7 Patient safety and legal issues in the PACU
Advance Directive: A written document recognized by state law that provides directions for care of a person in the event that the person is unable to make decisions on treatment choices. Advance directives include do not resuscitate orders, living wills, and durable power of attorney for health care.
Adverse Event: Any injury caused by medical care. Examples include postoperative surgical site infection or a drug reaction. Having an adverse event does not imply a medical error.
Advocacy: Acting on behalf of the patient in an effort to protect that person’s rights to make his or her own decisions. Nurses are expected to act as the patient advocate.
Assault: Involves a threat that causes the patient to be in fear of a physical injury. For example, saying “if you do not stay still I will put restraints on you” to a patient could lead to the charge of assault.
Battery: Involves unauthorized touching of a patient’s body, for example if a patient has a do not resuscitate order in place but cardiopulmonary resuscitation is performed on the patient. Everyone involved could be charged with battery
Civil Law: A type of law that is concerned with relationships among persons and the protection of a person’s rights. Violation of this type of law may cause harm to an individual or property, but no grave threat to society exists.
Confidentiality: A special relationship that exists between the patient and the perianesthesia nurse in which the information discussed is not shared with a third party who is not directly involved in the patient’s care. Disclosure of confidential information exposes the perianesthesia nurse to liability for invasion of the patient’s privacy and breech of confidentiality malpractice claims.
Consent: A voluntary act on the part of the patient to grant someone a type of care. Implied consent is not expressly written or spoken, but implied when circumstances exist that lead a reasonable person to believe that consent had been given, such as when the failure to act would result in injury (cardiopulmonary resuscitation needed). Expressed consent is either spoken or written and typically involves both.
Contract Law: A law that is concerned with enforcement of an agreement among private individuals.
Contributory Negligence: Used in medical malpractice when it is alleged that the patient’s actions or inactions contributed to the injury.
Criminal Law: A type of law that is concerned with relationships between individuals and governments and with acts that threaten society and its order; a crime is an offense against society that violates a law and is defined as a misdemeanor (less serious in nature) or a felony (serious in nature).
Damages: The sum of money a court or jury awards as compensation for a tort action. Damages can be broken down into general damages, which are given for intangible wrongs, such as pain and suffering, disfigurement, interference with ordinary enjoyment of life, and loss of consortium (marital services), that are inherent in the injury itself; special damages, which are the patient’s out-of-pocket expenses, such as medical care, lost wages, and rehabilitation costs; and punitive damages, which are the damages sought as punishment for those whose conduct goes beyond normal malpractice.
Defamation: Refers to damage caused to someone’s reputation. If the damaging information is written, the defamation is called libel; if it is spoken, it is called slander.
Defendant: A person who is accused of wrongdoing; in a malpractice claim, the defendant can be a perianesthesia nurse.
Defensive Charting: Extensive documentation that is accurate and factual in the medical record.
Deposition: Out-of-court oral testimony given under oath before a court reporter. The deposition can involve expert witnesses, fact witnesses, defendants, or plaintiffs and can be used to impeach (find inconsistencies or untruths) testimony in trials.
Disruptive, Unprofessional Behavior: Behavior that shows disrespect for others, such as verbal abuse. This behavior impedes the safe delivery of patient care. This behavior is not acceptable and needs to be reported to administrators.
Durable Power of Attorney for Health Care: This advance directive specifies who decides health care decisions for the patient if the patient is incompetent. The patient’s condition does not need to be terminal for this advance directive to be in effect. The durable power of attorney for health care must have been signed when the patient was competent, and it applies only to the health care decisions.
Ethics: The distinction between right and wrong based on knowledge, not just opinions. Ethics refers to what someone should do or the desired behavior.
Expert Witness: A person with specific knowledge, skills, and experience regarding a specific area, such as perianesthesia nursing, who testifies to the ultimate issue, such as: What was the duty or was the duty violated? Did the violation cause injury? What could the defendant have done to prevent the injury? Did malpractice occur?
Health Insurance: Portability and Accountability Act (HIPAA): This law was enacted to ensure privacy rights and describes how personal health information can be used and how a patient can obtain access to the information.
Human Factor: Safety problems that arise because of the interaction between people, technology, and work environments.
Impaired Nurse: A nurse who is unable to function effectively because of some type of substance abuse, such as alcohol, prescription drugs, and illegal drugs. If you know of an impaired nurse you should report this to your supervisor. Many state boards of nursing have programs in place to assist impaired nurses. Impaired nurses are a threat to patient safety.
Informed Consent: The patient’s approval (or that of the patient’s legal representative) to a specific care service; informed consent is a legal document. Informed consent can be waived for urgent medical or surgical intervention as long as this exception is so stated in an institutional policy. Types of consents are admission agreement, blood transfusion consent, surgical consent, research consent, and special consent, such as for the use of restraints, client photographs, organ donation, or autopsy. Proceeding without consent can lead to charges of battery or assault. A patient has a right to refuse informed consent. If this occurs make sure to document this. Nurses are only witnessing the signature.
