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What rules should govern salesmen in the operating room?
What rules should govern salesmen in the operating room?
Q A salesman, who wanted to demonstrate the use of staples to a surgeon in my operating room, recently scrubbed and witnessed an operation without any administrative permission. He told me, the OR supervisor, that he was an OR technician. He could present no proof of that fact. Nothing was indicatedon the chart or in my log about his presence during surgery. The surgeon insistedthat there was no need to log in anyone who had nothing to do with the actual surgery. Fortunately, the operation was successful and clinically uneventful. What about the next time this happens?What kind of rules should we have about salesman-visitors in the operating room?
A
The frequency of this type of question reveals a widespread concern by OR supervisors about the presence of “outsiders,” not directly involved but nevertheless present in the operating room because a surgeon wants the outsider present. The typical consent for surgery includes reference to the authorization afforded the surgeon by the patient to use “such assistants as may be necessary to successfully perform the planned surgery.” It would be an unreasonable assumption to infer that the average patient intended to include equipment salesmen in such an authorization. When it can be anticipated that the surgeon wants to have an equipment salesman in the operating room for demonstration or observa-
tion, that fact must be disclosed to the patient. Specific reference to the agreed presence of the equipment service representative must be included in the patient’s informed consent. This, of course, assumes that the hospital does not have a regulation prohibiting the presence of equipment service or sales representatives in the operating room. If the practice is permitted by hospital rules, and if the patient has been made aware of the anticipated presence of the equipment sales or service person during the planned operation, the practice is legally acceptable. The OR log and operative notes should clearly reflect the presence and role of the equipment service or salesperson during the surgery as a matter of record.
Q If a surgeon writes on an order sheet: “Get consent form signed,” does that mean that he has no further responsibilityin the matter of obtainingan informedconsent? This kind of order appears to shift the burden of responsibility and liability from MD to RN. If the form isn’t signed properly or if the patient later challenges the signed form, saying consent was not freely given, can the MD simply say, “That’s the RN’s fault”? If one purpose of the signed consent form is to protect the MD, it would seem that he has a continuing responsibility for the quality of the consent given. Correct?
A
The purpose of the consent form is to establish written evidence of the fact that the operation was performedwith the prior knowledge and approval of the patient and that nothing in the course of the operationconstituted an unauthorized assault on the body of the
dAORN Journal, May 1979,Vol29, No 6
1095
Use of shared services by hospitals increases The growth of shared services among hospitals across the country has increased significantly in the last three years, according to a survey by the American Hospital Association (AHA). “The number of hospitals reporting participation in shared service activities has increased by 20% since 1975, when the last survey was made,” said Alex McMahon, AHA president. “More than 80°/0 of the responding hospitals in the country now share one or more services,’’ he said. The survey was conducted at the end of 1978. McMahon continued, “The money that is being saved by hospitals through joint purchasing and other services is being measured in millions of dollars. It is one of the most effective ways that hospitals are working together to continue to provide quality care while reducing the rate of increase in total expense.” The ten most commonly shared services in 1978 were purchasing, electronic data processing, blood banking, laboratory services, education and training, laundry and linen, library services, biomedical engineering, credit union, and diagnostic radiology. The survey showed that among community hospitals the increased participationwas greater than that of hospitals in general. In 1978, 84% of responding community hospitals participated in shared services, while 63% participated in 1975. “This dramatic increase in shared services has evolved for a number of reasons, primarily because more and more hospital administrators are being convinced of the cost-effectiveness of sharing services,” said Robert Toomey, director of the AHA Center for Multihospital Systems and Shared Services Organizations. “It is also due to more aggressive marketing by shared service organizations and the growth of multihospital systems,” Toomey said. More than one-third of the nation’s hospitals are part of multihospital systems.
conversation about C.0.S.T. You’ve aroused my curiosity. What’s C.O.S.T.? How can it save my hospital money on suction tubing? C.O.S.T. stands for “Cutting Overhead on Suction Tubing.” It’s a complete program of analysis, education and economy that lets your hospital cut tubing costs without cutting performance. How does your program operate? First, !’I1do a professional assessment of all tubing requirements throughout your hospital. Next, I’ll analyze the data. Then, I’ll present you with an action plan which includes actual dollar savings, where possible. Give me some examples. I’ll show you where you can use nonconductive tubing in place of conductive. I’ll show you where you can safely substitute clean, non-sterile tubing for sterile. And I’ll show you where you can switch from pre-cut lengths to more economical bulk tubing. In fact, there are lots of ways to cut your tubing costs. I’ll detail all of them for you in my formal C.O.S.T. presentation. This is very interesting. You’re actually telling me how to cut costs on tubing. Yet Davol sells tubing. What’s the catch? None whatsoever. Davol believes in cost containment as much as you do, and we’re willing to prove it. Our C.O.S.T. program-which doesn’t cost you a cent, by the way-will show you exactly how to get the best value for your tubing dollar.
