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Spectators in the OR
FEBRUARY 1997, VOL 65, NO 2 OR NURSING LAW
Spectators in the OR bserving surgery has become the health care industry’s newest spectator sport, in which a seemingly endless stream of students, sales representatives, sports trainers, and others can gather to view surgical procedures. This trend opens a new area for the liability of hospitals and hospital personnel. The following is an example of what an OR supervisor might encounter in a typical day. It is only 7: 15 AM, and the OR supervisor already has had to speak with Dr Jones, a gynecologist, who invited three students to observe a surgical procedure today without obtaining the necessary authorizations. After learning that the three students were Dr Jones’ son and his two college friends, the OR supervisor notified the chief of surgery, who promptly interrupted Dr Jones’ well-intended, but not well-thought-out, plans. The OR supervisor winds his way down the crowded hallway to relieve the circulating nurse in OR 12, and he scans the many masked, but not always identifiable, faces that hurry past him. As he approaches OR 3, he observes a nursing instructor leading what appears to be a nauseated student out of the room. Between ORs 4 and 5, he sees a sales representative trying to sell a young thoracic surgeon on the benefits of a new chest tube as she scrubs for her next procedure. The surgeon looks gratefully at the OR supervisor as
he escorts the salesperson back to OR 7, where the sales representative is supposed to be observing another thoracic procedure. Peering through the window of OR 10, the OR supervisor checks on the assistant football coach and trainer as they videotape an orthopedic surgeon’s efforts to repair their star fullback’s injured knee. It is another day in the life of an OR supervisor,who must depend on competent surgeons and surgical staff members to enforce policies and procedures that limit the risks associated with unauthorized access, invasion of privacy, and wrongful disclosure of confidential information.
UNAUTHORIZEDACCESS Safety and security are significant concerns in perioperative settings because patients are vulnerable when they are induced with anesthesia or given mind-altering medications. Surgeons and surgical staff members wear many layers of masks, gowns, and other required protective garb that may make them indistinguishable from visitors in the OR, who are similarly masked. Given these concerns, only authorized and properly supervised people who are involved in duly authorized activities should be allowed in surgical suites. As a result, the hospital must select competent surgeons and surgical staff members who take their responsibilities seriously and who monitor and control the flow of 427 AORN JOURNAL
services and people within the surgical suite. Well-drafted surgical staff bylaws, rules and regulations, and surgical department policies must identify specific people, prerequisites, and limitations necessary to authorize and limit access to the surgical suite. At a minimum, such surgical staff and department rules should address each of the following questions in detail. What type of person is permitted access to the perioperative setting? Students (eg, medical, nursing, allied health, premedical, college, high school)? Sales representatives? Sports trainers? Coaches? Others? What is the procedure for requesting access to the perioperative setting? Who makes the request? Is it in writing? What information is required? How far in advance should the request be made? Who reviews the request and makes the final decision? rn If access is granted, what other consents (eg, patient, parent) must be obtained? By whom? rn What are the specific limitations (eg, related to attire, conduct, location) on the OR visitor? What type of orientation is required? By whom? Is the person there only to observe? If so, is he or she to remain in the comer of the room or in the surgical suite’s observation deck? Can he or she scrub in and assist with surgery?
FEBRUARY 1997, VOL 65, NO 2
What level of supervision is required? By whom? Who ultimately is responsible for this person’s behavior? What types of recording devices (eg, camera, videotape, computer) are allowed during the procedure? Are they inspected before their use? How is the confidential information obtained by these recordings protected from wrongful disclosure to a third party? Students in the health care professions frequently are present in surgical suites to observe, and sometimes to participate in, surgical procedures; therefore, education programs and their instructors also have a legal duty to instruct and supervise these students adequately in surgical suites. The instructors, whether they are attending physicians or nursing instructors, bear a particularly important responsibility for the actions and behaviors of the students who are present during surgical procedures. Such obligations, in addition to student prerequisites (eg, tuberculosis testing, malpractice insurance, cardiopulmonary resuscitation certification), should be stated clearly in the underlying training agreements between hospitals and education programs. Surgeons and surgical department staff members must supervise and control the access, supervision, and behavior of all students and other visitors who may be present, properly or improperly, in perioperative settings. Controlling OR access allows people from the “outside world” to learn more about surgery while protecting the safety, privacy, and confidentiality interests of surgical patients and hospital personnel.
