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.

The first section of this chapter includes the ethical values that underlie the formation of laws. This discussion is followed by common legal terminology, along with definitions and some examples. Some of the current approaches to patient safety are discussed. Next, the anatomy of a malpractice claim is explained. From these examples the perianesthesia nurse should have a better understanding of the litigation process with a review of these cases. Finally, the chapter presents some examples of malpractice issues involving nurses practicing in the perianesthesia area including examples of how some cases transpired.

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. Reason ⁴ 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

The Agency for Heathcare Research and Quality stresses several important concepts with HROs: resilience, deference to expertise, reluctance to simplify, sensitivity to operations, and preoccupation with failure. Being resilient indicates that the HRO has leaders and staff members who know how to respond to system failure. For an HRO to succeed, listening to the front-line staff, who understand how the processes work, is essential for managers. It is human nature to simplify processes; however, a complex understanding of systematic failures is needed in an HRO. An awareness of the current state of the processes and systems notes risks and aids in the prevention of future errors. HROs also take near misses seriously, using them as a means to further improve systems.⁵

Anatomy of A malpractice claim

Many state laws that govern legal claims for medical malpractice specify that the actions or inactions of nurses and doctors may be the basis for a medical malpractice lawsuit (Box 7-1).⁶^,⁷ The legal formula used in most medical malpractice cases is that a nurse, or other health care practitioner, must have and use the knowledge, skill, and care ordinarily possessed and used by members of the profession in good standing and that a doctor or nurse is liable if he or she did not have and use them.⁸^,⁹ American states are split on whether the standard of care for a health care practitioner should be judged by practitioners in the “same or similar locality” or according to a “national standard” of medical care. A national standard is normally used in cases of medical specialists and nurses.¹⁰^,¹¹

BOX 7-1 Elements Needed to Prove Liability

• Duty: At the time of injury, a duty existed between the plaintiff and the defendant.

• Breach of Duty: The defendant breached duty of care to the plaintiff.

• Proximate Cause: The breach of duty was the legal cause of injury to the plaintiff.

• Damage or Injury: The plaintiff experienced injury or damages or both and can be compensated by law.

Nurses need to be aware that four elements must be present to prove malpractice: duty, breach of duty, causation, and damages. The first element is duty, which simply means that once you accept responsibility for a patient you owe a duty to act in conformity to the accepted standards of practice. Knowledge of your state’s nurse practice act is essential. State boards of nursing differ on what nurses can do within the scope of practice. Often the state practice act is not clear. When in doubt, always double check with the state board of nursing.¹² Accepted standards of practice also include clinical practice guidelines and a facility’s policies and procedures. In the past, a community standard of care was accepted. However, most courts now expect adherence to national standards.

If the assumption of duty was established, then there must be a breach of this duty for malpractice. Nurses and other health care professionals can be responsible because of an action or an inaction (omission). This breach of duty of the nurse is measured against what a reasonably prudent nurse under the same or similar circumstances would do using objective criteria. The nurse cannot blame fatigue or lack of experience as the cause of the breach.² If a nurse thinks he or she is working too many hours or needs more orientation to a unit or new equipment, it is the nurse’s duty to report this to the manager. Not following standards of care or policies can be a breach of duty. In addition, expert witnesses can be used to illustrate that a nurse failed to act as a reasonably prudent nurse would in the same situation.

If a breach of duty has been established, then that breach of duty must be related to a damage or causation of the damage. The plaintiff will attempt to show that the injury would not have happened if the health care provider would have acted as a reasonably prudent health care provider would in the same situation. The plaintiff may also attempt to establish causation by stating that if the first injury had not occurred then other injuries would not have resulted.²

The final element in a malpractice claim is damage. Damages can be physical, psychological, or monetary.¹² Damages or injury must be present for the fourth element in malpractice to be satisfied—for example, giving the wrong medication to a patient that did not result in injury would not constitute malpractice.²

A claim is a demand for financial compensation for an injury that results from medical care. The majority of claims involving nursing issues are handled legally through the facility where the nurse worked during the incident. On rare occasions, hospitals or providers may pay for these claims out of pocket, especially if the damage is small (e.g., lost dentures). However, most claims are reported to the commercial malpractice insurance carrier who then investigates the claim, determines liability issues, and either settles the case out of court, denies liability altogether, or goes to trial. A few claims are dropped by the claimant before trial or are handled via arbitration or mediation.