Intentional Tort: Consequences of actions that can be reasonably foreseen, violate duty, or cause injury; in this case, an expert witness is not necessary to bring a case. The actions are closely related to criminal acts in that they involve more intent to do wrong. Types of intentional torts include assault, battery, and false imprisonment.
Interrogatory: The process of discovery of the facts regarding a case through a set of written questions exchanged through the attorneys that represent the parties involved in the case.
Invasion of Privacy: This can entail the disclosure of personal details of a patient, accessing patient’s medical records when not involved in the patient’s care or using a picture of a patient without their consent.
Jurisdiction: The court’s authority to accept or decide cases, which can be based on location or subject matter of the case.
Law: Perianesthesia nurses are governed by civil and criminal law when they are in the role as providers of services, employees of institutions, and private citizens. The types of laws are contract, civil, criminal, and tort. Law mandates behavior and it is written by experts and those in authority (e.g., legislators).
Liability: Proof of liability is described in Box 7-1.
Libel: Libel involves writing something that ruins a patient’s reputation.
Living Will: An advance directive that states what the patient wants if they become incompetent and terminal. The living will must have been written when the patient was competent.
Malpractice: Determined if the perianesthesia nurse owed a duty to the client and did not carry out that duty and the client was injured because the nurse failed to perform the duty. The elements of negligence are applied to the determination of malpractice, and usually an expert witness is used to establish standard of care and prove the violation resulted in injury. It involves the conduct of perianesthesia nurses that falls below the professional standard of care.
Minors: A patient who is under the legal age (usually 18 years) as defined by state statute and may not give legal consent; consent must be obtained by a parent or the legal guardian.
Near Miss: An event or a situation that did not lead to a patient injury. An example may be a nurse is about to administer a wrong medication to a patient, but realizes it and does not give the medication. Near misses need to be reported and investigated because they can be used to identify systematic issues.
Negligence: This is a tort that is the failure to provide care that a reasonable person ordinarily would provide in a similar circumstance. The elements that must be established to prove negligence are: (1) an established relationship, (2) the duty established by profession, and (3) a violation of that duty that results in injury.
Nurse Practice Act: A series of statutes that have been enacted by every state legislature to regulate the practice of nursing. In essence, the statutes define the scope of nursing practice and distinguish between nursing practice and medical practice; every professional nurse must review and understand the provisions of the Nurse Practice Act in the state or province in which the nurse works.
Patient’s Bill of Rights: A document of client rights that reflects acknowledgement of the client’s right to participate in one’s own health care, with an emphasis on client autonomy and several laws and standards that pertain to the client’s rights.
Plaintiff: The person who files the lawsuit and seeks damages for a perceived wrongdoing; usually the patient or the patient’s family.
Post hoc, ergo propter hoc: “After this, therefore because of this”; the theory of the injury has been bypassed as the injury occurred, and that by itself indicates a failure to do what was reasonable and prudent.
Quasi-Intentional Tort: This tort involves more intent than malpractice and includes invasion of privacy and defamation.
Res ipsa loquitur: “The thing speaks for itself.” This can be invoked in a medical malpractice case if the case meets the following four criteria or tests: (1) the injury is considered to occur only during failure to exercise ordinary care, skill, or diligence; (2) the injurious actions are under the exclusive control of the practitioner; (3) the patient makes no contribution to the injury; and (4) the reasons for the injury are more attributable to the nurse than to the patient. Allows post hoc reasoning. Some perianesthesia examples of this term would be a burn from improperly used equipment or a foreign body left in a patient from a procedure.
Slander: Stating something that is untrue that ruins the patient’s reputation.
Standards of Care: Standards based on various types of evidence as to what is reasonable and prudent behavior for a perianesthesia nurse (health care professional). These standards are usually outlined by the state or province Nurse Practice Acts. Standards are also established through nursing organizations, such as the American Society of PeriAnesthesia Nurses and the American Nurses Association. It is important to note that these standards reflect the minimum care.
Statute: Documented rules for living in a state (state law) or the United States (federal law) that are passed by state legislatures and by Congress.
Statute of Limitation: The time limit that patients have to bring a claim. If the patient fails to meet the statute of limitations, then the case cannot proceed. States differ on the time periods and when the statute starts. The statute can start at the time of the injury, when the patient discovers the injury or when the treatment for the injury stopped.
Tort Law: A civil wrong (not criminal), other than a breach in contract, in which the law allows an injured person to seek damages from the person who caused the injury.
Vicarious Liability: This term indicates that one party is responsible for the actions of another party. This type of liability often occurs with nurses working in a hospital.
