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Legal aspects of perioperative care extend to ambulatory surgery settings
NOVEMBER 1984, VOL 40, NO 5
AORN J O U R N A L
OR Nursing Law Legal aspects of perioperative care extend to ambulatory surgery settings
Q
Our ambulatory surgery service is expanding rapidly, so we are constantly adding new procedures and surgeons. Time constraints make it nearly impossible to keep up with equipment and supplies, much less develop patient teaching plans and discharge instructions. How important are written discharge instructions? We tell each patient what to watch for and who to call if problems arise, but we have not had time to develop written instructions. Also, must we document everything we tell each patient?
A
From a legal standpoint, teaching plans and discharge instructions for ambulatory surgery patients are as important as proper supplies and equipment. The legal duty to the ambulatory surgery patient does not end with the conduct of a safe operative procedure. The need for continued observation and assistance must be assessed. Either provide direct care to meet those needs or obtain assurance that the patient and/or caregiver has sufficient information to safely carry out the observationand assistance at home. The case ofBateman v Rosenberg, 525 SW2d 753 (Mo App 1975) involved postoperative discharge from the surgeon’soffice rather than from an ambulatory care setting, but it is indicative of how a court might regard the continuing duty to the patient and dischargeteaching. In that case, a husband successfully sued the surgeon for the death of his wife. She had undergone a tonsillectomy in the surgeon’s office at about 10 am. She experienced postoperative bleeding while she was under observation in the surgeon’s office. She was discharged about 4 pm and driven home
by a friend. The surgeon told the friend to give the patient two teaspoonsof magaldrate (Riopan) which he provided, to place an icepack on her throat, and that he would have additional medications delivered. During this exchange the patient was described as “groggy and made no response. ’’ The surgeon made no inquiry as to the friend’s background or experience with persons recovering from surgery. As it turned out, this friend had merely volunteeredto drive the patient home and was unable to stay with her. She transferred the patient’s care and the surgeon’s instructions to a neighbor who said she would stay with the patient. The patient was in bed, lying on her back making “snoring loud sounds.” The drugs the surgeon had ordered were delivered at 6 pm and consisted of a local antiseptic, a cough medicine, and vitamin K. The neighbor did not administer any of the drugs. The patient was apparently asleep. When the patient’s husband arrived home from work at 6:30 pm, he found her cold and unresponsive. The police were called and they took the patient to the hospital, where she was pronounced dead. Cause of death was determined to be asphyxia due to blood in the bronchial tree and endema of the glottis. The court said the surgeon’s obligation to the patient does not end with the conclusion of a successful operation; that the physician must not only use care and skill in performing the operation, but must also continue to exercise diligence to give, or see that the patient is given, such attention as the necessity of the case demands.
d) 699
NOVEMBER 1984. VOL 40. NO 5
AORN J O U R N A L
The court also said that if the surgeon is unable to personally attend a patient in need of continued attention, it is his responsibility to see that those persons who are to be in attendance are competent to perform such services, or to give them instructions to enable them to competently look after the patient. The surgeon testifiid that he had provided additional postoperative instructions to the friend who took the patient home. The friend testifiid that she had received no further instructions. The court said that “whether defendant gave the instnrctions was for the jury to determine.” The jury found the surgeon failed to instruct the friend, and that the patient’s death was caused by the surgeon’s failure to see that the patient received adequate postoperative supervision. Must these instructions be written? Written instructions, a copy of which is retained in the patient’s record, would have made proof of what the surgeon told the friend clearer in the case above. But more importantly, written instructions can reinforce verbal instructions and serve as a reference to the patient or caregiver at home. While written instructions are, in general, helpful in patient teaching situations, they are especially important for the ambulatory surgery patient when one considers the anterograde and retrograde amnesic effects of some anesthetics. The JCAH Accreditation Manual for Hospitals’ requires that “Written instructions for follow up care shall be given to the patient or responsible family member and shall include directions for obtaining an appropriate surgeon or qualified oral surgeon for postoperative problems” when surgical services are provided in an ambulatory care setting. Should a patient injury occur because a patient was either not told or forgot what postoperative complications to watch for or what to do if they occurred, the patient could sue for negligence in discharge teaching. The JCAH requirement could be used as evidence that the hospital should have provided written discharge instructions. If your ambulatory surgery unit is based in a nonhospital setting, the JCAH standardmight still be persuasive evidence that a reasonable facility that 702
provided ambulatory surgery services would provide written discharge instructions.
