JUNE 199 1, VOL 53. NO 6
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OR Nursing Law Liability for injury resulting from poor patient positioning
P
erioperative nurses are concerned about who is liable when a patient is injured in situations involving shared nurse, anesthesia, and surgeon responsibility. The answer is rarely clear cut, both because of the complexity of the situation that gives rise to injuries in the OR, and because of possible application of differing legal doctrines. The Ohio Supreme Court reviewed a case involving nurse and surgeon responsibility for patient positioning in Becker vs Luke County Memorial Hospital 560 N E 2d 165 (Ohio 1990). A patient was injured when she suffered a seizure during a surgical procedure to correct a deviated nasal septum. She sued her surgeon and the hospital as the employer of the perioperative nurses involved in her care. The 22-year-old patient had a septoplasty under local anesthesia in 1985. She was sedated before surgery. The type and dosage of premedication were not identified in the case report. The circulating nurse secured her to the OR bed with a strap across her hips and groin area. The OR bed was set in a partially upright position, and the patient was conscious when surgery began. The surgeon applied a 10% solution of topical cocaine to her nose. About 20 minutes into the procedure, the patient began thrashing her arms about in an apparent seizure. The nurses had to restrain her, and she lapsed into an unconscious state. Later, in the postanesthesia care unit, she regained consciousness and complained of pain in her left shoulder. Her pain was diagnosed as a dislocated shoulder, which required reduction by an
orthopedic surgeon. The patient sued the original surgeon, the registered nurse who functioned as circulator, the licensed practical nurse who served as instrument nurse, and the hospital. She contended that their negligence caused her to suffer permanent physical injury and emotional trauma. At trial, she alleged that the surgeon inadvertently administered an overdose of cocaine to her. She also said that the physician, the nurses, and the hospital were negligent in not positioning and restraining her arms properly as protection in the event she had a convulsive or toxic reaction to the local anesthetic. Before the case was submitted to the jury, the nurses were dismissed as named defendants. The case report did not state why. The case continued against the surgeon and the hospital. The nurses’ conduct remained an issue in the case because the hospital was their employer. The jury returned a unanimous verdict against the surgeon and the hospital, as employer of the nurses. She was awarded $75,000 in damages.
Res Ipse Loquitor Doctrine
T
he surgeon and the hospital pursued separate appeals. Only the hospital’s appeal was discussed and decided in this case. The court declined to review the appeal and cross-appeals by and against the surgeon. The question before the Ohio Supreme Court was whether the legal doctrine of res ipse lnquitor should be applied to the nurses’ conduct. Ordinarily, the plaintiff in a negligence case 1361
JUNE 1991, VOL 53,NO 6
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One legal doctrine allows the jury to infer negligence without requiring the plaintiff to prove negligence must prove that the actions or inactions of the defendants caused the injury. Res ipse loquitor is a legal doctrine that allows the jury to infer negligence from other circumstances rather than requiring the plaintiff to prove negligence. For the doctrine to apply, the plaintiff does not have to prove that the defendant’s actions or inactions were unreasonable or that they caused the injury. The plaintiff must establish three other special circumstances: 1) that the injury is one that does not ordinarily occur in the absence of negligence; 2) that the patient did not cause or contribute to the injury; and 3) that the “instrumentality” or situation that caused the injury was in the exclusive control of the defendant. These three conditions are difficult to establish and rarely apply to nurse negligence cases except in instances of intraoperative injury. In the Becker case, the hospital argued that res ipse loquitor should not be allowed because the circumstances of the shoulder dislocation were not under the exclusive control of the nurses. On the contrary, the surgeon had testified at the trial that it was entirely within his discretion, as the surgeon, to decide whether the patient’s arms should be restrained during surgery. On cross-examination, he also testified that the patient’s arms usually are restrained for septoplasty procedures by a “lift sheet” technique and he assumed that the nurses had done so in the case of Becker. He admitted that this precaution usually was used at this hospital and the majority of hospitals. He stated that he did not notice that the patient had not been restrained before surgery. He also stated that if a patient objects to his or her arms being restrained by the lift sheet, and the patient is otherwise alert and responsive, he usually requests that the nurses loosen the sheet. He stated the usual practice is to restrain the patient’s arms unless he tells the nurses other-
wise. He also testified that he has the discretion to order removal of the restraint. The surgeon explained that he had been performing this procedure for 30 years and never had a patient react to the cocaine anesthetic in the manner Becker did. He admitted that cocaine may produce toxic reactions such as convulsions and seizures (Id at 169). Another otolaryngologist who testified for the plaintiff as an expert witness said that the hospital deviated from minimal medical standards in failing to provide rules or regulations that would mandate arm restraints when the surgical patient is administered cocaine. He explained that cocaine is known to cause untoward or toxic reactions in some patients and can produce convulsions and seizures of the type experienced by Becker. He further testified that if Becker’s arms had been properly restrained by the lift sheet technique, she probably would not have sustained her injury.