The first step in a claim involves pleadings that are sent to the defendant. For most nurses, these pleadings will be sent directly to the nurse’s place of employment. Legal liability for nurse malpractice generally falls on the responsible nurse or the nurse’s employer under the legal doctrine of respondent superior. American tort law generally assigns shared responsibility for the nurse’s malpractice to the employer, the supervising physician, or both under the doctrine of joint and several liability; therefore both the nurse and the respondent superior codefendants are liable for the full judgment against them, which gives the plaintiff patient the option of suing the nurse, the liability insurance carrier, the nurse’s codefendant employer, and any other codefendants (and the liability insurance carriers).¹²^–¹⁴ However, a nurse who has committed malpractice is still primarily liable for damages to the patient plaintiff:

The mere fact that the plaintiff may focus collection efforts against a wealthier [or so-called “deep pockets”] codefendant, such as the nurse’s employer, does not eliminate the nurse’s liability (or the possibility that the nurse’s employer will take some adverse job action, such as discipline or termination, or that the state licensing board will suspend or revoke the nurse’s license). A nurse must be satisfied that he or she has [adequate] malpractice insurance, provided by either the self or the employer. In selecting the amount of coverage, the nurse should be aware of any caps or limits on damages that exist under state law.¹⁴

The pleadings will come in the form of a complaint, which can be specific or generic in terms of allegations, injury, and demands. If a nurse directly receives these pleadings, he or she should take these forms to the facility’s legal department. Complaints typically have a time limit to respond. Failure to respond in the allotted time will lead to a judgment against the nurse and will most likely result in no coverage from the malpractice carrier. Once the nurse is aware of the medical malpractice claim, it is important that the case is not discussed with anyone, including peers.¹²^,¹³

When the complaint is received by the malpractice insurer, an attorney will be assigned to monitor the case and provide an answer to the complaint. This answer tends to be direct, short, and often a denial of allegations. It is important to understand that both parties (plaintiff and defendant) can amend their pleadings to the court.¹²^,¹³

The discovery process occurs after the pleadings have started, and this process implies that the parties in the claim will be determining the evidence. The plaintiff may have already, and most likely has, requested all of the medical records. A nurse should never add information to a medical record after receiving a notice of a malpractice claim. This action will result in spoliation of records and implies guilt.¹²^,¹³

Attorneys will most likely send interrogatories to each other, which are written questions that need to be answered by the other party. Each of these questions is examined by the attorney first, because some may be too vague or may be objected to by the attorney. Next, the interrogatory will be sent to the health care provider and written responses will be needed. The attorney will review these responses carefully. When these interrogatories have been reviewed, the health care provider swears to the answers and they become part of the permanent legal record.¹²^,¹³

During discovery, depositions are also taken. Depositions are recorded by a court reporter and answers are given under oath. Nurses should take comfort in the fact that attorneys will take time to prepare them for these depositions. Often attorneys will conduct pre-deposition interviews. Nurses should also be aware that they may be contacted for a deposition, even if they are not a party to the claim.¹⁰^–¹³ Tips for giving a deposition are covered in Box 7-2.

• Look and act like a professional, indicating that you are prepared.

• Be clear, accurate, and concise; do not guess.

• Do not be argumentative with the attorney; this will reflect poorly on you.

• If you are in front of a jury, look at them and the judge when answering questions. (More than 95% of malpractice claims never make it to a jury trial.) Follow the advice of your defense attorney.

• Never give opinions unless asked for them; stick to the facts.

• Speak slowly and in a well-modulated tone of voice.

• Do not allow yourself to be rattled by the opposing attorney.

• If you do not remember a question or do not understand it, ask for it to be repeated or clarified. Do not get caught in the trap of allowing the attorney to use long multipart questions in an effort to confuse you.

• If you have made a statement and later realize it is not correct, do not be afraid to say so, rather than skirt issues or contradict yourself.

• Do not allow yourself to be goaded into an angry or emotional response; remember that you can always ask for a break during a deposition to collect yourself and your thoughts.

