The intent of this chapter is to assist perianesthesia nurses with legal and safety issues related to their practice. The definition section and the anatomy of a malpractice claim hopefully will assist in expanding the knowledge base for nurses. The aim is not legal advice, but for the perianesthesia nurse to develop a beneficial understanding of the legal process. . By understanding the legal process, the perianesthesia nurse can influence the direction of many health care issues locally, statewide, and nationally.
Within the perianesthesia unit’s environment lie a variety of unique legal and patient safety issues. Legal issues and patient safety cannot be separated. As such, patient safety must be a vital concern for nurses, patients, and administrators.
Murray et al.1 state that, “Patient safety is the responsibility of all health care workers, from the highest executive to the bedside nurse. Patient experiences are influenced not only by the nurse at the bedside but the overall workings of the organization, thus effective leadership throughout all levels, especially from clinical nurses at the bedside, is essential in engaging staff to provide high quality care for the best possible patient outcomes.”
The perianesthesia nurse, as a licensed professional, is subject to a set of standards that must be followed to practice nursing. These standards are those that a reasonable and prudent nurse would follow in the state of his or her practice. If the action of a perianesthesia nurse is not reasonable and it causes injury to the patient, a malpractice lawsuit may result. The aim of this chapter is to improve the legal knowledge of perianesthesia nurses and provide guidance on some potential legal concerns.
The first section of this chapter includes the ethical values that underlie the formation of laws. This discussion is followed by common legal terminology, along with definitions and examples. Some of the current approaches to patient safety are examined. Next, the anatomy of a malpractice claim is explained to give the perianesthesia nurse a better understanding of the litigation process. Finally, the chapter presents some examples of malpractice issues involving nurses practicing in the perianesthesia area, including examples of how some cases transpired.
Advance DirectiveA written document recognized by state law that provides directions for care of a person in the event the person is unable to make decisions on treatment choices. Advance directives include do-not-resuscitate orders, living wills, and durable power of attorney for health care.
Adverse EventAny injury caused by medical care. Examples include postoperative surgical site infection or a drug reaction. Having an adverse event does not imply a medical error.
AdvocacyActing on behalf of the patient in an effort to protect that person’s rights to make his or her own decisions. Nurses are expected to act as the patient advocate.
AssaultInvolves a threat that causes the patient to be in fear of a physical injury. For example, saying, “if you do not stay still, I will put restraints on you” to a patient could lead to the charge of an assault.
BatteryInvolves unauthorized touching of a patient’s body. For example, if a patient has a do-not-resuscitate order in place but cardiopulmonary resuscitation is performed on the patient, everyone involved could be charged with battery.
Civil LawA type of law concerned with relationships among persons and the protection of a person’s rights. Violation of this type of law may cause harm to an individual or property, but no grave threat to society exists.
ConfidentialityA special relationship that exists between the patient and the perianesthesia nurse in which the information discussed is not shared with a third party not directly involved in the patient’s care. Disclosure of confidential information exposes the perianesthesia nurse to liability for invasion of the patient’s privacy and breach of confidentiality malpractice claims.
ConsentA voluntary act on the part of the patient to grant someone a type of care. Implied consent is not expressly written or spoken but implied when circumstances exist that lead a reasonable person to believe that consent had been given, such as when the failure to act would result in injury (cardiopulmonary resuscitation needed). Expressed consent is either spoken or written and typically involves both.
Contract LawA law concerned with enforcement of an agreement among private individuals.
Contributory NegligenceUsed in medical malpractice when it is alleged that the patient’s actions or inactions contributed to the injury.
Criminal LawA type of law concerned with relationships between individuals and governments and with acts that threaten society and its order; a crime is an offense against society that violates a law and is defined as a misdemeanor (less serious in nature) or a felony (serious in nature).
DamagesThe sum of money a court or jury awards as compensation for a tort action. Damages can be broken down into general damages, which are given for intangible wrongs such as pain and suffering, disfigurement, interference with ordinary enjoyment of life, and loss of consortium (marital services) that are inherent in the injury itself; special damages, which are the patient’s out-of-pocket expenses such as medical care, lost wages, and rehabilitation costs; and punitive damages, which are the damages sought as punishment for those whose conduct goes beyond normal malpractice.
DefamationRefers to damage caused to someone’s reputation. If the damaging information is written, the defamation is called libel; if it is spoken, it is called slander.
DefendantA person who is accused of wrongdoing in a malpractice claim.