n
Davol’s C.0. S .T.
works. OR Supervisors: You can get your free C.O.S.T. analysis at once. Simply ask your Davol representative. Or, write to: Davol C.O.S.T. Containment Program Davol Inc. Cranston, R. 1. 02920
1096
AORN Journal, Ma y 1979,Vol29, No 6
patient. Since the person most directly involved in the performance of the operation is the surgeon, the responsibility for demonstrating the consent of the patient rests squarely with the surgeon. When a nurse or other person delegated by the surgeon executes the surgeon’s order and obtains the patient‘s signature on the consent form, the person executing the order is acting as the agent for the surgeon and not independently of the surgeon. That beingthe case, the responsibility for the validity of the consent remains as intimately that of the surgeon as if he himself obtained the consent from the patient in writing. A distinction must be made between obtaining the informed consent (the physician’s responsibility) and the task of getting the consent form actually signed (a duty properly delegated to the nurse). The primary duty of informing the patient and thereby obtaining the consent of the patient cannot be delegated from physician to nurse, legally speaking. What can be delegated to a nurse by a physician is the function of having the informed patient sign the hospital-approved consent form.
Q If medical staff regulations relative to operating privileges are broken by a surgeon, can the surgeon thereafter legally operate or must the case be postponed? Some surgeons in my hospital argue that as long as they are licensed, have their surgical boards and their hospital appointments, they can operate within their specialty “regulations or no regulations.”
A
There are several ways in which a surgeon can lose his privilege to operate in any accredited hospital. When this happens as a result of an infraction of medical staff regulations relative to the completion of charts, the suspension has no bearing on the surgeon’s clinical ability. An operation performed while the surgeon is suspended will not endanger the patient‘s safety even though it may be a breach of hospital rules. On the other hand, a surgeon may have his privileges suspended or revoked as a result of evidence that he is not performing surgery competently or in accordance with the privileges granted to him in connection with his medical staff appointment.
1098
In the instance of incomplete records, it is not altogether unusual for misunderstandings and lack of communication to result in a surgeon presenting himself scrubbed and ready to operate upon a patient who has been premedicated and anticipates imminent surgery. in such a case, the hospital regulation relating to the automatic suspension because of incomplete medical records is often relaxed to permit the scheduled operation to be performed with the understanding that any further surgery, other than an emergency, will be deferred untilthe physician has complied with the medical record-keeping regulation. Where clinical incompetence is involved, suspension or revocation of surgical privileges related to clinical inadequacies on the surgeon’s part must be strictly enforced. When an emergency situation presents itself, substitute surgical assistance must be procured. The errant surgeon must not be permitted to perform surgery until the causes relatingto his surgical suspension or revocation have been removed.
Q The patient had been scheduled for an aorta femoral bypass graft. On the morning of surgery, the procedure was changed on the master schedule to amputation of the gangrenous toes. Since premedications are given at 7 am, the chart was checked for permit and premedication time. It was discovered that premedication was given at 6:45 am and consent for amputation was signed at 7 am. When the question was raised regardingthe ability of the patient to give a voluntary consent while medicated, the chief of surgery said the consent was valid. Could the OR supervisor, who permitted surgery to proceed, be held liable if the patient later repudiatedthe consent saying he was “drugged”?
A
The chief of surgery apparently weighed the necessity for the prompt amputation of gangrenous toes against the possible risk that the patient might later repudiate the signed consent form, arguing that he had signed the form 15 minutes after receiving premedication. Someone had to make a decision as to the probable validity of the informed consent and it was appropriate that this decision was made by the chief of surgery. The determination of the patient’s relative degree of consciousness
AORN Journal, May 1979,Vol29, No 6
and alertness could most appropriately be made by a physician under the circumstances described above. The OR supervisor who permitted the surgery to proceed would have an adequate legal defense by indicating that he or she deferred to the medical judgment of the chief of surgery as to the emergency nature of the surgery. If surgery had been delayed another 24 hours, the patient might have lost more than his toes. As the degree of urgency and risk increases, the relative necessity for prior informed written consent decreases to the point where, faced with imminent danger to the life of the patient or rapid deteriorationof a condition, prioritiesdictate that surgery be performed in the absence of any direct evidence of refusal of surgery by the patient. Inthis case, urgency dictated the decision to proceed. The legal justification: life-saving surgery.
tion-proof an environment in the operating room as is reasonably possible. When the OR supervisor discovers a source of potential infection, reasonable measures must be taken to rectify the problem as soon as possible. In the situation described above, it appears that the OR supervisor was unsuccessful in prevailing upon the surgeon to improve his sterile technique. Faced with this problem, the OR supervisor would be expected to follow established hospital reporting procedures exactly. Such procedures should include referring the problem both to the nursing service administrationand viathat office to the office of the chief of surgery for internal resolutionof the problem within the department of surgery. She should make her report in writing and keep a copy for her own records.