Nurse Liability
D
espite the surgeon’s testimony, the expert made it clear it was the hospital’s (and the employee nurses’) responsibility to ensure that a surgical patient receiving cocaine will not injure himself or herself in the event of a toxic reaction to the local anesthetic. Thus, the court said, the jury could conclude that both the surgeon and the hospital (via the nurses) owed independent duties to the patient and exercised concurrent control over the situation that caused the appellant to be injured (Id at 169). On cross-examination, the expert otolaryngologist admitted that he was not an expert in nursing standards or procedures. Counsel for the hospital posed no objections regarding the competency of the otolaryngologist to testify about reasonable nursing actions (Id at 169). The Ohio Supreme Court concluded that the 1363
JUNE 1991. VOL 53. NO 6
plaintiff established all special circumstances necessary for the application of the res ipse Zoquiror doctrine. It further held that in Ohio, like California, Illinois, New York, and several other states, the doctrine may be applied to multiple defendants (eg, surgeons and nurses) who collectively have exclusive control of the instrumentality, procedure, or occurrence that caused the injury. In coming to its conclusion, the court said that dangers that are apparent to physicians may not be as apparent to nurses. In this case, the evidence indicated that neither nurse was aware of the potential for cocaine to produce convulsions and seizures. In promulgating rules for patient safety, hospital administrators look to guidance from medical staff members as well as nurses. The physician expert testified that the hospital’s failure to protect its surgical patients who receive cocaine from injuring themselves was a deviation from minimal medical standards. He testified that in the hospital where he practiced, patients’ arms are routinely restrained during septoplasty procedures to prevent injury from untoward reactions to cocaine. The surgeon himself testified that it was the normal procedure in the defendant hospital to have the patient’s arms restrained before septoplasty surgery, and indeed he thought Becker had been so restrained before her surgery by the hospital nurses (Id at 170). In light of all the evidence, the Ohio Supreme Court concluded that both the hospital, as employer of the nurses, and the surgeon were liable. The fact that the surgeon said he was responsible did not relieve the nurses of their responsibility for safe positioning of the patient in this situation. Readers should not infer that the results of this case mean that nurses will be liable if the arms of patients in semi-sitting positions who receive cocaine are not restrained. Every situation and every legal case is different. The slightest change in the evidence or how the case is tried can produce a different result. For example, the otolaryngologist who testified as an expert for the plaintiff admitted he was not an expert on nursing standards. If the attorney for the hospital had objected to the
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admission of his testimony that reasonable nurses restrain patients’ arms in these cases, and if the judge had sustained the objection, there may have been insufficient evidence to allow the jury to find the nurses (and therefore the hospital) liable. If there had been other testimony that restraining patients’ arms in such situations is a matter of discretion (eg, based on patient’s level of consciousness and type of anesthesia) and that failure to restrain this patient in light of an immediate preoperative assessment was not unreasonable, the result also may have been different. ELLEN K. MURPHY,RN, JD, CNOR, FAAN UNIVERSITY OF WISCONSIN-MILWAUKEE The above information is intended f o r general information only. Specific situations should be reviewed by legal counsel. I f you have questions on OR nursing law that you would like answered, please send them to Ellen K. M u r p h y , JD. c/o A O R N Journal, 10170 E Mississippi Ave, Denver, CO 80231.
