- Email: [email protected]
When is the RN first assistant practicing within the scope of nursing?
AUGUST 1984, VOL 40. NO 2
AORN JOURNAL
OR Nursing Law When is the RN first assistant practicing within the scope of nursing?
Q
I am an OR nurse and work daily with open heart surgery cases. I scrub as well as circulate. On occasion I have had to assist the surgeon put the patient on bypass, cannulate the right atrium, and cut suture on a moving heart while his assistant is dissecting the saphenous vein. Once, while attempting to assist the surgeon from his right side, the appendage of the heart tore. He excitedly blamed me for the damage. This same surgeon allows his assistant to leave the mom to go to lunch and expects one of the scrub nurses (we have two on each case) to take the place of the assistant. How liable are we, if something happens while we are assisting?My supervisor states our policy is to “assist” the surgeon, not just pass instruments.
A
The extent of your liability if a patient was
injured while you were assisting would depend on a variety of factors. These factors will differ because of difference in state laws and policies from operating mom to operating room. Influencing factors include: whether assisting is found to be an activity within the definition of nursing practice in your state; what kinds of activities are included as “assisting” and are these the kind of activities a reasonable surgeon would delegate to a nonphysician assistant; and do the nurses who assist have the education and training to do so safely. The complexity of the legal issues presented by the nurse as first assistant require more than a several paragraph response. This column will deal exclusively with the scope of nursing prac2S6
tice issue. Next month’s column will deal with delegation and training issues. The nurse practice act is a statute passed by the state legislature, and it defines what constitutes nursing in your state. States ’ definitions of nursing vary in content, specificity, and length. In some states, eg, Wisconsin and Ohio, the statutory definition of nursing is one paragraph long; in others, eg, Florida. it is several pages. As of 1982, no state’s nurse practice act had specifically addressed first assisting as either an authorized or unauthorized nursing activity, The act *s silence on the issue can be construed differently. If the act includes some authority in accepting delegated medical acts or contains an other acts clause, some would argue that nurses may functionas assistants because the state nurse practice act does not say they cannot. Others would argue that nurses may not function as assistants because nothing in their nurse practice acts says they can. Also, each statute must be read within the context of all the other statutes in that state. All states also have a statute that defines the practice of medicine and provides penalties for unlicensed physicians who undertake activities that are considered the practice of medicine. Therefore, the nurse practice act must also be read within the context of the medical practice act. The desirability of having a specific approval/disapproval of nurses as first assistants in the nurse practice act is debatable. A specific yes or no from the legislature would be beneficial in that the uncertainty would be cleared. However, a statutethat says yes or no on a specific practice
AUGUST 1984, VOL 40, NO 2
also functions to freeze the status quo. That is, no changes in that nursing practice could evolve without legislativeapproval. Convincingthe legislature to change the law is an unwieldy process that is not amenable to keeping pace with the rapid advancements in nursing science. Requesting legislative approval of every variation in nursing practice also has the effect of allowing legislators, most of whom are not nurses, todirectly control nursing practice. Most nurses agree this would not be a desirable situation. Most legislators also agree such direct control would not work because they lack the inclination, expertise, or time to provide such specificity to every area of legislative concern. Because direct legislative control of nursing issues is neither workable nor desirable, every state’s nurse practice act also provides for the establishmentof a board of nursing. The board of nursing then handles the more specific concerns regarding nursing practice. The exact composition of the board of nursing varies from state to state, but all have registered nurses as members. Some also include licensed practical nurses, physicians, and/or consumers as members. Legislatures delegate “rule-making authority” to boards of nursing. This means the board of nursinghas the authority to make rules to more specifically implement and enforce the nurse practice act. These rules have the force of law and are published in state administrativecodes or as administrative agency rules. These rules, while more specific than the nurse practice act, still tend to be sufficiently broad so as to be applicable to all the nurses in the state. The board of nursing can decide whether or not to address nurses as first assistants within the board’s rule-making authority. If the board decides RNs may function as first assistants, the board may choose to develop guidelines for this practice, as in Idaho, or it may choose to direct institutions using RNs as first assistants to develop their own policies for the practice. Attorney general opinions are another possible source of guidance as to whether first assisting is covered by that state’s nurse practice act. Attorney general opinions do not have the force of law, but can be influential should a law-
AORN JOURNAL