• Avoid the use of “always” and “never” and vague comments like “maybe,” “I think,” or “possibly.”

• Only answer the immediate question. Do not provide more information than is asked for by the question.

• After the deposition is completed, you can request a copy to view it for accuracy.

• Be open and honest with your attorney, even if providing some information may be embarrassing. The plaintiff attorney may try to use this information to impede your credibility.

• Do not answer hypothetical questions. If you are directed to do so by the judge, then be sure to state that this is a hypothetical answer and is not based on the case currently being decided.

• Wait until the attorney has finished asking the question. Take a breath and then answer.

• If testifying in front of a jury, try to avoid overuse of medical terms. Attempt to state the facts in terms that are easy to understand.

Both the defense and plaintiff attorneys will use expert witnesses to support their case. In some cases the plaintiff is unable to find an expert witness to support their allegations; the case is often dismissed if this occurs. Medical and nursing expert witnesses rely heavily on their own personal experiences from practice; they may use medical treatises or journals as evidence; they may cite from nursing and medical reference books; and because substantial regional variations exist in the use of many procedures, experts may rely more on anecdotal experiences with little regard for differences in outcome. Some experts comment that the system is not very good, because determining which expert is more believable to the jury generally boils down to a “battle of the experts.” Often attorneys on both sides attempt to impeach the qualifications of the expert witness on the other side, questioning qualifications or perhaps attempting to prove that the expert medical witness is unqualified because he or she is not familiar with the practice of nursing in a particular locality or a particular area of expertise. Another factor involved in the credibility of an expert witness is recent clinical experience. Box 7-3 presents ways that perianesthesia nurses can protect themselves against litigation.

BOX 7-3 How to Protect Against Litigation

• Adhere to accepted standard of care.

• Ensure that major aspects of care are met: responsibility, technical competence, and nursing judgment.

• Use appropriate documentation (see Boxes 7-4 and 7-5)

• Document what you see and do.

• Do not use judgmental language in documentation.

• Do not alter the records.

• Avoid medication errors.

• Violation of the classic five “rights” of medication administration

• Claims based on medication errors are augmented when the perianesthesia nurse:

• Fails to record the medication administration properly

• Fails to recognize side effects or contraindications

• Fails to know patient’s allergies

• Recognize and respond to complications.

• Ensure that all equipment functions properly.

• Adequately assess, monitor, and obtain assistance.

• Ensure adequate communication with all members of the health care team.

• Report all incidents or occurrences.

• Do not tolerate disruptive or abusive behavior.

• Demand and provide good, standardized handoffs.

• Properly supervise nursing staff, students, or technicians.

• Know and respect all patient’s rights (see Box 7-6).

• Protect a patient’s privacy.

• Ensure that informed consent has been given to the patient. If in doubt, have the physician speak with the patient. Remember that, as a nurse, you are just witnessing the patient’s signature on the informed consent, but always act as the patient’s advocate.

• Follow up on ordered tests.

• Record telephone calls or e-mails, including the time called, the time the call was returned, and what was discussed.

• Include quotes of the patient that may seem important to remember in the future.

• Delegate tasks appropriately to those with verified adequate skill.

When discovery has been completed and the expert witnesses have presented their opinions, the parties will decide how to proceed. Often a settlement offer is made and the parties will negotiate a possible settlement; however, if both sides believe they have a strong case, they will proceed to court. The trial is typically a jury trial and proceeds like a normal jury trial, including a jury verdict. Any jury finding can be appealed.¹⁰^,¹¹

If the case is settled or results in a plaintiff verdict, it is often filed with the National Practitioner Data Bank (NPDB). The NPDB is a central source of information regarding malpractice payments for physicians, nurses, and dentists. The databank became operational on September 1, 1990, and as of 1998 had more than 195,000 reports of malpractice payments, adverse licensure, clinical privileging, professional society membership, Drug Enforcement Agency actions, and Medicare or Medicaid exclusions actions concerning licensed professionals. Approximately 30,000 reports are added each year ¹⁵; however, if the nurse is covered under the hospital policy a claim will not be filed. The NPDB contains only cases that have been settled and does not contain the majority of claims that are dismissed. In addition, the NPDB will also contain information from state boards on disciplinary action and disciplinary action (based on clinical practice) taken by a facility against a health care provider.²

In summary, the overarching goal of nursing care is to prevent patient injury. Nurses can work toward this goal by following standards of care and reporting any potential problems to the administration. Because perianesthesia nurses care for multiple patients daily, it is essential that they document their care for easier recollection in the event a claim is filed. Some suggestions for documentation are included in Boxes 7-4 and 7-5.

