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Intraoperative injury does not always mean liability
AORN JOURNAL
J U L Y 1990, VOL. 52. NO I
OR Nursing Law Intraoperative injury does not always mean liability
I
njury alone may prompt a patient to file a suit. That suit will not go to trial, much less result in liability, unless the health care provider’s failure to use reasonable care caused the injury. This is true no matter how severe or unfortunate the injury. Even severe injury cases that go to trial will not result in liability unless the judge or jury finds that the defendant failed to do what a reasonable and prudent professional would have done. The following three cases illustrate how even serious complications from actions performed in the OR, such as infected heart valves, perforated iliac arteries, and blindness, may never get to trial. If they do, they may not result in liability for the defendant.
Postoperative Infection
I
n a 1989 Iowa case, a cardiac surgery patient was unable to get his case to trial despite his postoperative staphylococcal infection (Donovan vs Stale, 445 NW 2d 763 [Iowa 19891). The patient underwent surgery on March 13, 1984, to replace a defective heart valve. He was discharged on March 30 and readmitted the next day. He was discharged again on April 13 but was readmitted five days later. He sued, claiming that the negligence of hospital personnel caused his staphylococcal infection, which in turn caused his replacement valve to fail. In his petition, the plaintiff alleged that a break in sterile procedure resulted in the staphylococcal infection, as well as misdiagnosis and delay of treatment. The hospital submitted an affidavit from
its expert witness that the patient’s problems were caused by a weakening of the replacement valve due to a staphylococcal infection. In addition, the expert witness stated that there was “no indication that there was any break in surgical or sterile technique which led t o prosthetic valve endocarditis.” The patient did not offer expert testimony to refute this statement or provide any evidence that there was a break in technique. This case was not allowed to proceed to trial because there were no facts in dispute to require a jury’s decision.
Perforated Vessels
I
n a 1990 Texas case, the patient’s iliac artery and vein were perforated during a lumbar laminectomy (Wendenburg vs Williams, 784 SW 2d 705 [Tex App 19901). The defendant surgeon did not deny perforating the vessels but contended that the injury did not result from his negligence. The plaintiff did not introduce evidence to prove the defendant’s negligence. The plaintiff argued that the surgeon’s negligence was so obvious that there was no need for such evidence. The trial court judge agreed and allowed the jury to find the defendant surgeon negligent and that his negligence caused the injury. The surgeon appealed. The appellate court agreed with the surgeon. Before proceeding to a discussion of this case, the Texas court restated the relevant Texas law. This law requires a physician to present expert testimony that a violation of the proper medical standard caused the patient’s injury. If the plaintiff 19
fails to produce such expert testimony, he or she cannot win the case unless the nature of the alleged malpractice and injuries are plainly within the common knowledge of the laypersons of the jury. The Texas court agreed that in some cases (such as operating on the incorrect body part or leaving instruments and sponges in the body) negligence can be inferred from the nature of the action itself. It held, however, that perforation of the iliac vessels during lumbar laminectomy is not such a case, and that negligence must be proven. The plaintiff argued that in perforating the iliac vessels, the surgeon had operated on the wrong body part. The defendant’s expert witness testified that the iliac artery and vein touched the anterior ligament of the disk when the surgeon was operating. This, the court said, is not the scenario found in previous cases that allowed negligence to be inferred for operating on the wrong body part. That would require the doctor to intentionally operate on the wrong body part under the mistaken impression that he was operating on the correct part. This did not happen in this case. Second, the plaintiff argued, the jury should be allowed to find negligence without expert evidence because the injury was caused by the surgeon’s use of a mechanical instrument, and juries know how mechanical instruments work as a matter of common knowledge. The court also rejected this assertion. It noted this operation was conducted with many specialized tools, including a microscope. To reach the disk, the surgeon had to cut through several layers of tissue, and he ultimately removed the disk with a pituitary rongeur through a %-inch wide aperture. Testimony at trial revealed that extensive training is required to use this instrument properly. The court concluded that proper use of a pituitary rongeur is not within the common knowledge of the layperson. As a result, jurors could not determine if the surgeon had used it negligently without expert evidence to inform them. Ironically, the surgeon himself provided the only evidence at trial that he had been negligent. After completing the surgery, he had spoken with the patient’s husband and told the husband about the possible injury to the patient’s iliac vessels. At trial, the husband testified about the content of
that conversation. He made the statement, ‘th& is a rare occurrence.’ He never-[he only cme he could remember it ever happening [in] was some movie aclor who died from [his procedure. He said he also wondered what kind of idiot would do such a thing-such a mistake. Now he knew, (Id at 708). The court concluded that the surgeon’s statements to the husband were “some evidence” that he negligently perforated the patient’s blood vessels. If this evidence had not been in the record, the appellate court would have reversed the jury’s decision of negligence. It would have declared that the surgeon was not negligent because the plaintiff had produced no evidence to prove his case. Because there was some evidence of negligence, however, the appellate court sent the case back to the trial court for a new trial.