making body consider the issue in the future. Presently, state boards of nursing have taken widely varied positions on whether the activities of the surgeon’s assistant are within the scope of nursing practice. Many state boards have not addressed the issue at all. For these states, the legality of the practice is uncertain because a formal decision has not been made. Institutions in these states that want nurses to function as first assistants should seek legal counsel as to the probable interpretation of the practice before initiating the practice. If you decide to proceed, you should have clear policies about the practice. The medical, nursing, and administrativedepartments must be aware that the practice is going on. The OR nurses and surgeons must be aware of what guidelines and procedures are sanctioned by the institution. The nurse’s and employer’s insurance carrier(s) should also be advised of the practice and the carrier’scoverage of the practice clarified. Some states’ nursing boards have discussed the issue, but have not made a formal ruling. The lack of a ruling has been interpreted in some states to mean nurses may first assist because lack of a specific legal position means practices and standards may be set by institutional policy (New York, Hawaii, Kansas). In other states, the lack of a ruling means nurses may not assist because there is no specific legal authority for them to do so (Texas). Of the states that have made a formal ruling, some have decided nurses may first assist because the practice is considered an expanded nursing role (California) or because the practice is an acceptabledelegated medical function (Oklahoma, South Carolina). Still other state boards have made a formal ruling that first assisting is not permissibleas a nursing functionbecause it is solely a medical function (F‘ennsylvania, Kentucky). The OR nurse must determine if first assisting is consideredwithin the scope of nursingpractice in the state where he or she works. If a nurse functions as a first assistant in a state that has determined, or may determine, that first assisting is not within the scope of nursing practice,
d) 257
AORN J O U R N A L
several consequences may result. Malpractice insurance policies @ersonal and employers’) may no longer provide coverage. In the event of a malpractice suit, the nurse would be held to the standard of care applicableto physiciansbecause the statute sees the nurse as taking on a physician’s function. It is possible the nurse could be charged with the unauthorized practice of medicine. You can find out your state board’s position by contacting the board. Request copies of all relevant guidelines. qualifications. or other restrictions they may have developed. Work with your medical, nursing, and administrative staffs to implement policies for your OR that reflect the board’s position and incorporate those guidelines and restrictions. If your state board has not taken a position, you will need to decide whether you prefer to live with the ambiguity or wish to request a formal ruling. This decision should not be made without conferring with legal counsel and political strategists as to the relative risks and benefits of pressing for a ruling. For example, you may decide proceeding with uncertainty is preferable to a firm ruling that differs from what you desire. If you decide to request a board ruling or wish to attempt to influence the board to change or qualify a previous position, you should be pqpared to marshal the resources needed to influence the decision. Do not take this on alone. Talk with other OR nurses in the state to reach a consensus and presert a unified position. You may also wish to contact your state nurses association for assistance to plan strategy and lobbying efforts. ELLEN K MURPHY, MS, JD, CNOR BROOKLYN.Wrs Suggested nuding
American Nurses Association. The Nursing Practice Act: Suggested State Legislation. Kansas City, Mo: American Nurses’ Association. 1981. “Survey shows state board position on first assistant.” AORN Journal 37 (Fehary 1983) 428-436. Questions on OR nursing law can be sent to Ellen K Murphy, JD, CIO AORN Journal. 10170 E Mississippi Ave, Denver, CO 80231.
260
AUGUST 1984. VOL 40, NO 2
Balloon Implant in Brain Saves Child’s Life A physician at the University of Connecticut
Health Center implanted a special balloon inside a six-week-old boy’s brain to block a fBtula that was depriving half his brain of vital blood. Bruce C Zablow, MD, a University of Connecticut assistant professor of radiology, performed the procedure Feb 10 on the 1 1 lb, 8 oz child. This was believed to be the youngest and smallest patient to undergo such surgery, The boy was determined by CT (computerizedtomography) scan to have an intracerebral hemonhage. Dr Zablow discovered through cerebral angiography that the arterial blood flow to the right half of the patient’s brain was being diverted, shunted through an abnormal fistula between an artery and a vein in the brain. Blood was retuming prematurely to the heart and lungs. In the OR, Dr Zablow inserted a 0.07-inch diameter catheter into the child’s femoral artery. Guiding it with a fluoroscope, Dr Zablow threaded the catheter past arteries, through the aorta, the common and external carotid arteries and then into the abnormal arterial branch in the brain. It was stopped by the physician just short of the defective connection. “Then,” Dr Zablow related, “I inserted the balloon catheter-about .04of an inch in diameter-through the larger catheter and placed the balloon into the fistula. ” Normal circulation was restored once the balloon was inflated to .16 of an inch. The balloon was sealed and detached, left permanently in place, and filled with a radiopaque substance. This fluid will gradually drain into the blood and be harmlessly excreted, according to Dr Zablow. Using the balloon as a nucleus, the body will build a permanent barrier around it, preventing the recurrence of abnormal blood flow.