INVASION OF PRIVACY Within the realm of tort law, the law of privacy addresses four distinct types of invasion that, when taken as a whole, represent a person’s right “to be left alone.” These include
Onlookers might be tempted to invade a patient‘s privacy, especially if the patient has an unusual condition. intrusion on a person’s physical and mental solitude or seclusion, public disclosure of private facts regarding the person, publicity that places the person in a false light in the public eye, and appropriation of the person’s name or likeness for a third party’s benefit or advantage.’ The first two of these types of invasion should be of particular concern to health care professionals. Every person has the right to keep himself or herself from unnecessary and unauthorized public exposure or scrutiny. Any such invasion of the person’s privacy may constitute a legal wrong. Perioperative nurses must understand that onlookers might be tempted to invade a patient’s right of privacy, particularly if the patient has an unusual condition or is undergoing an unusual surgical procedure. Understand428 AORN JOURNAL
ably, caution must be taken to prevent any such violation of a patient’s right of privacy, especially when recording devices such as cameras and video cameras are allowed into the OR. The following cases are examples of invasion of privacy. A Michigan physician allowed an unmarried nonprofessional man in a patient’s delivery room, and the court granted the plaintiff substantial damages for her injured feelings (DeMay v Roberts [46 Mich 160,9 NW 146 { 1881 }I). Such court decisions emphasize the need for perioperative nurses to consider patients’ rights to privacy in perioperative settings. In a Georgia case, the parents of a deceased child brought a petition against a hospital, a photographer, and a newspaper for damages, enjoining the unauthorized publication of a picture of their son, who was born with his heart on the outside of his body. The child underwent a surgical procedure that could not correct the defect, which ultimately resulted in his death. The parents alleged that the privacy of their lives had been invaded, inflicting much anguish and mental suffering. The initial judgment in favor of the defendants was reversed on appeal (Bazemore v Savannah Hospital [171 Ga 257, 155 SE 194 (1930)l). In another case, a patient agreed, before undergoing a cesarean section, to allow the surgeon to film the procedure for use during a medical education program. The patient, however, had a cause of action when the physician and the
FEBRUARY 1997, VOL 65, NO 2
motion picture producer made a film called “Birth” and exhibited it publicly in two theaters in New York (Feeney v Young [181 N Y S 481 (NY 1920}]). In Barber v Time, Znc (1.1594 W 2d 291 [Mo 1942]), an article was published in Time magazine’s medicine section that had a photograph of and named a woman in her hospital gown, describing her medical condition as a pancreatic condition that resulted in uncontrollable gluttony. The patient sued on the right of privacy and collected monetary damages.
CONCLUSION As citizens in a democratic society, we all have duties that require disclosures in the public interest; however, tort actions may be brought against people who seriously or unreasonably interfere with others’ privacy by having their personal affairs made known or their likenesses exhibited in public. For these reasons, surgical services managers must establish stringent rules that control the use of recording devices in perioperative settings. Such rules, in addition to well-stated confidentiality policies that apply to surgeons, surgical staff members, and visitors in perioperative
settings, enable hospitals to limit the risks associated with the invasion of patients’ privacy and the wrongful disclosure of confidential information. SUSAN E. ZlEL RN, JD, EWIRE NELSON MULLINS RILEY & SCARBoRoUoH, UP COLUMBU,SC The author expresses appreciation to Sandra S.Lutharn, RN,CNOR, staff nurse, Providence Hospital, Columbia, SC, and Lynn B . Wythe,RN,MS, CS,director of perioperative services, Baptist Medical Center, Columbia,SC, who reviewed this article and provided valuablefeedback.
of Torts, fifth ed (St Paul, Minn: West Publishing Co,
NOTES 1. W L Prosser et al, Prosser and Keeton On the Law
1984)849-869.