William A Regan, JD
Q Is the OR supervisor likelyto be successfully sued if a patient develops a postoperative infection probably due to poor sterile technique of the surgeon who refuses to change gown, gloves, or otherwise to improve his sterile technique when the OR supervisor requests him to do so? From a legal point of view, how should the OR supervisor handle this kind of disciplinary problem in the OR?
A
One of the classic responsibilities of the OR supervisor is to take whatever steps he or she feels are warranted to maintain as infec-
Managing partner Regan, Carberty, Flynn, and Gelineau Providence, RI
If you have questions on OR nursing law you would like answered, please send them to William A Regan, JD, c/o AORN Journal, 10170 E MississippiAve, Denver, Colo 8023 1. Questions of general interest will be selected for replies in this column. Other questions will not be answered. Questions will not be acknowledged or returned.
Report measures gains in Indian health care A new statistical report by the Indian Health Service of the US Department of Health, Education, and Welfare measures progress in reducing death and disease among American Indians and Alaskan Natives. Data collection by the Service began in 1955. The report states the death rate for infants in 1975 had been reduced 71% from 20 years earlier. In the same period the death rate due to gastroenteric causes declined by 88%, and deaths from influenza and pneumonia were reduced by 63%. The health status of American Indians
and Alaskan Natives, however, continues to lag behind that of the general population, the report said. Among special problems are alcoholism and death and injury from accidents. The Indian Health Service operates hospitals and clinics in 25 states, in addition to preventive health, environmental health, mental health, and other programs. Copies of the report Indian Health Trends and Services are available from the Indian Health Service, Health Services Administration, 5600 Fishers Lane, Rockville, Md 20857.
AORN Journal, May 1979,Vol29, No 6
1099
Q A salesman, who wanted to demonstrate the use of staples to a surgeon in my operating room, recently scrubbed and witnessed an operation without any administrative permission. He told me, the OR supervisor, that he was an OR technician. He could present no proof of that fact. Nothing was indicatedon the chart or in my log about his presence during surgery. The surgeon insistedthat there was no need to log in anyone who had nothing to do with the actual surgery. Fortunately, the operation was successful and clinically uneventful. What about the next time this happens?What kind of rules should we have about salesman-visitors in the operating room?
A
The frequency of this type of question reveals a widespread concern by OR supervisors about the presence of “outsiders,” not directly involved but nevertheless present in the operating room because a surgeon wants the outsider present. The typical consent for surgery includes reference to the authorization afforded the surgeon by the patient to use “such assistants as may be necessary to successfully perform the planned surgery.” It would be an unreasonable assumption to infer that the average patient intended to include equipment salesmen in such an authorization. When it can be anticipated that the surgeon wants to have an equipment salesman in the operating room for demonstration or observa-
tion, that fact must be disclosed to the patient. Specific reference to the agreed presence of the equipment service representative must be included in the patient’s informed consent. This, of course, assumes that the hospital does not have a regulation prohibiting the presence of equipment service or sales representatives in the operating room. If the practice is permitted by hospital rules, and if the patient has been made aware of the anticipated presence of the equipment sales or service person during the planned operation, the practice is legally acceptable. The OR log and operative notes should clearly reflect the presence and role of the equipment service or salesperson during the surgery as a matter of record.
Q If a surgeon writes on an order sheet: “Get consent form signed,” does that mean that he has no further responsibilityin the matter of obtainingan informedconsent? This kind of order appears to shift the burden of responsibility and liability from MD to RN. If the form isn’t signed properly or if the patient later challenges the signed form, saying consent was not freely given, can the MD simply say, “That’s the RN’s fault”? If one purpose of the signed consent form is to protect the MD, it would seem that he has a continuing responsibility for the quality of the consent given. Correct?