Transplant Patients Cured of Fungal Infections Fluconazole, a new antifungal agent, is effective in treating fungal infections among transplant recipients, according to a news release from Wang Associates Health Communications, New York City. A combination of cyclosporine to prevent organ rejection and amophotericin B therapy for fungal infection may be toxic. Researchers conclude that fluconazole combined with cyclosporine does not present such a problem. In a study of 34 transplant patients, 66% had no symptoms and negative cultures after fluconazole treatment. Another 7% had no symptoms and had a cure-site negative test, but suffered relapses. Another 10% had clinical improvement. Only one patient died. Researchers say that fluconazole should not be used in patients with Aspergillus infection. Additional studies are needed to determine the effectiveness of the medication in this respect. 1365
AORN JOURNAL
OR Nursing Law Liability for injury resulting from poor patient positioning
P
erioperative nurses are concerned about who is liable when a patient is injured in situations involving shared nurse, anesthesia, and surgeon responsibility. The answer is rarely clear cut, both because of the complexity of the situation that gives rise to injuries in the OR, and because of possible application of differing legal doctrines. The Ohio Supreme Court reviewed a case involving nurse and surgeon responsibility for patient positioning in Becker vs Luke County Memorial Hospital 560 N E 2d 165 (Ohio 1990). A patient was injured when she suffered a seizure during a surgical procedure to correct a deviated nasal septum. She sued her surgeon and the hospital as the employer of the perioperative nurses involved in her care. The 22-year-old patient had a septoplasty under local anesthesia in 1985. She was sedated before surgery. The type and dosage of premedication were not identified in the case report. The circulating nurse secured her to the OR bed with a strap across her hips and groin area. The OR bed was set in a partially upright position, and the patient was conscious when surgery began. The surgeon applied a 10% solution of topical cocaine to her nose. About 20 minutes into the procedure, the patient began thrashing her arms about in an apparent seizure. The nurses had to restrain her, and she lapsed into an unconscious state. Later, in the postanesthesia care unit, she regained consciousness and complained of pain in her left shoulder. Her pain was diagnosed as a dislocated shoulder, which required reduction by an
orthopedic surgeon. The patient sued the original surgeon, the registered nurse who functioned as circulator, the licensed practical nurse who served as instrument nurse, and the hospital. She contended that their negligence caused her to suffer permanent physical injury and emotional trauma. At trial, she alleged that the surgeon inadvertently administered an overdose of cocaine to her. She also said that the physician, the nurses, and the hospital were negligent in not positioning and restraining her arms properly as protection in the event she had a convulsive or toxic reaction to the local anesthetic. Before the case was submitted to the jury, the nurses were dismissed as named defendants. The case report did not state why. The case continued against the surgeon and the hospital. The nurses’ conduct remained an issue in the case because the hospital was their employer. The jury returned a unanimous verdict against the surgeon and the hospital, as employer of the nurses. She was awarded $75,000 in damages.
Res Ipse Loquitor Doctrine
T
he surgeon and the hospital pursued separate appeals. Only the hospital’s appeal was discussed and decided in this case. The court declined to review the appeal and cross-appeals by and against the surgeon. The question before the Ohio Supreme Court was whether the legal doctrine of res ipse lnquitor should be applied to the nurses’ conduct. Ordinarily, the plaintiff in a negligence case 1361
JUNE 1991, VOL 53,NO 6
AORN JOURNAL
One legal doctrine allows the jury to infer negligence without requiring the plaintiff to prove negligence must prove that the actions or inactions of the defendants caused the injury. Res ipse loquitor is a legal doctrine that allows the jury to infer negligence from other circumstances rather than requiring the plaintiff to prove negligence. For the doctrine to apply, the plaintiff does not have to prove that the defendant’s actions or inactions were unreasonable or that they caused the injury. The plaintiff must establish three other special circumstances: 1) that the injury is one that does not ordinarily occur in the absence of negligence; 2) that the patient did not cause or contribute to the injury; and 3) that the “instrumentality” or situation that caused the injury was in the exclusive control of the defendant. These three conditions are difficult to establish and rarely apply to nurse negligence cases except in instances of intraoperative injury. In the Becker case, the hospital argued that res ipse loquitor should not be allowed because the circumstances of the shoulder dislocation were not under the exclusive control of the nurses. On the contrary, the surgeon had testified at the trial that it was entirely within his discretion, as the surgeon, to decide whether the patient’s arms should be restrained during surgery. On cross-examination, he also testified that the patient’s arms usually are restrained for septoplasty procedures by a “lift sheet” technique and he assumed that the nurses had done so in the case of Becker. He admitted that this precaution usually was used at this hospital and the majority of hospitals. He stated that he did not notice that the patient had not been restrained before surgery. He also stated that if a patient objects to his or her arms being restrained by the lift sheet, and the patient is otherwise alert and responsive, he usually requests that the nurses loosen the sheet. He stated the usual practice is to restrain the patient’s arms unless he tells the nurses other-
wise. He also testified that he has the discretion to order removal of the restraint. The surgeon explained that he had been performing this procedure for 30 years and never had a patient react to the cocaine anesthetic in the manner Becker did. He admitted that cocaine may produce toxic reactions such as convulsions and seizures (Id at 169). Another otolaryngologist who testified for the plaintiff as an expert witness said that the hospital deviated from minimal medical standards in failing to provide rules or regulations that would mandate arm restraints when the surgical patient is administered cocaine. He explained that cocaine is known to cause untoward or toxic reactions in some patients and can produce convulsions and seizures of the type experienced by Becker. He further testified that if Becker’s arms had been properly restrained by the lift sheet technique, she probably would not have sustained her injury.