New Xenotransplantation Guideline Available In a Sept 20,1996, news release, the US Department of Health and Human Servicesproposed a new draft guideline for xenotransplantation (ie, the transplantation of animal organs and tissue into humans). The guideline’s purpose is to reduce public health risks while not impeding medical innovation. Limited availability of human organs, coupled with recent biotechnical advances, has increasingly led to implantations of living cells from other species when human donors are not available, when a bridge organ is needed, or when animal cells may provide a unique benefit. The guideline’s recommended procedures were developed collaboratively by the US Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH). The guideline covers all forms of xenotransplantation, including experiments with unmodified solid organs, and is based on a series of public meetings that the FDA, CDC, and NIH held with members of the medical and scientific community, academia, and the general public. To help safeguard public health, the guideline includes taking appropriate safety measures for pretransplant animal screening to minimize the possibility
of cross-species transmission of animal diseases (ie, zoonoses); archiving biologic samples (eg, sera, plasma, leukocytes, tissues) from the source animal and transplant recipient for potential public health investigations; selecting members of the xenotransplant team for their expertise in providing adequate safeguards and conducting research that will yield useful data; having local review boards evaluate the xenotransplantation procedures to assess infectious disease risks; and monitoring patients after xenotransplantation procedures for infectious agents, including not yet recognized or latent animal organisms that may cause disease in humans, especially those who are immunocompromised. After a 90-day comment period, the FDA will revise the guideline and publish the final version early in 1997.
XenotransplantationGuideline Available (news release, Washington, Dc: US Department of Health and Human Ser-
vices, Sept 20, 1996).
430 AORN JOURNAL
Spectators in the OR bserving surgery has become the health care industry’s newest spectator sport, in which a seemingly endless stream of students, sales representatives, sports trainers, and others can gather to view surgical procedures. This trend opens a new area for the liability of hospitals and hospital personnel. The following is an example of what an OR supervisor might encounter in a typical day. It is only 7: 15 AM, and the OR supervisor already has had to speak with Dr Jones, a gynecologist, who invited three students to observe a surgical procedure today without obtaining the necessary authorizations. After learning that the three students were Dr Jones’ son and his two college friends, the OR supervisor notified the chief of surgery, who promptly interrupted Dr Jones’ well-intended, but not well-thought-out, plans. The OR supervisor winds his way down the crowded hallway to relieve the circulating nurse in OR 12, and he scans the many masked, but not always identifiable, faces that hurry past him. As he approaches OR 3, he observes a nursing instructor leading what appears to be a nauseated student out of the room. Between ORs 4 and 5, he sees a sales representative trying to sell a young thoracic surgeon on the benefits of a new chest tube as she scrubs for her next procedure. The surgeon looks gratefully at the OR supervisor as
he escorts the salesperson back to OR 7, where the sales representative is supposed to be observing another thoracic procedure. Peering through the window of OR 10, the OR supervisor checks on the assistant football coach and trainer as they videotape an orthopedic surgeon’s efforts to repair their star fullback’s injured knee. It is another day in the life of an OR supervisor,who must depend on competent surgeons and surgical staff members to enforce policies and procedures that limit the risks associated with unauthorized access, invasion of privacy, and wrongful disclosure of confidential information.
