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When videotaping is done in the OR, who is responsible for operating the equipment?
DECEMBER 1984, VOL 40,NO 6
AORN JOURNAL
OR Nursing Law When videotaping is done in the OR, who is responsible for operating the equipment?
Q
What are the legal implications of videotaping in the operating room? Who owns the t a p ? Some physicians have purchawd equipment, have it installed in the OR, and want to keep the videotapes. Do they own the tapes or does the hospital? Must the patient give written permission for the taping? Who keeps the t a p and keeps records of them-the OR, or medical records? Can the videotap be used as court exhibits in litigation? Because the circulating n w is the only one in the OR not in sterile gown and gloves, is she responsl’ble for operating the videotape equipment? If so, what are the liabilities for eDsuring the full procedure is on tape, and for turning the equipment on or off at inkrvak as requested by the surgeon? If the surgeon o m the equipment installed in the OR, who must maintain it and make sure it is safe for OR use?
AYour handled
questions raise many legal issues that are best by consulting your hospital attorney. Issues of patient privacy and the use of videotapes as evidence Mer fiom state to state. The following discussion is intended only to hghhght some of these issues. When the physician buys the equipment and requests instabtionin the OR, ownership, operation, and maintenance mponsiities should be negotiated and agreed to by the physicians and the hospital. The hospital is responsible for providmg a safe environment and thus is responsible for assuring that the equipment is safe for use in the OR The role of the circulator in operating the equipment must not compromise the ability to provide patient care. Your other questions depend to some extent on
the purpose of videotaping. Is the primary purpose of the videotape to assist in the patient’s oire; ie, to document the extent of pathology or mobility impairment to use as a compluison base line at some time in the future? Or is the tape for the physician’s personal use? If the videotape is related to the patient’s care, it should be treated as a part of the medical record, and m r d e d and stored accordmgly. If the tape is to be used for purposes unrelated to the particular client‘s care, thme procedures may not be necessary, but patient privacy becomes a greater concern. Most states recognize a general nght to privacy, the violation of which is an actionable tort. The Supreme Judicial court of Maine upheld a patient‘s right to refuse to be photographed, even though the photographs were only available to “appropriate hospital personnel”(Ekfa& of Berthihme v h g 365 A2d 792(Me 1976)). In that case, which was not a medical malpractice case, the wife of the deceased patient sUCCeSSfllUy sued the surgeon for taking the patient’s photograph. The patient had had a laryngectomy and radical neck disction. The court approvingly quoted a Pennsylvania court in saying that “an individual has the nght to decide whether that which is his shall be given to the public and not only to restrict and limit but to also withhold absolutely...from all dissemination. The facial characteristics or p e a h cast of one’s features, whether n o d or distorted,belong to the individual and may not be reproducedwithout his permission.” The patient should give consent prior to videotaping and the consent should include the purpose of the videotaping. Patients may be willing to consent to bemg videotaped for the physician’s
d) 917
AORN JOURNAL
private files, but unto grant permission for widespread use of the tape. Whether or not videotapes can be i n t r o d d as exhibits in court will depend on the court‘s rules of evidence. The rules which apply to photographs also apply to motion pictures, induding videotapes (&l v Skzmfid HoqxW 430 A2d l(C0nn 1980)). If it is even to be considered for possible introduction, the videotape must be authenticat& that is, the judge must be convincedthat the tape is what it is purported to be. courts have admitted videotapes as exhibits, but because vi-pes are easily edited, proper authentication is crucial. If use in litigation is planned or foreseen, the hospital attorney should be consulted for advice on recordingand storage procedures necessary to allow for authentication at a later date. Even if the tape is authenticated, it will not be admitted unless the judge is convinced that its use will be iostructive rather than confusiug and that the potential of the tape to assist the jury outweighs any natural effect it may have to arouse sympathy.
e
Is there a “law“ that r e q d an RN to remain in the operating room at all times? We have a po cy at our hospital requiring that the circulating nurse remainin the room. With recent Staffshortages, however, the nurses have found it necessary to run for supplies. Although they are gone only a few minutes, I am concerned that if something happens to the patient during this time, the nurse will be held liable. On the evening shift, the nurse has no one to do the running,and I fear she is in a potentially dangerous situation.