A
The purpose of the consent form is to establish written evidence of the fact that the operation was performedwith the prior knowledge and approval of the patient and that nothing in the course of the operationconstituted an unauthorized assault on the body of the
dAORN Journal, May 1979,Vol29, No 6
1095
Use of shared services by hospitals increases The growth of shared services among hospitals across the country has increased significantly in the last three years, according to a survey by the American Hospital Association (AHA). “The number of hospitals reporting participation in shared service activities has increased by 20% since 1975, when the last survey was made,” said Alex McMahon, AHA president. “More than 80°/0 of the responding hospitals in the country now share one or more services,’’ he said. The survey was conducted at the end of 1978. McMahon continued, “The money that is being saved by hospitals through joint purchasing and other services is being measured in millions of dollars. It is one of the most effective ways that hospitals are working together to continue to provide quality care while reducing the rate of increase in total expense.” The ten most commonly shared services in 1978 were purchasing, electronic data processing, blood banking, laboratory services, education and training, laundry and linen, library services, biomedical engineering, credit union, and diagnostic radiology. The survey showed that among community hospitals the increased participationwas greater than that of hospitals in general. In 1978, 84% of responding community hospitals participated in shared services, while 63% participated in 1975. “This dramatic increase in shared services has evolved for a number of reasons, primarily because more and more hospital administrators are being convinced of the cost-effectiveness of sharing services,” said Robert Toomey, director of the AHA Center for Multihospital Systems and Shared Services Organizations. “It is also due to more aggressive marketing by shared service organizations and the growth of multihospital systems,” Toomey said. More than one-third of the nation’s hospitals are part of multihospital systems.
conversation about C.0.S.T. You’ve aroused my curiosity. What’s C.O.S.T.? How can it save my hospital money on suction tubing? C.O.S.T. stands for “Cutting Overhead on Suction Tubing.” It’s a complete program of analysis, education and economy that lets your hospital cut tubing costs without cutting performance. How does your program operate? First, !’I1do a professional assessment of all tubing requirements throughout your hospital. Next, I’ll analyze the data. Then, I’ll present you with an action plan which includes actual dollar savings, where possible. Give me some examples. I’ll show you where you can use nonconductive tubing in place of conductive. I’ll show you where you can safely substitute clean, non-sterile tubing for sterile. And I’ll show you where you can switch from pre-cut lengths to more economical bulk tubing. In fact, there are lots of ways to cut your tubing costs. I’ll detail all of them for you in my formal C.O.S.T. presentation. This is very interesting. You’re actually telling me how to cut costs on tubing. Yet Davol sells tubing. What’s the catch? None whatsoever. Davol believes in cost containment as much as you do, and we’re willing to prove it. Our C.O.S.T. program-which doesn’t cost you a cent, by the way-will show you exactly how to get the best value for your tubing dollar.
n
Davol’s C.0. S .T.
works. OR Supervisors: You can get your free C.O.S.T. analysis at once. Simply ask your Davol representative. Or, write to: Davol C.O.S.T. Containment Program Davol Inc. Cranston, R. 1. 02920
1096
AORN Journal, Ma y 1979,Vol29, No 6
patient. Since the person most directly involved in the performance of the operation is the surgeon, the responsibility for demonstrating the consent of the patient rests squarely with the surgeon. When a nurse or other person delegated by the surgeon executes the surgeon’s order and obtains the patient‘s signature on the consent form, the person executing the order is acting as the agent for the surgeon and not independently of the surgeon. That beingthe case, the responsibility for the validity of the consent remains as intimately that of the surgeon as if he himself obtained the consent from the patient in writing. A distinction must be made between obtaining the informed consent (the physician’s responsibility) and the task of getting the consent form actually signed (a duty properly delegated to the nurse). The primary duty of informing the patient and thereby obtaining the consent of the patient cannot be delegated from physician to nurse, legally speaking. What can be delegated to a nurse by a physician is the function of having the informed patient sign the hospital-approved consent form.
Q If medical staff regulations relative to operating privileges are broken by a surgeon, can the surgeon thereafter legally operate or must the case be postponed? Some surgeons in my hospital argue that as long as they are licensed, have their surgical boards and their hospital appointments, they can operate within their specialty “regulations or no regulations.”
A
There are several ways in which a surgeon can lose his privilege to operate in any accredited hospital. When this happens as a result of an infraction of medical staff regulations relative to the completion of charts, the suspension has no bearing on the surgeon’s clinical ability. An operation performed while the surgeon is suspended will not endanger the patient‘s safety even though it may be a breach of hospital rules. On the other hand, a surgeon may have his privileges suspended or revoked as a result of evidence that he is not performing surgery competently or in accordance with the privileges granted to him in connection with his medical staff appointment.