Blindness
A
1988 Missouri case illustrates that even when a procedure does not go well in the OR and blindness results, the defendants may not be liable. Liability can be found only if the reason the procedure did not go smoothly was because the defendants were acting unreasonably and not in accordance with the standard of care. Their action also must have caused the blindness (Zimmer vs US, 702 F Supp 757 [ED Mo 19881). In this case, two residents performed cataract surgery on the plaintiffs right eye on July 2, 1985. The operating surgeon was a second-year resident. A third-year resident assisted her. The operating microscope they used had an inoperative coaxial light; both side lights were operative. The surgery began with the patient on his back. The surgeon attempted to use a cystotome needle to remove the lens nucleus. She made two or three unsuccessful attempts before the third-year resident attempted the procedure from the assistant’s position, also unsuccessfully. The thirdyear resident then assumed the position of the operating surgeon. Fluid filled the eye such that neither resident could see the lens nucleus. It had become displaced and slipped to the back of the eye. The case report, written by the Federal court
A O R N JOURNAL
judge who decided the case, stated that displacement of the lens nucleus is a common complication of cataract surgery and was not caused by the surgeons’ substandard care. The surgeon then had the patient turn on his side and used an indirect scope to locate the lens in the back of the eye. The third-year resident asked another resident to call the supervising faculty ophthalmologist for advice. The chief of ophthalmology at the hospital where the surgery was performed was out of town. The supervising ophthalmologist advised turning the patient on his side and abdomen and attempting to remove the displaced nucleus by impaling it on a needle. While the patient was on his side, the thirdyear resident tried to impale the lens nucleus two or three times, unsuccessfully. She then turned the patient on his abdomen and attempted to impale the lens nucleus two or three times, also unsuccessfully. She examined his retina and did not observe any tear. She decided to keep the patient on his abdomen overnight because the lens nucleus might fall through. She advised the patient that he might be transferred to another hospital to have surgery on the back part of his eye. The lens did not fall through, and the residents’ supervising faculty ophthalmologist saw the patient the next day. He advised transfer for a vitrectom y. At the start of the vitrectomy, the surgeon observed the lens nucleus on the retina. He did not see any damage to the retina. He testified that if there had been damage, he would have seen it. Thus, there was no retinal tear at the start of the vitrectomy. During the procedure, however, the retina did tear. Attempted surgical repairs were unsuccessful. Eventually, the patient elected not to undergo additional surgery. He is now effectively blind in this eye, with light perception only. The judge who heard this case against the hospital and residents involved in the first case stated the applicable Missouri law as follows. To recover a medical malpractice action against a physician, the plaintiff must establish that an act or omission of the physician failed to meet the requisite standard of medical care, 22
JIJ1.Y 1990, VOL. S2. NO I
the act or omission was performed negligently, and a causal connection exists between the act or omission and the injury sustained. He specifically stated that no presumption of negligence arises merely because of an adverse result. Physicians are entitled to a wide range of discretion in exercising their medical judgment. They are not negligent unless their conduct clearly deviates from that generally recognized by the profession as correct. With this in mind, the judge decided that the residents and supervising faculty member were not negligent. His reasoning was as follows. The fact that the coaxial light on the microscope was inoperative had no factual connection to the loss of vision. The displacement of the lens nucleus was not caused by substandard medical care by the residents. Rather, the displacement was “a mere adverse result.” The evidence established that the retinal tear did not occur at the hands of the residents. Rather, the tear occurred during the vitrectomy. No evidence at trial indicated that the procedures used by the residents after the patient’s lens became displaced had any causal connection to the retinal tear. The tear occurred at the second hospital during the vitrectomy, which was performed by other surgeons. Thus, even if the attempts made by the residents were below the requisite standard of medical care, there is no causal connection between those actions and the injury sustained. Accordingly, the fact that they used those procedures was not malpractice and did not result in the patient’s loss of vision. None of these cases involves any allegation of perioperative nurse negligence. They are cited here only as recent examples in which defendant surgeons were not found liable even though things went wrong and serious injuries occurred. Neither an untoward result nor a less than smooth surgical episode are sufficient to result in liability. ELLENK. MURPHY, RN, JD, CNOR, FAAN UNIVERSITY OF WISCONSIN-MILWAUKEE
If you have quesrions on OR nursing law rhar you would like answered, please send them 10 Ellen K . Murphy, JD, c/o AORN Journal, 10170 E Mississippi A ve, Denver, CO 8023 1.