A
There may not be a “law“ as such that requires the circulator to remain in the OR at all times. Depending on the circumstances, though, the circulating nurse can be found negligent for Mure to remain with the patient if he is injured during her absence and if the injury could have been prevented had the circulator been present Such was the case in a California appellate court decision (Czubinsky voocror’sHqital 139 CalApp3d 361, 188 CalRptr 685(Cal App 1983)). In that case, the circulating nurse left the room while the patient was emerging h m anesthesia after an otherwise uneventful ovarian cystedomy. The
DECEMBER 1984, VOL 40,NO 6
circulator left the room in response to a request by the surgeon to assist him in the next room, where he had started another case. The circulator testified that she told the surgeon that she muld not leave the patient, but she nonetheless departed. The circulator conceded that the patient was at a critical point in the immediate postoperative period; she defended her leaving because she was “being yelled at” During her absence, the patient armted. The OR technician left the room to seek help, but was gone for two to three minutes before returning. The an&esiologit was alone as he attempted to resuscitate the patient The patient .SUE& severe cerebral anoxia resulting in permanent and total paralysis. At the time of the trial,the patient remained
&conlam. The appellate court upheld the jury‘s decision that it was the circulator‘s duty to remainwith the patient until she was transferred to the recovery room and that it was a breach of duty for the nurse to leave the uncobous patient‘s side. The court based this decision on the circulator‘s teStimany and the hospital‘s procedure manual. The manual provided that the circulator ”is also the member of the team who will be on hand to assist the anesthesiologist during the entire procedure.” The court also noted that themanualdirectedthatsatisfactory performance in the OR required “a wiUingnessto uphold principles regardless of opposition fiom any source.” The court also found that the nurse’s absence was a proximate and &bent cause of the patienrs injuries. ”Her presence and skill should have led to the prompt observationof thep r e l i m i warning ~~~ signs of vital function fidures” and she could have asshed the anesrhesiologkt with CPR while the OR technician went for help. Her absence was “a prime reason why effective CPR was unavailable and therefore an immediate,direct and effective cause of Czubinsky’s brain damage.= Does this decision mean that the circulator will be liable for whatever happens to the patient during her absence? Not mcemdy. The absent circulator’s potential liability will depend on the reasons for her absence and leagth of her absence. If her absence was related to care of the patient and she had taken reasonable care to anticipate the patient’s needs, it is less likely the absence would be judged negligent
AORN JOURNAL
DECEMBER 1984, VOL 40, NO 6
For example, if the circulator is occasionally out of the room to replace a supply that had been contaminated, it is very unlikely that her absence would be considered negligent. & however, she is frequently out of the room to get supplies that could and should have been anticipated, courts may be less willing to believe her absence was necessary for the care of the patient. The circulator's choice of when to leave the room might also be considered. Absence during anesthesia induction or emergence, or during a critical point in the operation (eg,clipping an aneurysm) would be viewed differently than absence during less critical times. The Chinsky court also suggested that an emergency situation in another room would be considered authorhation for the circulator's absence from a room where an emergency did not exist. Besides looking at the purpose of the circulator's absence and weighing whether it was reasonable to be absent at that time for that purpose, a court must consider whether the circulator's absence cawed or exacerbated the injury, or conversely, whether her presence would have prevented the injury or provided more prompt recognition and treatment of a potential problem. For example, if a patient arrested during the circulator'sabsence, the circulator would not be liable unless it could be shown that her presence could have prevented the arrest or that faster treatment would have prevented complicating sequelae. If your hospital's policy absolutely requires the circulator to remain in the room, you might suggest that it be changed to reflect the reality that sometimes the circulator's absence may be necessary. Staf6ng deckiom, such as on your evening shift, are the responsibility of the hospital. You are mponsiile for alerting management of your concerns and of the implications of management decisions on patient care from your W-hand observations.Having done so, this aspect is no longer your problem. Should an injury OCCUT on this shiy the jury could consider whether the hospital met its duty to provide adequate staff. The nurses working this shift would have their actions judged in light of what a reasonable nurse would have done under similar Cinwnstances (ie, no aide or runner). ELLENK M w m , Ms, JD,CNOR
New Consultative Specialist
JuneERimrrls
June E Ricards is a new consultative specialist at AORN Headquarters. Her mponsil'bilities include providing consultation services in the following three areas: technical problem solving, infection control, and personnel management. She also works with continuing education in outlining new classes and teachug existing classes about the aforementioned three areas, plus writing articles about the same. Ricards is well qualitid for this position. She r e ceived her BSN from California State College, Bakersfield, has 18 years operating room experience with 15 of those years in OR management, and has had four years' experience in nufsing service administration. Most recently, she held an OR management position at St Vincent's Hospital, Bihgs, Mont. AORN welcomes Ms. Ricards.
