in a criminal investigation. Any video recording should be eligible for inclusion as a patient safety work product under a PSO.
The benefits of working with a PSO-listed surgical data platform
Even in 2023, many health systems still do not provide enough opportunities to capture and learn from video data associated with most surgical procedures. However, specialized PSOs in surgery are now emerging, dedicated to bringing data-driven surgery to healthcare. They work with providers and their organizations to collect, aggregate, and analyze patient data to identify improvement opportunities. Such opportunities are either cultural, process/operational, or clinical. As a result, improvements can be designed and executed to detect, prevent, and/or correct events proactively.
That said, an urgent need exists for clear guidelines and protocols around the use of video technology in surgery to protect the interests of patients and clinicians. And privacy concerns must be addressed to ensure the confidentiality of patient information. PSOs may serve as a great resource in these vital areas, allowing for more open, transparent discussions about any patient issues related to quality, privacy, and safety.
With expertise in data science applied to healthcare and the protections enabled by their PSO designation, hospitals and clinicians may have the opportunity to work together to make healthcare data transparent and valuable. The protections of a PSO would allow stakeholders to work together in a just culture and to use data to improve outcomes – as opposed to operating under irrational fears.