J U L Y 1990, VOL. 52. NO I
OR Nursing Law Intraoperative injury does not always mean liability
I
njury alone may prompt a patient to file a suit. That suit will not go to trial, much less result in liability, unless the health care provider’s failure to use reasonable care caused the injury. This is true no matter how severe or unfortunate the injury. Even severe injury cases that go to trial will not result in liability unless the judge or jury finds that the defendant failed to do what a reasonable and prudent professional would have done. The following three cases illustrate how even serious complications from actions performed in the OR, such as infected heart valves, perforated iliac arteries, and blindness, may never get to trial. If they do, they may not result in liability for the defendant.
Postoperative Infection
I
n a 1989 Iowa case, a cardiac surgery patient was unable to get his case to trial despite his postoperative staphylococcal infection (Donovan vs Stale, 445 NW 2d 763 [Iowa 19891). The patient underwent surgery on March 13, 1984, to replace a defective heart valve. He was discharged on March 30 and readmitted the next day. He was discharged again on April 13 but was readmitted five days later. He sued, claiming that the negligence of hospital personnel caused his staphylococcal infection, which in turn caused his replacement valve to fail. In his petition, the plaintiff alleged that a break in sterile procedure resulted in the staphylococcal infection, as well as misdiagnosis and delay of treatment. The hospital submitted an affidavit from
its expert witness that the patient’s problems were caused by a weakening of the replacement valve due to a staphylococcal infection. In addition, the expert witness stated that there was “no indication that there was any break in surgical or sterile technique which led t o prosthetic valve endocarditis.” The patient did not offer expert testimony to refute this statement or provide any evidence that there was a break in technique. This case was not allowed to proceed to trial because there were no facts in dispute to require a jury’s decision.
Perforated Vessels
I
n a 1990 Texas case, the patient’s iliac artery and vein were perforated during a lumbar laminectomy (Wendenburg vs Williams, 784 SW 2d 705 [Tex App 19901). The defendant surgeon did not deny perforating the vessels but contended that the injury did not result from his negligence. The plaintiff did not introduce evidence to prove the defendant’s negligence. The plaintiff argued that the surgeon’s negligence was so obvious that there was no need for such evidence. The trial court judge agreed and allowed the jury to find the defendant surgeon negligent and that his negligence caused the injury. The surgeon appealed. The appellate court agreed with the surgeon. Before proceeding to a discussion of this case, the Texas court restated the relevant Texas law. This law requires a physician to present expert testimony that a violation of the proper medical standard caused the patient’s injury. If the plaintiff 19
fails to produce such expert testimony, he or she cannot win the case unless the nature of the alleged malpractice and injuries are plainly within the common knowledge of the laypersons of the jury. The Texas court agreed that in some cases (such as operating on the incorrect body part or leaving instruments and sponges in the body) negligence can be inferred from the nature of the action itself. It held, however, that perforation of the iliac vessels during lumbar laminectomy is not such a case, and that negligence must be proven. The plaintiff argued that in perforating the iliac vessels, the surgeon had operated on the wrong body part. The defendant’s expert witness testified that the iliac artery and vein touched the anterior ligament of the disk when the surgeon was operating. This, the court said, is not the scenario found in previous cases that allowed negligence to be inferred for operating on the wrong body part. That would require the doctor to intentionally operate on the wrong body part under the mistaken impression that he was operating on the correct part. This did not happen in this case. Second, the plaintiff argued, the jury should be allowed to find negligence without expert evidence because the injury was caused by the surgeon’s use of a mechanical instrument, and juries know how mechanical instruments work as a matter of common knowledge. The court also rejected this assertion. It noted this operation was conducted with many specialized tools, including a microscope. To reach the disk, the surgeon had to cut through several layers of tissue, and he ultimately removed the disk with a pituitary rongeur through a %-inch wide aperture. Testimony at trial revealed that extensive training is required to use this instrument properly. The court concluded that proper use of a pituitary rongeur is not within the common knowledge of the layperson. As a result, jurors could not determine if the surgeon had used it negligently without expert evidence to inform them. Ironically, the surgeon himself provided the only evidence at trial that he had been negligent. After completing the surgery, he had spoken with the patient’s husband and told the husband about the possible injury to the patient’s iliac vessels. At trial, the husband testified about the content of
that conversation. He made the statement, ‘th& is a rare occurrence.’ He never-[he only cme he could remember it ever happening [in] was some movie aclor who died from [his procedure. He said he also wondered what kind of idiot would do such a thing-such a mistake. Now he knew, (Id at 708). The court concluded that the surgeon’s statements to the husband were “some evidence” that he negligently perforated the patient’s blood vessels. If this evidence had not been in the record, the appellate court would have reversed the jury’s decision of negligence. It would have declared that the surgeon was not negligent because the plaintiff had produced no evidence to prove his case. Because there was some evidence of negligence, however, the appellate court sent the case back to the trial court for a new trial.