Defensive ChartingExtensive documentation that is accurate and factual in the medical record.
DepositionOut-of-court oral testimony given under oath before a court reporter. The deposition can involve expert witnesses, fact witnesses, defendants, or plaintiffs and can be used to impeach (find inconsistencies or untruths) testimony in trials.
Disruptive, Unprofessional BehaviorBehavior that shows disrespect for others such as verbal abuse. This behavior impedes the safe delivery of patient care. This behavior is not acceptable and needs to be reported to administrators.
Durable Power of Attorney for Health CareThis advance directive specifies who makes health care decisions for the patient if the patient is incompetent. The patient’s condition does not need to be terminal for this advance directive to be in effect. The durable power of attorney for health care must have been signed when the patient was competent, and it applies only to the health care decisions.
EthicsThe distinction between right and wrong based on knowledge, not just opinions. Ethics refers to what someone should do or the desired behavior.
Expert WitnessA person with specific knowledge, skills, and experience regarding a specific area such as perianesthesia nursing who testifies to the ultimate issue: What was the duty or was the duty violated? Did the violation cause injury? What could the defendant have done to prevent the injury? Did malpractice occur?
Health Insurance Portability and Accountability Act (HIPAA)This law was enacted to ensure privacy rights and describes how personal health information can be used and how a patient can obtain access to the information.
Human FactorSafety problems that arise because of the interaction between people, technology, and work environments.
Impaired NurseA nurse who is unable to function effectively because of some type of substance abuse such as alcohol, prescription drugs, and illegal drugs. If you know of an impaired nurse, you should report this to your supervisor. Many state boards of nursing have programs in place to assist impaired nurses. Impaired nurses are a threat to patient safety.
Informed ConsentThe patient’s approval (or that of the patient’s legal representative) to a specific care service; informed consent is a legal document. Informed consent can be waived for urgent medical or surgical intervention as long as this exception is so stated in an institutional policy. Types of consents are admission agreement, blood transfusion consent, surgical consent, research consent, and special consent such as for the use of restraints, client photographs, organ donation, or autopsy. Proceeding without consent can lead to charges of battery or assault. A patient has a right to refuse informed consent. If this occurs, make sure to document it. Nurses only witness the signature.
Intentional TortConsequences of actions that can be reasonably foreseen, violate duty, or cause injury; in this case, an expert witness is not necessary to bring a case. The actions are closely related to criminal acts in that they involve more intent to do wrong. Types of intentional torts include assault, battery, and false imprisonment.
InterrogatoryThe process of discovery of the facts regarding a case through a set of written questions exchanged through the attorneys that represent the parties involved in the case.
Invasion of PrivacyThis can entail the disclosure of personal details of a patient, accessing a patient’s medical records when not involved in the patient’s care, or using a picture of a patient without his or her consent.
JurisdictionThe court’s authority to accept or decide cases, which can be based on location or subject matter of the case.
LawPerianesthesia nurses are governed by civil and criminal law when they are in the role as providers of services, employees of institutions, and private citizens. The types of laws are contract, civil, criminal, and tort. Law mandates behavior, and it is written by experts and those in authority (e.g., legislators).
LibelLibel involves writing something that ruins a patient’s reputation.
Living WillAn advance directive that states what the patient wants if he or she becomes incompetent and terminal. The living will must have been written when the patient was competent.
MalpracticeAddresses a professional standard of care. The elements of negligence are applied to the determination of malpractice. An expert witness is typically used to establish standard of care and prove the violation of duty resulted in injury under the professional standard of care.
MinorsA patient who is under the legal age (usually 18 years) as defined by state statute and may not give legal consent; consent must be obtained by a parent or the legal guardian.
Near MissAn event or a situation that did not lead to a patient injury. An example may be a nurse is about to administer a wrong medication to a patient but realizes the error and does not give the medication. Near misses need to be reported and investigated because they can be used to identify systemic issues.
NegligenceThis tort is the failure to provide care that a reasonable person ordinarily would provide in a similar circumstance. The elements that must be established to prove negligence are (1) an established relationship, (2) the duty established by profession, and (3) a violation of that duty that results in injury.
Nurse Practice ActA series of statutes that have been enacted by every state legislature to regulate the practice of nursing. In essence, the statutes define the scope of the nursing practice and distinguish between nursing practice and medical practice; every professional nurse must review and understand the provisions of the nurse practice act in the state or province in which the nurse works.