BOX 7-4 Guidelines for Defensive Charting

• All entries should be accurate and factual.

• Make corrections appropriately and according to agency or hospital policies. Never obliterate or destroy any information that is or has been in the chart. This could lead to the charge of fraud or tampering with the records.

• If information exists that should have been charted and was not, the perianesthesia nurse should make a late entry, noting the time the charting actually occurred and the specific time the charting reflects.

• All identified patient problems, nursing actions taken, and patient responses should be noted. Do not describe a patient problem without including the nursing actions taken and the patient response.

• Documentation of why you did not do something that you would routinely do is often as important as documentation of why you did something. An example of this situation is a patient who refuses ambulation; the notation would be, “patient refused to ambulate because of . . .”

• Be as objective as possible in charting.

• Each page of the chart should contain the current date and time.

• Each page of the chart should include the full name and professional designation of every person who makes an entry on that page.

• Follow up with who saw the patient and what measures were initiated, especially in such instances as when the physician visited and calls that were made to the physician for a problem, and record the physician’s response, the nursing actions, and the patient’s response.

• Ensure that your notes are legible and clearly reflect the information to be documented to assure that the information makes sense and is portrayed accurately.

• Pertinent notes from other providers should also be reviewed to ensure that the medical record shows a coordination of health care team efforts and thoughts.

• Do not use the chart as a means of retaliation against other health care provider.

• Do not add to a document, such as an informed consent, unless the patient initials these additions.

• Do not include anything after the patient signs a document. Get a new document if needed and have the patient sign it as well.

Adapted from Zerwekh J, Garneau AZ: Nursing today: transition and trends, ed 7, St. Louis, 2012, Saunders; Hall J: Law and ethics for clinicians, Amarillo, Tex, 2002, Jackhal Books.

BOX 7-5 Computer Documentation Guidelines

• Do not ignore any warnings from the computer. These warnings are patient safety reminders.

• Do not allow anyone to have access to your password, even if temporarily.

• Know your hospital policy on late entries and error corrections. Documentation of these types of entries will most likely require a different approach.

• Access information only as needed. Do not access patient records if you are not involved in the care. The consequences of unethical access could lead to criminal and civil proceedings.

• Request in-services for any new implementation of online documentation or new systems.

• Know and follow your institution policy on how to handle patient printouts. Shredding or the elimination of patient identifiers should be included in that policy.

From Brent NJ: Nurses and the law: a guide to principles and applications, ed 2, Philadelphia, 2001, Saunders.

Sources for identification of malpractice in the PACU

Because the majority of malpractice claims are dismissed without any settlement, the factors associated with these dismissed claims remain unknown. If claims are settled with health care providers, such as physicians, then this information is reported to the NPDB. Because many claims involving perianesthesia nurses are covered under the facilities’ malpractice claims, the information is not captured in the National Practitioners Data Base. As mentioned earlier, many claims are dismissed, and the information related to patient safety is lost; therefore there is a lack of information within the perianesthesia areas in regard to malpractice claims.

A recent analysis of closed malpractice claims involving cases occurring within the PACU was published. This article provided a first snapshot into the malpractice issues and patient safety in the perianesthesia areas, such as ambulatory surgery and PACU.¹⁶

The most common allegations for claims occurring in the PACU included:

• Improper management of the surgical patient

• Improper anesthesia administration

• Failure to monitor the patient’s physiologic status

• Delay in treatment

• Delay in diagnosis

• Wrong medications

Although two of these allegations clearly involved the anesthesia provider (improper anesthesia administration and anesthesia related), many of the other allegations related to the nursing care in the PACU. In fact, 39% of the medical malpractice claims occurring in the PACU had nursing listed as the primary responsible party. The top three risk management issues among PACU nurses included clinical judgment (present in 24% of the claims and included failure to monitor the patient and appreciate changes in vital signs), administrative issues (present in 19% of the claims and focused on failure to follow policies and procedures and the need for staff training), and communication issues (present in 19% of the claims and involved communication between providers, as well as poor rapport with another health care provider).¹⁶