Blindness
A
1988 Missouri case illustrates that even when a procedure does not go well in the OR and blindness results, the defendants may not be liable. Liability can be found only if the reason the procedure did not go smoothly was because the defendants were acting unreasonably and not in accordance with the standard of care. Their action also must have caused the blindness (Zimmer vs US, 702 F Supp 757 [ED Mo 19881). In this case, two residents performed cataract surgery on the plaintiffs right eye on July 2, 1985. The operating surgeon was a second-year resident. A third-year resident assisted her. The operating microscope they used had an inoperative coaxial light; both side lights were operative. The surgery began with the patient on his back. The surgeon attempted to use a cystotome needle to remove the lens nucleus. She made two or three unsuccessful attempts before the third-year resident attempted the procedure from the assistant’s position, also unsuccessfully. The thirdyear resident then assumed the position of the operating surgeon. Fluid filled the eye such that neither resident could see the lens nucleus. It had become displaced and slipped to the back of the eye. The case report, written by the Federal court
A O R N JOURNAL
judge who decided the case, stated that displacement of the lens nucleus is a common complication of cataract surgery and was not caused by the surgeons’ substandard care. The surgeon then had the patient turn on his side and used an indirect scope to locate the lens in the back of the eye. The third-year resident asked another resident to call the supervising faculty ophthalmologist for advice. The chief of ophthalmology at the hospital where the surgery was performed was out of town. The supervising ophthalmologist advised turning the patient on his side and abdomen and attempting to remove the displaced nucleus by impaling it on a needle. While the patient was on his side, the thirdyear resident tried to impale the lens nucleus two or three times, unsuccessfully. She then turned the patient on his abdomen and attempted to impale the lens nucleus two or three times, also unsuccessfully. She examined his retina and did not observe any tear. She decided to keep the patient on his abdomen overnight because the lens nucleus might fall through. She advised the patient that he might be transferred to another hospital to have surgery on the back part of his eye. The lens did not fall through, and the residents’ supervising faculty ophthalmologist saw the patient the next day. He advised transfer for a vitrectom y. At the start of the vitrectomy, the surgeon observed the lens nucleus on the retina. He did not see any damage to the retina. He testified that if there had been damage, he would have seen it. Thus, there was no retinal tear at the start of the vitrectomy. During the procedure, however, the retina did tear. Attempted surgical repairs were unsuccessful. Eventually, the patient elected not to undergo additional surgery. He is now effectively blind in this eye, with light perception only. The judge who heard this case against the hospital and residents involved in the first case stated the applicable Missouri law as follows. To recover a medical malpractice action against a physician, the plaintiff must establish that an act or omission of the physician failed to meet the requisite standard of medical care, 22
JIJ1.Y 1990, VOL. S2. NO I
the act or omission was performed negligently, and a causal connection exists between the act or omission and the injury sustained. He specifically stated that no presumption of negligence arises merely because of an adverse result. Physicians are entitled to a wide range of discretion in exercising their medical judgment. They are not negligent unless their conduct clearly deviates from that generally recognized by the profession as correct. With this in mind, the judge decided that the residents and supervising faculty member were not negligent. His reasoning was as follows. The fact that the coaxial light on the microscope was inoperative had no factual connection to the loss of vision. The displacement of the lens nucleus was not caused by substandard medical care by the residents. Rather, the displacement was “a mere adverse result.” The evidence established that the retinal tear did not occur at the hands of the residents. Rather, the tear occurred during the vitrectomy. No evidence at trial indicated that the procedures used by the residents after the patient’s lens became displaced had any causal connection to the retinal tear. The tear occurred at the second hospital during the vitrectomy, which was performed by other surgeons. Thus, even if the attempts made by the residents were below the requisite standard of medical care, there is no causal connection between those actions and the injury sustained. Accordingly, the fact that they used those procedures was not malpractice and did not result in the patient’s loss of vision. None of these cases involves any allegation of perioperative nurse negligence. They are cited here only as recent examples in which defendant surgeons were not found liable even though things went wrong and serious injuries occurred. Neither an untoward result nor a less than smooth surgical episode are sufficient to result in liability. ELLENK. MURPHY, RN, JD, CNOR, FAAN UNIVERSITY OF WISCONSIN-MILWAUKEE
If you have quesrions on OR nursing law rhar you would like answered, please send them 10 Ellen K . Murphy, JD, c/o AORN Journal, 10170 E Mississippi A ve, Denver, CO 8023 1.