Nurse Liability
D
espite the surgeon’s testimony, the expert made it clear it was the hospital’s (and the employee nurses’) responsibility to ensure that a surgical patient receiving cocaine will not injure himself or herself in the event of a toxic reaction to the local anesthetic. Thus, the court said, the jury could conclude that both the surgeon and the hospital (via the nurses) owed independent duties to the patient and exercised concurrent control over the situation that caused the appellant to be injured (Id at 169). On cross-examination, the expert otolaryngologist admitted that he was not an expert in nursing standards or procedures. Counsel for the hospital posed no objections regarding the competency of the otolaryngologist to testify about reasonable nursing actions (Id at 169). The Ohio Supreme Court concluded that the 1363
JUNE 1991. VOL 53. NO 6
plaintiff established all special circumstances necessary for the application of the res ipse Zoquiror doctrine. It further held that in Ohio, like California, Illinois, New York, and several other states, the doctrine may be applied to multiple defendants (eg, surgeons and nurses) who collectively have exclusive control of the instrumentality, procedure, or occurrence that caused the injury. In coming to its conclusion, the court said that dangers that are apparent to physicians may not be as apparent to nurses. In this case, the evidence indicated that neither nurse was aware of the potential for cocaine to produce convulsions and seizures. In promulgating rules for patient safety, hospital administrators look to guidance from medical staff members as well as nurses. The physician expert testified that the hospital’s failure to protect its surgical patients who receive cocaine from injuring themselves was a deviation from minimal medical standards. He testified that in the hospital where he practiced, patients’ arms are routinely restrained during septoplasty procedures to prevent injury from untoward reactions to cocaine. The surgeon himself testified that it was the normal procedure in the defendant hospital to have the patient’s arms restrained before septoplasty surgery, and indeed he thought Becker had been so restrained before her surgery by the hospital nurses (Id at 170). In light of all the evidence, the Ohio Supreme Court concluded that both the hospital, as employer of the nurses, and the surgeon were liable. The fact that the surgeon said he was responsible did not relieve the nurses of their responsibility for safe positioning of the patient in this situation. Readers should not infer that the results of this case mean that nurses will be liable if the arms of patients in semi-sitting positions who receive cocaine are not restrained. Every situation and every legal case is different. The slightest change in the evidence or how the case is tried can produce a different result. For example, the otolaryngologist who testified as an expert for the plaintiff admitted he was not an expert on nursing standards. If the attorney for the hospital had objected to the
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admission of his testimony that reasonable nurses restrain patients’ arms in these cases, and if the judge had sustained the objection, there may have been insufficient evidence to allow the jury to find the nurses (and therefore the hospital) liable. If there had been other testimony that restraining patients’ arms in such situations is a matter of discretion (eg, based on patient’s level of consciousness and type of anesthesia) and that failure to restrain this patient in light of an immediate preoperative assessment was not unreasonable, the result also may have been different. ELLEN K. MURPHY,RN, JD, CNOR, FAAN UNIVERSITY OF WISCONSIN-MILWAUKEE The above information is intended f o r general information only. Specific situations should be reviewed by legal counsel. I f you have questions on OR nursing law that you would like answered, please send them to Ellen K. M u r p h y , JD. c/o A O R N Journal, 10170 E Mississippi Ave, Denver, CO 80231.
Transplant Patients Cured of Fungal Infections Fluconazole, a new antifungal agent, is effective in treating fungal infections among transplant recipients, according to a news release from Wang Associates Health Communications, New York City. A combination of cyclosporine to prevent organ rejection and amophotericin B therapy for fungal infection may be toxic. Researchers conclude that fluconazole combined with cyclosporine does not present such a problem. In a study of 34 transplant patients, 66% had no symptoms and negative cultures after fluconazole treatment. Another 7% had no symptoms and had a cure-site negative test, but suffered relapses. Another 10% had clinical improvement. Only one patient died. Researchers say that fluconazole should not be used in patients with Aspergillus infection. Additional studies are needed to determine the effectiveness of the medication in this respect. 1365
