OSHA, the Needle, and the Fine

Like most dermatologists, Dr Blood uses a variety of hypodermic needles. After use, they are routinely discarded in the appropriate medical waste container. One night, after sending his staff home, Blood uses a needle to remove a cyst from an old college buddy. Because of the late hour, the physician does not clean up his medical waste and needles, confident that his medical assistant will do so appropriately in the morning.

David J. Goldberg, MD, JD, is director of Skin Laser and Surgery Specialists of New York and New Jersey; past director of Mohs and Laser Research, Icahn School of Medicine at Mount Sinai; and adjunct professor of law at Fordham University School of Law, New York, New York.

The next day, the assistant, not knowing what transpired the night before, assumes that the materials can simply be thrown in a waste receptacle. She lifts the pile, gets stuck by a needle, and ultimately develops a serious hepatitis B infection.

The medical assistant leaves Blood’s employ and files a complaint with the Occupational Safety and Health Administration (OSHA). She contends that her now former employer negligently left the exposed needle in a dangerous location, which led to her injuries. Blood contends that had she picked up the drape, she would have known to be careful with the “sharps” and avoided infection. Who is correct?

When Congress passed the OSHA Act of 1970, the goal was to secure safe conditions for all workers. OSHA covers every workplace that has at least 1 employee and engages in a business that affects interstate commerce. Interstate commerce encompasses anything that crosses state lines, whether a person, goods, or services, which means that physicians’ offices are affected. In addition, OSHA specifically includes physicians.

OSHA requires that a covered employer comply with specific occupational safety and health standards applicable to the workplace. Employers have a duty to provide a safe working environment.

After a claim is filed, an OSHA inspector will conduct on on-site investigation and may then notify the employer via certified mail if a penalty will be imposed. The employer has 15 days to respond to the charges. If they fail to do so during that time, the citation is a final order and not subject to review by any court or agency.

Penalties are in line with the severity of the act. A willful violation that causes an employee’s death incurs a criminal fine of no more than $10,000, imprisonment of up to 6 months, or both. Willful or repeated violations may incur civil penalties of up to $70,000 but not less than $5000 for each violation, no matter if malice was an issue. Intent alone is sufficient to justify this penalty. A second violation results in a fine of $20,000, imprisonment of up to 1 year, or both.

Both serious and nonserious violations may incur civil penalties of up to $7000 each. Employers who do not correct violations may be fined up to $7000 for each day that the violation or failure to correct it persists. OSHA developed its bloodborne pathogens standard to protect health care and other workers in any environment, including medical offices, where there is possible deadly exposure to HIV, hepatitis, and other diseases that are spread through the bloodstream. This standard requires employee training and use of personal protective equipment appropriate to the task performed, as well as proper labeling. Any office that disposes of medical waste, ranging from blood samples to used adhesive bandages, must have a written exposure control plan that clearly states necessary precautions to protect employees.

Under OSHA regulations, the use of infection control precautions in the health care setting is required and must follow the same universal blood and body fluid precautions for infection control recommended by the Centers for Disease Control and Prevention for hospitals. These regulations include the appropriate disposal of contaminated needles and sharp instruments through the use of a mechanical device or puncture-resistant, labeled, or color-coded leakproof containers.

Blood cannot pass the burden of his negligence to his medical assistant. He is in violation of OSHA regulations. He will be fined.