Q
Last week one of our ambulatory surgery patients answered no to our preoperative question about whether she had eaten or drunk anything after midnight. It became obvious during induction that she had eaten in the past several hours. The anesthetist’s quick reaction avoided aspiration. If she had aspirated, would we be liable?
A
Health care professionalsare generally entitled to rely on information given by patients when that information Seems consistent within the context of the situation. Most legal cases involvinginjuries that resulted because of a patient’s erroneous information have involved the alleged need for drugs. For example, movery was barred where the patient had willfully and intentionally misrepresented his history and need for drugs (Rochester v Katalan, 320 A2d 704 (Del 1974)). It is difficult to imagine a patient’s motivation to claim that he remained NPO when, in fact, he did not. The inconvenience of rescheduling is clearly outweighed by the threat of his safety if the patient understood that threat. If the patient understood the importance of remaining NPO and knew the threat to his safety that an untruthful answer posed, the patient could be considered negligent;that is, he failed to use reasonable care in his conduct. The patient’s negligence could bar recovery or could be considered in comparison to the negligence of others. ELLENK MURPHY. MS, JD,CNOR BROOKLYN, WIS Note 1. Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals (Chicago: JCAH, 1983) 64. rfyou have any questions on OR nursing law you would like answered, please send them to Ellen K Murphy, JD, c/o AORN Journal, 10170 E Mississippi Ave, Denver, CO 80231. Questions of general interest will be selected for replies in this column.
AORN J O U R N A L
OR Nursing Law Legal aspects of perioperative care extend to ambulatory surgery settings
Q
Our ambulatory surgery service is expanding rapidly, so we are constantly adding new procedures and surgeons. Time constraints make it nearly impossible to keep up with equipment and supplies, much less develop patient teaching plans and discharge instructions. How important are written discharge instructions? We tell each patient what to watch for and who to call if problems arise, but we have not had time to develop written instructions. Also, must we document everything we tell each patient?
A
From a legal standpoint, teaching plans and discharge instructions for ambulatory surgery patients are as important as proper supplies and equipment. The legal duty to the ambulatory surgery patient does not end with the conduct of a safe operative procedure. The need for continued observation and assistance must be assessed. Either provide direct care to meet those needs or obtain assurance that the patient and/or caregiver has sufficient information to safely carry out the observationand assistance at home. The case ofBateman v Rosenberg, 525 SW2d 753 (Mo App 1975) involved postoperative discharge from the surgeon’soffice rather than from an ambulatory care setting, but it is indicative of how a court might regard the continuing duty to the patient and dischargeteaching. In that case, a husband successfully sued the surgeon for the death of his wife. She had undergone a tonsillectomy in the surgeon’s office at about 10 am. She experienced postoperative bleeding while she was under observation in the surgeon’s office. She was discharged about 4 pm and driven home
by a friend. The surgeon told the friend to give the patient two teaspoonsof magaldrate (Riopan) which he provided, to place an icepack on her throat, and that he would have additional medications delivered. During this exchange the patient was described as “groggy and made no response. ’’ The surgeon made no inquiry as to the friend’s background or experience with persons recovering from surgery. As it turned out, this friend had merely volunteeredto drive the patient home and was unable to stay with her. She transferred the patient’s care and the surgeon’s instructions to a neighbor who said she would stay with the patient. The patient was in bed, lying on her back making “snoring loud sounds.” The drugs the surgeon had ordered were delivered at 6 pm and consisted of a local antiseptic, a cough medicine, and vitamin K. The neighbor did not administer any of the drugs. The patient was apparently asleep. When the patient’s husband arrived home from work at 6:30 pm, he found her cold and unresponsive. The police were called and they took the patient to the hospital, where she was pronounced dead. Cause of death was determined to be asphyxia due to blood in the bronchial tree and endema of the glottis. The court said the surgeon’s obligation to the patient does not end with the conclusion of a successful operation; that the physician must not only use care and skill in performing the operation, but must also continue to exercise diligence to give, or see that the patient is given, such attention as the necessity of the case demands.