AORN JOURNAL
OR Nursing Law When is the RN first assistant practicing within the scope of nursing?
Q
I am an OR nurse and work daily with open heart surgery cases. I scrub as well as circulate. On occasion I have had to assist the surgeon put the patient on bypass, cannulate the right atrium, and cut suture on a moving heart while his assistant is dissecting the saphenous vein. Once, while attempting to assist the surgeon from his right side, the appendage of the heart tore. He excitedly blamed me for the damage. This same surgeon allows his assistant to leave the mom to go to lunch and expects one of the scrub nurses (we have two on each case) to take the place of the assistant. How liable are we, if something happens while we are assisting?My supervisor states our policy is to “assist” the surgeon, not just pass instruments.
A
The extent of your liability if a patient was
injured while you were assisting would depend on a variety of factors. These factors will differ because of difference in state laws and policies from operating mom to operating room. Influencing factors include: whether assisting is found to be an activity within the definition of nursing practice in your state; what kinds of activities are included as “assisting” and are these the kind of activities a reasonable surgeon would delegate to a nonphysician assistant; and do the nurses who assist have the education and training to do so safely. The complexity of the legal issues presented by the nurse as first assistant require more than a several paragraph response. This column will deal exclusively with the scope of nursing prac2S6
tice issue. Next month’s column will deal with delegation and training issues. The nurse practice act is a statute passed by the state legislature, and it defines what constitutes nursing in your state. States ’ definitions of nursing vary in content, specificity, and length. In some states, eg, Wisconsin and Ohio, the statutory definition of nursing is one paragraph long; in others, eg, Florida. it is several pages. As of 1982, no state’s nurse practice act had specifically addressed first assisting as either an authorized or unauthorized nursing activity, The act *s silence on the issue can be construed differently. If the act includes some authority in accepting delegated medical acts or contains an other acts clause, some would argue that nurses may functionas assistants because the state nurse practice act does not say they cannot. Others would argue that nurses may not function as assistants because nothing in their nurse practice acts says they can. Also, each statute must be read within the context of all the other statutes in that state. All states also have a statute that defines the practice of medicine and provides penalties for unlicensed physicians who undertake activities that are considered the practice of medicine. Therefore, the nurse practice act must also be read within the context of the medical practice act. The desirability of having a specific approval/disapproval of nurses as first assistants in the nurse practice act is debatable. A specific yes or no from the legislature would be beneficial in that the uncertainty would be cleared. However, a statutethat says yes or no on a specific practice
AUGUST 1984, VOL 40, NO 2
also functions to freeze the status quo. That is, no changes in that nursing practice could evolve without legislativeapproval. Convincingthe legislature to change the law is an unwieldy process that is not amenable to keeping pace with the rapid advancements in nursing science. Requesting legislative approval of every variation in nursing practice also has the effect of allowing legislators, most of whom are not nurses, todirectly control nursing practice. Most nurses agree this would not be a desirable situation. Most legislators also agree such direct control would not work because they lack the inclination, expertise, or time to provide such specificity to every area of legislative concern. Because direct legislative control of nursing issues is neither workable nor desirable, every state’s nurse practice act also provides for the establishmentof a board of nursing. The board of nursing then handles the more specific concerns regarding nursing practice. The exact composition of the board of nursing varies from state to state, but all have registered nurses as members. Some also include licensed practical nurses, physicians, and/or consumers as members. Legislatures delegate “rule-making authority” to boards of nursing. This means the board of nursinghas the authority to make rules to more specifically implement and enforce the nurse practice act. These rules have the force of law and are published in state administrativecodes or as administrative agency rules. These rules, while more specific than the nurse practice act, still tend to be sufficiently broad so as to be applicable to all the nurses in the state. The board of nursing can decide whether or not to address nurses as first assistants within the board’s rule-making authority. If the board decides RNs may function as first assistants, the board may choose to develop guidelines for this practice, as in Idaho, or it may choose to direct institutions using RNs as first assistants to develop their own policies for the practice. Attorney general opinions are another possible source of guidance as to whether first assisting is covered by that state’s nurse practice act. Attorney general opinions do not have the force of law, but can be influential should a law-
AORN JOURNAL