Several of the claims consisted of more than one of these risk management issues, highlighting the complexity of health care. One case included a patient who was recovering from general anesthesia. The PACU nurse recorded that the alarms were on (as were required by policy), but the PACU nurse failed to actually check the alarms and just assumed the alarms were on. None of the alarms, either for the cardiac monitor or the pulse oximeter, were on and the patient experienced respiratory depression, and then had a cardiopulmonary arrest, leading to anoxic brain damage. This is an example of a human factor causing an error in the PACU. The nurse became used to the routine of the monitor alarms being on and failed to check them.

This snapshot included only cases that led to claims handled by one malpractice carrier in the United States; therefore the investigation into malpractice issues in the perianesthesia units remains relatively unknown. This analysis of claims provides insight to PACU nurses on the importance of communication and monitoring of patients.¹⁶ Perianesthesia nurses are an essential player in patient safety.

Individual liability and the standard of care

As stated previously, there is no clear definition of a standard of care for a particular patient during particular circumstances. The standards for evaluation of the delivery of professional nursing services are not normally established by either judge or jury. Instead, the nursing profession itself sets the standards of practice, and the courts enforce these standards in tort suits. This practice requires that both plaintiff and defense attorneys present evidence of the standard of care by use of expert medical witnesses, who are almost always other perianesthesia nurses who practice nursing under similar circumstances as the defendant nurse. No clear definitions of the standard of care for a particular situation exist.

The development and proliferation of clinical practice guidelines is one of the transforming forces in current medical practice and has aided plaintiff and defense attorneys in developing a more objective case on behalf of their clients. In this area, clinical practice guidelines can be highly useful.¹⁷ As one author states:

The consistent use of well-developed and medically appropriate practice guidelines has two potentially compelling benefits. First, scientifically reliable guidelines can improve medical practice by reducing the incidence of misdiagnoses and inappropriate treatment decisions . . . Second, if major inroads are made into the process of creating and disseminating guidelines, their use may improve the process of malpractice litigation when the practice of medicine goes awry or when insurance coverage is denied. Clinical practice guidelines are being used by both plaintiff and defense attorneys as evidence of the standard of care in medicine. For this very reason, it may be more useful for practitioners, including nurse anesthetists, to review and implement guidelines rather than to review and analyze published malpractice cases on the same subject!¹⁸

There are several definitions of clinical practice guidelines, and the term itself has various synonyms, including clinical pathways, critical pathways, clinical paradigms, practice parameters, treatment protocols, and evidence-based medicine standards. Regardless of the name, the definition includes “systematically developed statements to assist practitioners and patient decisions about appropriate health care for specific clinical conditions.”¹⁹ Most guidelines attempt to improve health care providers’ decision making by detailing appropriate indications for specific interventions.²⁰ Recently, authors of one article pointed out the complicated issues that arise with formulation of CPGs and suggest that committees who develop the guidelines allow flexibility, include multiple sources of evidence, and not rely on a small panel to write the guideline. They also maintain that if evidence is sparse, that fact should be openly acknowledged in the guideline.¹¹ Managed care organizations have embraced practice guidelines in the belief that their use will help control health care costs. A number of health care providers, feeling financial pressure to use such practice guidelines, have rebelled against their use believing that they will lead to a “cookbook” practice of medicine. Although this claim is partly valid, more compelling reasons for health care providers to embrace practice guidelines exist. American health care is subject to too much variation in practice, according to some commentators, and physicians and nurses are inundated with increased research on practice guidelines. Keeping up with all the medical advances worldwide is simply impossible. Accordingly, the advantages of using evidence-based guidelines in medical practice are gaining more widespread approval among health care providers. The Institute of Medicine declared that professional societies can contribute to improvement in patient safety through the promulgation and promotion of practice guidelines and that such guidelines can be written through a more interdisciplinary approach to patient care. Practice guidelines are among the most widely used methods of modification of physician behavior and improvement of patient safety. Significantly, practice guidelines are increasingly cited in court litigation and are used as evidence of a medical standard of care. They can also be raised as an affirmative defense by physicians and nurses in medical malpractice suits to show compliance with accepted medical practice. The American Society of PeriAnesthesia Nurses now has in place two evidence-based clinical practice guidelines. Both of these guidelines were developed using an interdisciplinary approach.²¹^,²²