d) 699
NOVEMBER 1984. VOL 40. NO 5
AORN J O U R N A L
The court also said that if the surgeon is unable to personally attend a patient in need of continued attention, it is his responsibility to see that those persons who are to be in attendance are competent to perform such services, or to give them instructions to enable them to competently look after the patient. The surgeon testifiid that he had provided additional postoperative instructions to the friend who took the patient home. The friend testifiid that she had received no further instructions. The court said that “whether defendant gave the instnrctions was for the jury to determine.” The jury found the surgeon failed to instruct the friend, and that the patient’s death was caused by the surgeon’s failure to see that the patient received adequate postoperative supervision. Must these instructions be written? Written instructions, a copy of which is retained in the patient’s record, would have made proof of what the surgeon told the friend clearer in the case above. But more importantly, written instructions can reinforce verbal instructions and serve as a reference to the patient or caregiver at home. While written instructions are, in general, helpful in patient teaching situations, they are especially important for the ambulatory surgery patient when one considers the anterograde and retrograde amnesic effects of some anesthetics. The JCAH Accreditation Manual for Hospitals’ requires that “Written instructions for follow up care shall be given to the patient or responsible family member and shall include directions for obtaining an appropriate surgeon or qualified oral surgeon for postoperative problems” when surgical services are provided in an ambulatory care setting. Should a patient injury occur because a patient was either not told or forgot what postoperative complications to watch for or what to do if they occurred, the patient could sue for negligence in discharge teaching. The JCAH requirement could be used as evidence that the hospital should have provided written discharge instructions. If your ambulatory surgery unit is based in a nonhospital setting, the JCAH standardmight still be persuasive evidence that a reasonable facility that 702
provided ambulatory surgery services would provide written discharge instructions.
Q
Last week one of our ambulatory surgery patients answered no to our preoperative question about whether she had eaten or drunk anything after midnight. It became obvious during induction that she had eaten in the past several hours. The anesthetist’s quick reaction avoided aspiration. If she had aspirated, would we be liable?
A
Health care professionalsare generally entitled to rely on information given by patients when that information Seems consistent within the context of the situation. Most legal cases involvinginjuries that resulted because of a patient’s erroneous information have involved the alleged need for drugs. For example, movery was barred where the patient had willfully and intentionally misrepresented his history and need for drugs (Rochester v Katalan, 320 A2d 704 (Del 1974)). It is difficult to imagine a patient’s motivation to claim that he remained NPO when, in fact, he did not. The inconvenience of rescheduling is clearly outweighed by the threat of his safety if the patient understood that threat. If the patient understood the importance of remaining NPO and knew the threat to his safety that an untruthful answer posed, the patient could be considered negligent;that is, he failed to use reasonable care in his conduct. The patient’s negligence could bar recovery or could be considered in comparison to the negligence of others. ELLENK MURPHY. MS, JD,CNOR BROOKLYN, WIS Note 1. Joint Commission on Accreditation of Hospitals, Accreditation Manual for Hospitals (Chicago: JCAH, 1983) 64. rfyou have any questions on OR nursing law you would like answered, please send them to Ellen K Murphy, JD, c/o AORN Journal, 10170 E Mississippi Ave, Denver, CO 80231. Questions of general interest will be selected for replies in this column.