1098
In the instance of incomplete records, it is not altogether unusual for misunderstandings and lack of communication to result in a surgeon presenting himself scrubbed and ready to operate upon a patient who has been premedicated and anticipates imminent surgery. in such a case, the hospital regulation relating to the automatic suspension because of incomplete medical records is often relaxed to permit the scheduled operation to be performed with the understanding that any further surgery, other than an emergency, will be deferred untilthe physician has complied with the medical record-keeping regulation. Where clinical incompetence is involved, suspension or revocation of surgical privileges related to clinical inadequacies on the surgeon’s part must be strictly enforced. When an emergency situation presents itself, substitute surgical assistance must be procured. The errant surgeon must not be permitted to perform surgery until the causes relatingto his surgical suspension or revocation have been removed.
Q The patient had been scheduled for an aorta femoral bypass graft. On the morning of surgery, the procedure was changed on the master schedule to amputation of the gangrenous toes. Since premedications are given at 7 am, the chart was checked for permit and premedication time. It was discovered that premedication was given at 6:45 am and consent for amputation was signed at 7 am. When the question was raised regardingthe ability of the patient to give a voluntary consent while medicated, the chief of surgery said the consent was valid. Could the OR supervisor, who permitted surgery to proceed, be held liable if the patient later repudiatedthe consent saying he was “drugged”?
A
The chief of surgery apparently weighed the necessity for the prompt amputation of gangrenous toes against the possible risk that the patient might later repudiate the signed consent form, arguing that he had signed the form 15 minutes after receiving premedication. Someone had to make a decision as to the probable validity of the informed consent and it was appropriate that this decision was made by the chief of surgery. The determination of the patient’s relative degree of consciousness
AORN Journal, May 1979,Vol29, No 6
and alertness could most appropriately be made by a physician under the circumstances described above. The OR supervisor who permitted the surgery to proceed would have an adequate legal defense by indicating that he or she deferred to the medical judgment of the chief of surgery as to the emergency nature of the surgery. If surgery had been delayed another 24 hours, the patient might have lost more than his toes. As the degree of urgency and risk increases, the relative necessity for prior informed written consent decreases to the point where, faced with imminent danger to the life of the patient or rapid deteriorationof a condition, prioritiesdictate that surgery be performed in the absence of any direct evidence of refusal of surgery by the patient. Inthis case, urgency dictated the decision to proceed. The legal justification: life-saving surgery.
tion-proof an environment in the operating room as is reasonably possible. When the OR supervisor discovers a source of potential infection, reasonable measures must be taken to rectify the problem as soon as possible. In the situation described above, it appears that the OR supervisor was unsuccessful in prevailing upon the surgeon to improve his sterile technique. Faced with this problem, the OR supervisor would be expected to follow established hospital reporting procedures exactly. Such procedures should include referring the problem both to the nursing service administrationand viathat office to the office of the chief of surgery for internal resolutionof the problem within the department of surgery. She should make her report in writing and keep a copy for her own records.
William A Regan, JD
Q Is the OR supervisor likelyto be successfully sued if a patient develops a postoperative infection probably due to poor sterile technique of the surgeon who refuses to change gown, gloves, or otherwise to improve his sterile technique when the OR supervisor requests him to do so? From a legal point of view, how should the OR supervisor handle this kind of disciplinary problem in the OR?
A
One of the classic responsibilities of the OR supervisor is to take whatever steps he or she feels are warranted to maintain as infec-
Managing partner Regan, Carberty, Flynn, and Gelineau Providence, RI
If you have questions on OR nursing law you would like answered, please send them to William A Regan, JD, c/o AORN Journal, 10170 E MississippiAve, Denver, Colo 8023 1. Questions of general interest will be selected for replies in this column. Other questions will not be answered. Questions will not be acknowledged or returned.
Report measures gains in Indian health care A new statistical report by the Indian Health Service of the US Department of Health, Education, and Welfare measures progress in reducing death and disease among American Indians and Alaskan Natives. Data collection by the Service began in 1955. The report states the death rate for infants in 1975 had been reduced 71% from 20 years earlier. In the same period the death rate due to gastroenteric causes declined by 88%, and deaths from influenza and pneumonia were reduced by 63%. The health status of American Indians
and Alaskan Natives, however, continues to lag behind that of the general population, the report said. Among special problems are alcoholism and death and injury from accidents. The Indian Health Service operates hospitals and clinics in 25 states, in addition to preventive health, environmental health, mental health, and other programs. Copies of the report Indian Health Trends and Services are available from the Indian Health Service, Health Services Administration, 5600 Fishers Lane, Rockville, Md 20857.
AORN Journal, May 1979,Vol29, No 6
1099