UNAUTHORIZEDACCESS Safety and security are significant concerns in perioperative settings because patients are vulnerable when they are induced with anesthesia or given mind-altering medications. Surgeons and surgical staff members wear many layers of masks, gowns, and other required protective garb that may make them indistinguishable from visitors in the OR, who are similarly masked. Given these concerns, only authorized and properly supervised people who are involved in duly authorized activities should be allowed in surgical suites. As a result, the hospital must select competent surgeons and surgical staff members who take their responsibilities seriously and who monitor and control the flow of 427 AORN JOURNAL
services and people within the surgical suite. Well-drafted surgical staff bylaws, rules and regulations, and surgical department policies must identify specific people, prerequisites, and limitations necessary to authorize and limit access to the surgical suite. At a minimum, such surgical staff and department rules should address each of the following questions in detail. What type of person is permitted access to the perioperative setting? Students (eg, medical, nursing, allied health, premedical, college, high school)? Sales representatives? Sports trainers? Coaches? Others? What is the procedure for requesting access to the perioperative setting? Who makes the request? Is it in writing? What information is required? How far in advance should the request be made? Who reviews the request and makes the final decision? rn If access is granted, what other consents (eg, patient, parent) must be obtained? By whom? rn What are the specific limitations (eg, related to attire, conduct, location) on the OR visitor? What type of orientation is required? By whom? Is the person there only to observe? If so, is he or she to remain in the comer of the room or in the surgical suite’s observation deck? Can he or she scrub in and assist with surgery?
FEBRUARY 1997, VOL 65, NO 2
What level of supervision is required? By whom? Who ultimately is responsible for this person’s behavior? What types of recording devices (eg, camera, videotape, computer) are allowed during the procedure? Are they inspected before their use? How is the confidential information obtained by these recordings protected from wrongful disclosure to a third party? Students in the health care professions frequently are present in surgical suites to observe, and sometimes to participate in, surgical procedures; therefore, education programs and their instructors also have a legal duty to instruct and supervise these students adequately in surgical suites. The instructors, whether they are attending physicians or nursing instructors, bear a particularly important responsibility for the actions and behaviors of the students who are present during surgical procedures. Such obligations, in addition to student prerequisites (eg, tuberculosis testing, malpractice insurance, cardiopulmonary resuscitation certification), should be stated clearly in the underlying training agreements between hospitals and education programs. Surgeons and surgical department staff members must supervise and control the access, supervision, and behavior of all students and other visitors who may be present, properly or improperly, in perioperative settings. Controlling OR access allows people from the “outside world” to learn more about surgery while protecting the safety, privacy, and confidentiality interests of surgical patients and hospital personnel.
INVASION OF PRIVACY Within the realm of tort law, the law of privacy addresses four distinct types of invasion that, when taken as a whole, represent a person’s right “to be left alone.” These include
Onlookers might be tempted to invade a patient‘s privacy, especially if the patient has an unusual condition. intrusion on a person’s physical and mental solitude or seclusion, public disclosure of private facts regarding the person, publicity that places the person in a false light in the public eye, and appropriation of the person’s name or likeness for a third party’s benefit or advantage.’ The first two of these types of invasion should be of particular concern to health care professionals. Every person has the right to keep himself or herself from unnecessary and unauthorized public exposure or scrutiny. Any such invasion of the person’s privacy may constitute a legal wrong. Perioperative nurses must understand that onlookers might be tempted to invade a patient’s right of privacy, particularly if the patient has an unusual condition or is undergoing an unusual surgical procedure. Understand428 AORN JOURNAL
ably, caution must be taken to prevent any such violation of a patient’s right of privacy, especially when recording devices such as cameras and video cameras are allowed into the OR. The following cases are examples of invasion of privacy. A Michigan physician allowed an unmarried nonprofessional man in a patient’s delivery room, and the court granted the plaintiff substantial damages for her injured feelings (DeMay v Roberts [46 Mich 160,9 NW 146 { 1881 }I). Such court decisions emphasize the need for perioperative nurses to consider patients’ rights to privacy in perioperative settings. In a Georgia case, the parents of a deceased child brought a petition against a hospital, a photographer, and a newspaper for damages, enjoining the unauthorized publication of a picture of their son, who was born with his heart on the outside of his body. The child underwent a surgical procedure that could not correct the defect, which ultimately resulted in his death. The parents alleged that the privacy of their lives had been invaded, inflicting much anguish and mental suffering. The initial judgment in favor of the defendants was reversed on appeal (Bazemore v Savannah Hospital [171 Ga 257, 155 SE 194 (1930)l). In another case, a patient agreed, before undergoing a cesarean section, to allow the surgeon to film the procedure for use during a medical education program. The patient, however, had a cause of action when the physician and the
FEBRUARY 1997, VOL 65, NO 2
motion picture producer made a film called “Birth” and exhibited it publicly in two theaters in New York (Feeney v Young [181 N Y S 481 (NY 1920}]). In Barber v Time, Znc (1.1594 W 2d 291 [Mo 1942]), an article was published in Time magazine’s medicine section that had a photograph of and named a woman in her hospital gown, describing her medical condition as a pancreatic condition that resulted in uncontrollable gluttony. The patient sued on the right of privacy and collected monetary damages.