Patient’s Bill of RightsA document of client rights that reflects acknowledgment of the client’s right to participate in one’s own health care with an emphasis on client autonomy and several laws and standards that pertain to the client’s rights.
PlaintiffThe person who files the lawsuit and seeks damages for a perceived wrongdoing, usually the patient or the patient’s family.
Post hoc, ergo propter hoc“After this, therefore because of this”; the theory of the injury has been bypassed as the injury occurred and that by itself indicates a failure to do what was reasonable and prudent.
Quasi-Intentional TortThis tort involves more intent than malpractice and includes invasion of privacy and defamation.
Res ipsa loquitur“The thing speaks for itself.” This allows post hoc reasoning and can be invoked in a medical malpractice case if the case meets the following four criteria or tests: (1) the injury is considered to occur only during failure to exercise ordinary care, skill, or diligence; (2) the injurious actions are under the exclusive control of the practitioner; (3) the patient makes no contribution to the injury; and (4) the reasons for the injury are more attributable to the nurse than to the patient. Some perianesthesia case examples of this term would be a burn from improperly used equipment or a foreign body left in a patient from a procedure.
SlanderStating something untrue that ruins the patient’s reputation.
Standards of CareStandards based on evidence as to what is reasonable and prudent behavior for a perianesthesia nurse (health care professional). These standards describe minimal requirements of an acceptable level of care and are usually outlined by the state or province nurse practice acts. Standards are also established through nursing organizations such as the American Society of PeriAnesthesia Nurses (ASPAN) and the American Nurses Association (ANA).
StatuteDocumented rules for living in a state (state law) or the United States (federal law) that are passed by state legislatures and by Congress.
Statute of LimitationThe time limit that patients have to bring a claim. If the patient fails to meet the statute of limitations, then the case cannot proceed. States differ on the time periods and when the statute starts. The statute can start at the time of the injury, when the patient discovers the injury, or when the treatment for the injury stopped.
Tort LawA civil wrong (not criminal), other than a breach in contract, in which the law allows an injured person to seek damages from the person who caused the injury.
Vicarious LiabilityThis term indicates that one party is responsible for the actions of another party. This type of liability often occurs with nurses working in a hospital.
Ethical values serve as the basis for many of the laws that affect nurses and their practice. These values include beneficence, nonmaleficence, autonomy, justice, fidelity, and life.2 Each of these values is discussed briefly here along with some of the laws associated with them. See Chapter 8 for a more in-depth discussion of ethics in perianesthesia nursing.
•Beneficence means to “do good.” Beneficence reflects the care given by nurses and other health care providers. Health care providers are mandated to provide care for patients. Failure to provide this care often leads to claims of malpractice.2
•Nonmaleficence refers to “do no harm.” Health care providers may be charged with violating this value through false imprisonment, battery, or assault. Slander and invasion of privacy are other examples.2
•Autonomy can also be thought of as freedom. Autonomy includes clinical issues of consent, advance directives, and transplant issues.2
•Justice entails fairness. Justice includes the enforcement of antidiscrimination and labor laws.2
•Fidelity is accountability on the part of the nurse and promotes truthfulness. Consent issues and confidentiality are incorporated under this value.2
•Life entails both the beginning and end of life. Ethics issues involving birth include abortion, stem cell research, and artificial insemination. Issues such as do not resuscitate, assisted suicide, and quality of life encase some of the values at the end of life.2
Conscientious objection is an ethical, complex, current health care topic that needs to be discussed. Although it has both organizational and individual factors,3 only individual conscientious objection will be explored. Nurses encounter patients in many different aspects of their lives where they must make decisions. Those patient decisions may cause nurses to have situations that conflict with their moral standards. In these cases, nurses can implement conscientious objections that have been historically common in health care, such as refusal to participate in an abortion procedure. However, recent attention has focused on examples such as removal of feeding tubes from a nonterminal patient, palliative sedation, and stem cell research.4,5 Nurses can also raise conscientious objections if the interventions go against the patient’s autonomy and expressed desires (e.g., a patient who does not want lifesaving blood for religious reasons).5 In those situations, nurses have the right to refuse to participate in the care because doing so can lead to moral distress. Moral distress can lead to job dissatisfaction and burnout.4,5
However, several important points needs be considered. The patient’s dignity and autonomy need to be maintained. Refusal cannot be based on self-interest such as bias (homosexuality or drug/alcohol abuse) or convenience.4,5 Additionally, once treatment of a patient has begun, the nurse cannot leave the patient until another nurse assumes care. If a nurse has concerns with a possible moral conflict, then the nurse should voice these concerns to managers as soon as possible. Managers should offer support to nurses to assure that conflicts are resolved effectively.4,5