making body consider the issue in the future. Presently, state boards of nursing have taken widely varied positions on whether the activities of the surgeon’s assistant are within the scope of nursing practice. Many state boards have not addressed the issue at all. For these states, the legality of the practice is uncertain because a formal decision has not been made. Institutions in these states that want nurses to function as first assistants should seek legal counsel as to the probable interpretation of the practice before initiating the practice. If you decide to proceed, you should have clear policies about the practice. The medical, nursing, and administrativedepartments must be aware that the practice is going on. The OR nurses and surgeons must be aware of what guidelines and procedures are sanctioned by the institution. The nurse’s and employer’s insurance carrier(s) should also be advised of the practice and the carrier’scoverage of the practice clarified. Some states’ nursing boards have discussed the issue, but have not made a formal ruling. The lack of a ruling has been interpreted in some states to mean nurses may first assist because lack of a specific legal position means practices and standards may be set by institutional policy (New York, Hawaii, Kansas). In other states, the lack of a ruling means nurses may not assist because there is no specific legal authority for them to do so (Texas). Of the states that have made a formal ruling, some have decided nurses may first assist because the practice is considered an expanded nursing role (California) or because the practice is an acceptabledelegated medical function (Oklahoma, South Carolina). Still other state boards have made a formal ruling that first assisting is not permissibleas a nursing functionbecause it is solely a medical function (F‘ennsylvania, Kentucky). The OR nurse must determine if first assisting is consideredwithin the scope of nursingpractice in the state where he or she works. If a nurse functions as a first assistant in a state that has determined, or may determine, that first assisting is not within the scope of nursing practice,
d) 257
AORN J O U R N A L
several consequences may result. Malpractice insurance policies @ersonal and employers’) may no longer provide coverage. In the event of a malpractice suit, the nurse would be held to the standard of care applicableto physiciansbecause the statute sees the nurse as taking on a physician’s function. It is possible the nurse could be charged with the unauthorized practice of medicine. You can find out your state board’s position by contacting the board. Request copies of all relevant guidelines. qualifications. or other restrictions they may have developed. Work with your medical, nursing, and administrative staffs to implement policies for your OR that reflect the board’s position and incorporate those guidelines and restrictions. If your state board has not taken a position, you will need to decide whether you prefer to live with the ambiguity or wish to request a formal ruling. This decision should not be made without conferring with legal counsel and political strategists as to the relative risks and benefits of pressing for a ruling. For example, you may decide proceeding with uncertainty is preferable to a firm ruling that differs from what you desire. If you decide to request a board ruling or wish to attempt to influence the board to change or qualify a previous position, you should be pqpared to marshal the resources needed to influence the decision. Do not take this on alone. Talk with other OR nurses in the state to reach a consensus and presert a unified position. You may also wish to contact your state nurses association for assistance to plan strategy and lobbying efforts. ELLEN K MURPHY, MS, JD, CNOR BROOKLYN.Wrs Suggested nuding
American Nurses Association. The Nursing Practice Act: Suggested State Legislation. Kansas City, Mo: American Nurses’ Association. 1981. “Survey shows state board position on first assistant.” AORN Journal 37 (Fehary 1983) 428-436. Questions on OR nursing law can be sent to Ellen K Murphy, JD, CIO AORN Journal. 10170 E Mississippi Ave, Denver, CO 80231.
260
AUGUST 1984. VOL 40, NO 2
Balloon Implant in Brain Saves Child’s Life A physician at the University of Connecticut
Health Center implanted a special balloon inside a six-week-old boy’s brain to block a fBtula that was depriving half his brain of vital blood. Bruce C Zablow, MD, a University of Connecticut assistant professor of radiology, performed the procedure Feb 10 on the 1 1 lb, 8 oz child. This was believed to be the youngest and smallest patient to undergo such surgery, The boy was determined by CT (computerizedtomography) scan to have an intracerebral hemonhage. Dr Zablow discovered through cerebral angiography that the arterial blood flow to the right half of the patient’s brain was being diverted, shunted through an abnormal fistula between an artery and a vein in the brain. Blood was retuming prematurely to the heart and lungs. In the OR, Dr Zablow inserted a 0.07-inch diameter catheter into the child’s femoral artery. Guiding it with a fluoroscope, Dr Zablow threaded the catheter past arteries, through the aorta, the common and external carotid arteries and then into the abnormal arterial branch in the brain. It was stopped by the physician just short of the defective connection. “Then,” Dr Zablow related, “I inserted the balloon catheter-about .04of an inch in diameter-through the larger catheter and placed the balloon into the fistula. ” Normal circulation was restored once the balloon was inflated to .16 of an inch. The balloon was sealed and detached, left permanently in place, and filled with a radiopaque substance. This fluid will gradually drain into the blood and be harmlessly excreted, according to Dr Zablow. Using the balloon as a nucleus, the body will build a permanent barrier around it, preventing the recurrence of abnormal blood flow.