CONCLUSION As citizens in a democratic society, we all have duties that require disclosures in the public interest; however, tort actions may be brought against people who seriously or unreasonably interfere with others’ privacy by having their personal affairs made known or their likenesses exhibited in public. For these reasons, surgical services managers must establish stringent rules that control the use of recording devices in perioperative settings. Such rules, in addition to well-stated confidentiality policies that apply to surgeons, surgical staff members, and visitors in perioperative
settings, enable hospitals to limit the risks associated with the invasion of patients’ privacy and the wrongful disclosure of confidential information. SUSAN E. ZlEL RN, JD, EWIRE NELSON MULLINS RILEY & SCARBoRoUoH, UP COLUMBU,SC The author expresses appreciation to Sandra S.Lutharn, RN,CNOR, staff nurse, Providence Hospital, Columbia, SC, and Lynn B . Wythe,RN,MS, CS,director of perioperative services, Baptist Medical Center, Columbia,SC, who reviewed this article and provided valuablefeedback.
of Torts, fifth ed (St Paul, Minn: West Publishing Co,
NOTES 1. W L Prosser et al, Prosser and Keeton On the Law
1984)849-869.
New Xenotransplantation Guideline Available In a Sept 20,1996, news release, the US Department of Health and Human Servicesproposed a new draft guideline for xenotransplantation (ie, the transplantation of animal organs and tissue into humans). The guideline’s purpose is to reduce public health risks while not impeding medical innovation. Limited availability of human organs, coupled with recent biotechnical advances, has increasingly led to implantations of living cells from other species when human donors are not available, when a bridge organ is needed, or when animal cells may provide a unique benefit. The guideline’s recommended procedures were developed collaboratively by the US Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH). The guideline covers all forms of xenotransplantation, including experiments with unmodified solid organs, and is based on a series of public meetings that the FDA, CDC, and NIH held with members of the medical and scientific community, academia, and the general public. To help safeguard public health, the guideline includes taking appropriate safety measures for pretransplant animal screening to minimize the possibility
of cross-species transmission of animal diseases (ie, zoonoses); archiving biologic samples (eg, sera, plasma, leukocytes, tissues) from the source animal and transplant recipient for potential public health investigations; selecting members of the xenotransplant team for their expertise in providing adequate safeguards and conducting research that will yield useful data; having local review boards evaluate the xenotransplantation procedures to assess infectious disease risks; and monitoring patients after xenotransplantation procedures for infectious agents, including not yet recognized or latent animal organisms that may cause disease in humans, especially those who are immunocompromised. After a 90-day comment period, the FDA will revise the guideline and publish the final version early in 1997.
XenotransplantationGuideline Available (news release, Washington, Dc: US Department of Health and Human Ser-
vices, Sept 20, 1996).
430 AORN JOURNAL