Several states have legislated the use of such practice guidelines and provide tort immunity for health care practitioners in exchange for following such guidelines. Finally, because these practice guidelines are widely published on the Internet, failure to access such information is likely to become an important piece of evidence in a malpractice suit, because the failure is evidence that a physician or nurse has failed to stay current in his or her field of practice. With more focus on practice guidelines based on outcomes, it is important that health care practitioners understand the sources of medical malpractice to develop practice guidelines aimed at these patient safety areas.

Suggestions to decrease legal liability and improve patient safety

Health care providers remain deeply committed to the care and safety of their patients. However, focusing on the blame game—singling out individuals for punishment and retribution and reliance on the court system for compensation to injured patients—has done little to increase patient care overall in American hospitals.⁶ The complex nature of the health care industry simply does not lend itself to this process of blaming individuals and allowing the courts to compensate injured patients. Instead, nursing professionals should embrace and encourage a systematic approach to defining quality of patient care and improving patient safety. To this end, the blame game will hopefully give way to developing a root cause analysis of medical errors and near misses and a systematic approach for making patient safety a priority in hospitals.

This is not to say that individual accountability or liability will disappear altogether—it will not. However, a systematic approach to individual liability will result in more focus on detailed credentialing processes, better assessment of professionals within certain job constraints, better licensing techniques, and better continuing educational programs, all geared to keep health care professionals competent and qualified for the particular tasks that they must do. With this new way of ascertaining how medical errors and near misses are made and how they can be avoided, some of the more important patient safety tips include the following:

• Report and investigate all near misses. Everyone can all learn from his or her mistakes, and mistakes that do not cause harm are just as important to understand and investigate as those that do cause harm. Identifying causes of near misses can highlight systems issues that have been overlooked for a long period of time within patient care. Addressing near misses before patient injury is important to improve patient safety and decrease filing of medical malpractice claims.

• Be sure that the hospital has a system to report and investigate all medical errors and near misses by encouraging and rewarding those who report personal mistakes rather than punishing them. Develop a systematic process to question potential medical errors before they happen. Time and again, members of a health care team see problems coming, but they are afraid to question the authority of the person who is about to make a mistake.

• Nurses are sometimes afraid to question physician’s orders, but their doubts can often save a patient’s life. Develop a policy on questioning authority. Each facility should have a chain of command policy in force, and nurses should not hesitate to use it. Every health care team member has the responsibility for patient outcome.

• Disruptive behavior from any health care provider should not be tolerated. Each health care member is entitled to fair treatment.

• Empower and actively involve your patients in determining their own standard of health care. In an age of patient autonomy and informed consent, patient involvement is acquiring new meaning. Informed consent is no longer a signature on a piece of paper but a process of ongoing communication. The more patients know what to expect from their own treatment protocol, the better they are able to help the nurse do his or her job and improve their own safety during care (Box 7-6).

• Embrace protocols and electronic checklists into practice. Human errors that involve equipment misuse remain a major concern for patients for anesthesia. Studies indicate that indexed electronic checklists are superior to either memorized or nonindexed paper checklists in reducing errors of omission. Airline pilots never fly without them, and neither should nurses.

• Try to avoid workarounds. Workarounds are often started because the system is not working for the end user. For example, a new system of medication delivery is implemented. However, this new system causes twice as much time for the nurse to administer the medication. Nurses then develop workarounds to decrease the time involved. These workarounds provide ample opportunity for medical errors. If you notice workarounds used within in your units, bring it to the attention of management. Again, workarounds tend to indicate a systems issue, which can be fixed if known.²³

• Remain up-to-date on continuing education. Taking these courses not only improves the nurse’s knowledge base, but it provides evidence that the nursing professional is current with the trends in perianesthesia nursing. If a nurse is involved in a lawsuit, lawyers for the plaintiff will likely ask to see his or her continuing education credits.