Medical mistakes often go undetected because health care professionals have too narrowly focused on individual error as the cause of those mistakes. As Lucian Leape notes:
Ironically, that unique nature of medical injury, or more precisely our reaction to it, has been the major barrier to reducing medical errors and injury. Shame, guilt, and fear prevent many physicians from discussing their mistakes, being honest with patients, and being able to look beyond their individual errors to correct underlying systems failures. They can only try harder. For many lawyers, a sense of just cause, in some cases moral outrage, similarly blinds them to alternatives to tort litigation. Both are misplaced. And both have been manifestly unsuccessful in preventing medical injuries. We have created a monster.6
One of the main changes in the approach to patient safety has been a move from the “culture of blame” to a culture of safety. In the past when errors were made, the emphasis was on the person making the error, focusing on an individual’s inattention, forgetfulness, or carelessness. However, evidence supports the theory that the error is most likely related to problems within the system. One of the main premises of the system approach is that human beings are fallible and errors are expected. The goal of decreasing medical error is to build defenses into the system. If an error does occur, the emphasis is on why and how the system failed.7 Administrators should place attention on the conditions in which individuals work, using tasks and teams with a goal to create better systems.
Facilities that focus on the person fail to further investigate possible causes in the error. A person-focus includes active failures such as health care procedural violations and lapses. An active failure occurs at the point of contact and is often referred to as an error at the sharp end. These sharp-end errors are among the first noticed and often have bad outcomes.7
Latent conditions, those conditions that lie dormant for a long time, refer to the less obvious failures in the system such as design problems that lead to patient safety issues. These latent conditions are the result of decisions and actions by administrators—those who write policies and design the systems. Reason8 stated that there are two kinds of adverse effects arising from latent conditions: error-provoking conditions within the local workplace (e.g., poor staffing, fatigue) and long-lasting holes or weaknesses in the defenses (e.g., poor procedures and policies, design and construction deficiencies). Latent conditions can be discovered and corrected before a patient error, leading to a proactive stance. Organizations that strive for this approach are referred to as high-reliability organizations (HROs).9
HROs are facilities consistent in a focus on patient safety and avoidance of errors. The origins of HROs can be traced to the nuclear power and aviation industries. HROs easily identify weak links in patient safety and then strongly and promptly respond to these weaknesses, thus avoiding potentially catastrophic errors. Every health care facility differs in its culture, systems issues, and challenges; therefore, how health care facilities develop into an HRO will differ. HROs change their cultures to focus on reducing system failures and have mechanisms in place to respond if a system failure occurs.9
HROs function within complex environments that place them at risk for error; for example, hospitals have interdependence among various disciplines from nursing to physicians to support staffs. In addition, there are multiple subcultures within the hospital setting. This interdependence continues with the coordination needed to accomplish patient care efficiently and in a safe manner. This coordination also leads to extreme hierarchical differentiation in which roles are defined and differentiated, and decision making often falls to the most knowledgeable in the group. HROs also have high degrees of accountability, and in the health care industry that accountability is primarily to the patient. HROs also require good feedback among its teams and the ability to work under time constraints.9
The Agency for Healthcare Research and Quality stresses several important concepts with HROs: resilience, deference to expertise, reluctance to simplify, sensitivity to operations, and preoccupation with failure. Being resilient indicates that the HRO has leaders and staff members who know how to respond to system failure. For an HRO to succeed, listening to the frontline staff who understand how the processes work is essential for managers. It is human nature to simplify processes; however, a complex understanding of systemic failures is needed in an HRO. An awareness of the current state of the processes and systems aids in the prevention of future errors and notes risks. HROs also take near misses seriously, using them as a means to further improve systems.9
Many state laws that govern legal claims for medical malpractice specify that the actions or inactions of nurses and doctors may be the basis for a medical malpractice lawsuit (Box 7.1).10,11 The legal formula used in most medical malpractice cases is that a nurse or other health care practitioner must have and use the knowledge, skill, and care ordinarily possessed and used by members of the profession in good standing, and a doctor or nurse is liable if he or she did not have and use them.10 Four elements must be present to prove malpractice: duty, breach of duty, causation, and damages.12