MILWAUKEE, WIS 921
AORN JOURNAL
OR Nursing Law When videotaping is done in the OR, who is responsible for operating the equipment?
Q
What are the legal implications of videotaping in the operating room? Who owns the t a p ? Some physicians have purchawd equipment, have it installed in the OR, and want to keep the videotapes. Do they own the tapes or does the hospital? Must the patient give written permission for the taping? Who keeps the t a p and keeps records of them-the OR, or medical records? Can the videotap be used as court exhibits in litigation? Because the circulating n w is the only one in the OR not in sterile gown and gloves, is she responsl’ble for operating the videotape equipment? If so, what are the liabilities for eDsuring the full procedure is on tape, and for turning the equipment on or off at inkrvak as requested by the surgeon? If the surgeon o m the equipment installed in the OR, who must maintain it and make sure it is safe for OR use?
AYour handled
questions raise many legal issues that are best by consulting your hospital attorney. Issues of patient privacy and the use of videotapes as evidence Mer fiom state to state. The following discussion is intended only to hghhght some of these issues. When the physician buys the equipment and requests instabtionin the OR, ownership, operation, and maintenance mponsiities should be negotiated and agreed to by the physicians and the hospital. The hospital is responsible for providmg a safe environment and thus is responsible for assuring that the equipment is safe for use in the OR The role of the circulator in operating the equipment must not compromise the ability to provide patient care. Your other questions depend to some extent on
the purpose of videotaping. Is the primary purpose of the videotape to assist in the patient’s oire; ie, to document the extent of pathology or mobility impairment to use as a compluison base line at some time in the future? Or is the tape for the physician’s personal use? If the videotape is related to the patient’s care, it should be treated as a part of the medical record, and m r d e d and stored accordmgly. If the tape is to be used for purposes unrelated to the particular client‘s care, thme procedures may not be necessary, but patient privacy becomes a greater concern. Most states recognize a general nght to privacy, the violation of which is an actionable tort. The Supreme Judicial court of Maine upheld a patient‘s right to refuse to be photographed, even though the photographs were only available to “appropriate hospital personnel”(Ekfa& of Berthihme v h g 365 A2d 792(Me 1976)). In that case, which was not a medical malpractice case, the wife of the deceased patient sUCCeSSfllUy sued the surgeon for taking the patient’s photograph. The patient had had a laryngectomy and radical neck disction. The court approvingly quoted a Pennsylvania court in saying that “an individual has the nght to decide whether that which is his shall be given to the public and not only to restrict and limit but to also withhold absolutely...from all dissemination. The facial characteristics or p e a h cast of one’s features, whether n o d or distorted,belong to the individual and may not be reproducedwithout his permission.” The patient should give consent prior to videotaping and the consent should include the purpose of the videotaping. Patients may be willing to consent to bemg videotaped for the physician’s
d) 917
AORN JOURNAL
private files, but unto grant permission for widespread use of the tape. Whether or not videotapes can be i n t r o d d as exhibits in court will depend on the court‘s rules of evidence. The rules which apply to photographs also apply to motion pictures, induding videotapes (&l v Skzmfid HoqxW 430 A2d l(C0nn 1980)). If it is even to be considered for possible introduction, the videotape must be authenticat& that is, the judge must be convincedthat the tape is what it is purported to be. courts have admitted videotapes as exhibits, but because vi-pes are easily edited, proper authentication is crucial. If use in litigation is planned or foreseen, the hospital attorney should be consulted for advice on recordingand storage procedures necessary to allow for authentication at a later date. Even if the tape is authenticated, it will not be admitted unless the judge is convinced that its use will be iostructive rather than confusiug and that the potential of the tape to assist the jury outweighs any natural effect it may have to arouse sympathy.
e
Is there a “law“ that r e q d an RN to remain in the operating room at all times? We have a po cy at our hospital requiring that the circulating nurse remainin the room. With recent Staffshortages, however, the nurses have found it necessary to run for supplies. Although they are gone only a few minutes, I am concerned that if something happens to the patient during this time, the nurse will be held liable. On the evening shift, the nurse has no one to do the running,and I fear she is in a potentially dangerous situation.