• Certification makes a difference as it illustrates that the nurse has a basis of knowledge within a specialty. This designation also highlights that the nurse voluntarily sought to advance and validate his or her clinical knowledge.

• Embrace the use of clinical guidelines. Just as checklists and protocols can help to avoid many human mistakes made as the result of doing a repetitious task, clinical guidelines can help to avoid human mistakes made as the result of judgmental error. Guidelines are not a definitive standard of care. However, clinical guidelines help to provide a defense in the medical record. The nursemust justify the reasons for deviating from the clinical guidelines. Untoward risks are part of medical care, but justifying decisions helps in defending medical actions later.

• Know what is covered, excluded, and provided by malpractice insurance. Even with all the previously listed recommendations, errors happen and involvement in a legal claim is often the first time medical professionals learn what insurance they do or do not have. As an employee, a nurse may be covered under a hospital “house” policy. It is important to read and understand that coverage. If job descriptions change dramatically, it is important to get written clarification of coverage from the insurance carrier. All health care professionals should make appointments with their insurance agents to review their medical malpractice policies. Some exclusions may be cause for surprise. Sexual misconduct with a patient is obviously excluded, but often, intentional acts are excluded as well. Know what this means; ask for examples; and know the coverage dollar amount limitation and tail policy, if any.

BOX 7-6 Patient Rights When Hospitalized

• Right to considerate and respectful care

• Right to obtain current and understandable material

• Right to be informed about illness, possible treatments, and likely outcome and to discuss this information with the physician

• Right to know the names and roles of the persons who are involved in care

• Right to consent to or refuse a treatment

• Right to have an advance directive

• Right to privacy

• Right to expect that medical records are confidential

• Right to review the medical record and to have information explained

• Right to expect that the hospital will provide necessary health services

• Right to reasonable continuity of care

• Right to know whether the hospital has relationships with outside parties that may influence treatment or care

• Right to consent or refuse to take part in research

• Right to be told of realistic care alternatives when hospital care is no longer appropriate

• Right to know about hospital rules that affect treatment and about changes and payment methods

From Christensen B, Kockrow E: Foundations of nursing, ed 4, St. Louis, 2003, Mosby; Paasche-Orlow MK, et al: National survey of patients’ bill of rights statutes, J Gen Intern Med 24:489–494, 2009.

Nurses focus on patient safety every day in their practice, but there are some legal considerations which remain. For example, improving patient safety emphasizes the need to report near-misses. To ensure that the reporting of near-misses is not discouraged, the leadership of the organization needs to embrace a culture of safety rather than blame. On the legal side of this reporting is the assurance that this information is safe from discovery and used in manners to improve patient safety. Reporting of near-misses can accentuate system issues before a major injury occurs. This allows the systematic problem to be identified and improved. However, health care workers may not report such events if there is the fear of retaliation or blame. Real leadership is needed, not only on the part of hospital administrators, physicians, and nurse administrators, but bedside nurses as well to incorporate patient safety and the reduction of medical errors as a specific goal. This requires a real change in the way hospitals hire, monitor, and manage their human resources. Also, patients must take responsibility for their own medical care and treatment. It is important that patients are encouraged to speak up if something does not seem right in their care. As Box 7-7 suggests, some methods exist to reduce errors in hospitals and specifically the PACU.

BOX 7-7 Ways to Reduce Errors in Hospitals

• Reduce mental errors by reducing stress and fatigue.

• Expand knowledge and develop programs to minimize inevitable errors by simplifying steps and systems.

• Avoid reliance on memory; simplify tasks and standardize procedures.

• Reduce drug errors of all types by systematizing and using dedicated staff members for use of drug delivery systems.

• Standardize equipment, such as same location in each unit, and identify equipment that is prone to causing errors.

• Training and education: use of simulators and performance certification.

• Use a process-of-care approach, whereby decision making is standardized, and development of error reduction program.

• Improve the structure of the department by having leadership direction that is multidisciplinary with outcome measures and reporting along with use of external benchmarks.

• Be responsive to change and resource allocation.