The current spotlight on patient safety provides nurses with an opportunity and the moral responsibility to call for changes in health care facilities’ policies and operations that we know are detrimental to the safety of patients. The challenge is for all nurses to seize this opportunity. (Chapter 20a, p. 5)1
Perianesthesia units pose a variety of unique legal and patient safety issues for perianesthesia nurses. Legal issues and patient safety cannot be separated. Patient safety is a paramount concern for nurses, patients, and administrators. (Chapter 4 provides a more comprehensive review of patient safety and adds to the depth of understanding of patient safety concepts in perianesthesia nursing.) The perianesthesia nurse, as a licensed professional nurse, is subject to a set of standards that must be followed to practice nursing. These standards are those that a reasonable and prudent nurse would follow in the state of his or her practice. If the action of a perianesthesia nurse is not reasonable for a perianesthesia nurse and the action causes injury to the patient, a malpractice lawsuit may result. The aim of this chapter is to improve the legal knowledge of perianesthesia nurses and provide some guidance on some potential legal concerns of perianesthesia nurses.
Ethical values
Ethical values serve as the basis for many of the laws that affect nurses and their practice. These values include: beneficence, nonmaleficence, autonomy, justice, fidelity, and life.2 Each of these values are discussed briefly, along with some of the laws associated with them (see Chapter 8).
• Beneficence means to “do good.” Beneficence reflects the care given by nurses and other health care providers. Health care providers are mandated to provide care for patients. Failure to provide this care often leads to claims of malpractice.2
• Nonmaleficence refers to “do no harm.” Health care providers may be charged with violating this value through false imprisonment, battery, or assault. Slander and invasion of privacy are other examples.2
• Autonomy can also be thought of as freedom. Autonomy includes clinical issues of consent, advance directives, and transplant issues.2
• Justice entails fairness. Justice includes the enforcement of antidiscrimination and labor laws.2
• Fidelity is accountability on the part of the nurse and promotes truthfulness. Consent issues and confidentiality are incorporated under this value.2
• Life entails both the beginning and end of life. Ethics issues involving birth include abortion, stem cell research, and artificial insemination. Issues such as do not resuscitate (DNR), assisted suicide, and quality of life encase some of the values at the end of life.2
Current approaches to patient safety
Medical mistakes often go undetected because health care professionals have too narrowly focused on individual error as the cause of those mistakes. As Lucian Leape notes:
Ironically, that unique nature of medical injury, or more precisely our reaction to it, has been the major barrier to reducing medical errors and injury. Shame, guilt, and fear prevent many physicians from discussing their mistakes, being honest with patients, and being able to look beyond their individual errors to correct underlying systems failures. They can only try harder. For many lawyers, a sense of just cause, in some cases moral outrage, similarly blinds them to alternatives to tort litigation. Both are misplaced. And both have been manifestly unsuccessful in preventing medical injuries. We have created a monster.3
One of the main changes in the approach to patient safety has been a move from the “culture of blame” to a culture of safety. In the past when errors were made the emphasis was on the person making the error, focusing on an individual’s inattention, forgetfulness, or carelessness. However, evidence supports the theory that the error is most likely related to problems within the system. One of the main premises with the systems approach is that human beings are fallible and errors are expected. The goal of decreasing medical error is to build defenses into the system. If an error does occur, the emphasis is on why and how the system failed.4 Administrators should place attention on the conditions in which individuals work, using tasks and teams with a goal to create better systems.
Facilities that focus on the person fail to further investigate possible causes in the error. A person focus includes active failures, such as health care procedural violations and lapses. An active failure occurs at the point of contact and is often referred to as an error at the sharp end. These sharp end errors are among the first noticed and often have bad outcomes.4
Latent conditions, those conditions that can lay dormant over a long time, refers to the less obvious failures in the system, such as design problems that lead to patient safety issues. These latent conditions are the result of decisions and actions by administrators—those who write policies and design the systems. Latent conditions account for the complexity of the system and how this affects the person at the point of contact. Reason4 stated there are two kinds of adverse effects arising from latent conditions: error provoking conditions within the local workplace (e.g., poor staffing, fatigue) and long-lasting holes or weaknesses in the defenses (e.g., poor procedures and policies, design and construction deficiencies). Latent conditions can be discovered and corrected before a patient error, leading to a proactive stance. Organizations that strive for this approach are referred to as high-reliability organizations (HROs).5
HROs are facilities that are consistent in a focus on patient safety and avoidance of errors. The origins of HROs can be traced to the nuclear power and aviation industries. HROs easily identify weak links in patient safety and then strongly and promptly respond to these weaknesses, thus avoiding potential catastrophic errors. Every health care facility differs in its culture, systems issues, and challenges; therefore how health care facilities develop into an HRO will differ. HROs change their cultures to focus on reducing systems failures and have mechanisms in place to respond if a system failure occurs. 5
HROs function within complex environments that place them at risk for error; for example, hospitals have interdependence among various disciplines from nursing to physicians to support staffs. In addition, within the hospital setting are multiple subcultures. This interdependence continues with the coordination needed to accomplish patient care efficiently and in a safe manner. This coordination also leads to extreme hierarchical differentiation in which roles are defined and differentiated, and decision making often falls to the most knowledgeable in the group. HROs also have high degrees of accountability, and in the health care industry that accountability is primarily to the patient. HROs also require good feedback among its teams and the ability to work under time constraints.5