A
There may not be a “law“ as such that requires the circulator to remain in the OR at all times. Depending on the circumstances, though, the circulating nurse can be found negligent for Mure to remain with the patient if he is injured during her absence and if the injury could have been prevented had the circulator been present Such was the case in a California appellate court decision (Czubinsky voocror’sHqital 139 CalApp3d 361, 188 CalRptr 685(Cal App 1983)). In that case, the circulating nurse left the room while the patient was emerging h m anesthesia after an otherwise uneventful ovarian cystedomy. The
DECEMBER 1984, VOL 40,NO 6
circulator left the room in response to a request by the surgeon to assist him in the next room, where he had started another case. The circulator testified that she told the surgeon that she muld not leave the patient, but she nonetheless departed. The circulator conceded that the patient was at a critical point in the immediate postoperative period; she defended her leaving because she was “being yelled at” During her absence, the patient armted. The OR technician left the room to seek help, but was gone for two to three minutes before returning. The an&esiologit was alone as he attempted to resuscitate the patient The patient .SUE& severe cerebral anoxia resulting in permanent and total paralysis. At the time of the trial,the patient remained
&conlam. The appellate court upheld the jury‘s decision that it was the circulator‘s duty to remainwith the patient until she was transferred to the recovery room and that it was a breach of duty for the nurse to leave the uncobous patient‘s side. The court based this decision on the circulator‘s teStimany and the hospital‘s procedure manual. The manual provided that the circulator ”is also the member of the team who will be on hand to assist the anesthesiologist during the entire procedure.” The court also noted that themanualdirectedthatsatisfactory performance in the OR required “a wiUingnessto uphold principles regardless of opposition fiom any source.” The court also found that the nurse’s absence was a proximate and &bent cause of the patienrs injuries. ”Her presence and skill should have led to the prompt observationof thep r e l i m i warning ~~~ signs of vital function fidures” and she could have asshed the anesrhesiologkt with CPR while the OR technician went for help. Her absence was “a prime reason why effective CPR was unavailable and therefore an immediate,direct and effective cause of Czubinsky’s brain damage.= Does this decision mean that the circulator will be liable for whatever happens to the patient during her absence? Not mcemdy. The absent circulator’s potential liability will depend on the reasons for her absence and leagth of her absence. If her absence was related to care of the patient and she had taken reasonable care to anticipate the patient’s needs, it is less likely the absence would be judged negligent
AORN JOURNAL
DECEMBER 1984, VOL 40, NO 6
For example, if the circulator is occasionally out of the room to replace a supply that had been contaminated, it is very unlikely that her absence would be considered negligent. & however, she is frequently out of the room to get supplies that could and should have been anticipated, courts may be less willing to believe her absence was necessary for the care of the patient. The circulator's choice of when to leave the room might also be considered. Absence during anesthesia induction or emergence, or during a critical point in the operation (eg,clipping an aneurysm) would be viewed differently than absence during less critical times. The Chinsky court also suggested that an emergency situation in another room would be considered authorhation for the circulator's absence from a room where an emergency did not exist. Besides looking at the purpose of the circulator's absence and weighing whether it was reasonable to be absent at that time for that purpose, a court must consider whether the circulator's absence cawed or exacerbated the injury, or conversely, whether her presence would have prevented the injury or provided more prompt recognition and treatment of a potential problem. For example, if a patient arrested during the circulator'sabsence, the circulator would not be liable unless it could be shown that her presence could have prevented the arrest or that faster treatment would have prevented complicating sequelae. If your hospital's policy absolutely requires the circulator to remain in the room, you might suggest that it be changed to reflect the reality that sometimes the circulator's absence may be necessary. Staf6ng deckiom, such as on your evening shift, are the responsibility of the hospital. You are mponsiile for alerting management of your concerns and of the implications of management decisions on patient care from your W-hand observations.Having done so, this aspect is no longer your problem. Should an injury OCCUT on this shiy the jury could consider whether the hospital met its duty to provide adequate staff. The nurses working this shift would have their actions judged in light of what a reasonable nurse would have done under similar Cinwnstances (ie, no aide or runner). ELLENK M w m , Ms, JD,CNOR
New Consultative Specialist
JuneERimrrls
June E Ricards is a new consultative specialist at AORN Headquarters. Her mponsil'bilities include providing consultation services in the following three areas: technical problem solving, infection control, and personnel management. She also works with continuing education in outlining new classes and teachug existing classes about the aforementioned three areas, plus writing articles about the same. Ricards is well qualitid for this position. She r e ceived her BSN from California State College, Bakersfield, has 18 years operating room experience with 15 of those years in OR management, and has had four years' experience in nufsing service administration. Most recently, she held an OR management position at St Vincent's Hospital, Bihgs, Mont. AORN welcomes Ms. Ricards.
MILWAUKEE, WIS 921