Should supervisor ‘mind her- own business’ as surgeon directs?

Q A surgeon performs an abdominal pro- cedure, expressly authorized in the patient’s written consent. He doesn’t stop there, how- ever. He also removes several moles not men- tioned on the operative permit. When the OR supervisor inquires about this unauthorized procedure, the surgeon says, “Mind your own business.” When the OR supervisor tells the surgeon she will have to refer to the mole exci- sions in her OR nurse’s notes, the surgeon forbids her to do so. He calls her a “trouble- maker” and heaps on other verbal abuse. She takes it stoically. Legally, should the OR supervisor “mind her own business,” as di- rected by the surgeon? Must she suffer in si- lence when verbally abused?

A The OR supervisor should always keep in mind that one of his or her responsibilities in the operating room is to make certain hospital policy is carefully followed related to every as- pect of OR service. This includes hospital pol- icy requiring a prior informed consent for surgery. The mole excisions are a technical assault and battery by the unauthorized physi- cian. When you called to the surgeon’s atten- tion the fact there was no prior written informed consent for removal of the moles, you were “minding your own business” and your hospi- tal’s business appropriately. The surgeon has no right to forbid you to chart what you feel is appropriate for procedures performed in your

operating room. The physician who attempts to control nurse’s notes may be practicing nursing without a license. You should chart the fact that the abdominal procedure and mole ex- cisions were completed by the operating sur- geon. It would remain for him to explain, if called upon, why he performed unauthorized procedures.

The label “trouble-maker” was unfair. No nurse should stand mute in the face of the kind of verbal abuse you describe. The physician seriously violated a medical staff requirement of good professional conduct. From an admin- istrative point of view, it would not be out of order for you to prepare an incident report re- garding this unfortunate confrontation with a rude and careless surgeon who apparently was not adverse to taking liberties with con- sent forms signed by his patients.

Q ~t is not uncommon to discover at the last minute before surgery that the patient has completed an operative consent form incor- rectly. In local anesthesia cases, when the pa- tient is still alert and conscious, this presents no problem. In my hospital, we simply have the alert patient correct the mistake. Our concern relates to situations where the patient is al- ready heavily medicated and partially anes- thetized when we first discover the error on his consent form. In such a situation, the surgeon and the OR supervisor appear to have three options: (1) cancel the surgery, (2) get a rela- tive’s signature, or (3) proceed with the surgery and hope there are no repercussions. When this problem arises in my hospital, we usually send somebody out of the operating room to obtain a relative’s signature. Do you favor this option? If not, why?

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A Frequently, the mistake on aconsent form is an erroneous date, a signature in an Im- proper place, or some other inconsequential error in how the form is completed. Such inci- dental errors should not be a cause to post- pone or delay surgery. What’s important is that there is an acknowledgment, in writing, that the patient has been apprised of the nature, pur- pose, and all collateral matters relating to the operation. It also acknowledges that the pa- tient is undergoing surgery without duress and in substantial agreement with the opinion of the surgeon as to its necessity. Unfortunately, in an effort to be absolutely correct, OR nursing personnel frequently get hung up on mistakes or shortcomings that do not go to the essence of the matter-the responsibility to obtain evi- dence, in writing, of the patient’s concurrence and cooperation in the operation to be per- formed. Presumably, prior to surgery, the pa- tient is aware he or she is going to the operat- ing room and is about to undergo surgery. The fact that the alert and conscious patient does not object to the imminent surgery at that point in itself indicates the patient’s willingness to have the procedure performed. It appears that option three, to proceed with the surgery, is appropriate in such instances unless the mis- take in the consent form clearly reflects a criti- cal misunderstanding between the surgeon and the patient.

Q If negligence occurs during an operation, must the negligent act be charted in the sur- geon’s postoperative note and in the OR nurse’s notes? The policy in my hospital is to make no mention of negligent acts in the sur- geon’s postoperative note but to make out an incident report. Some surgeons insist no men- tion be made anywhere about negligent acts. Not only will they refuse to chart such things in postoperative notes; they also refuse to com- plete incident reports relating to such matters. What are the legal implications for me as an OR supervisor?

A An untoward occurrence during surgery does not necessarily translate to culpable neg- ligence. Culpable negligence is a conclusion of law and not one that can be ordinarily be made during or immediately after an operation is per- formed. Even when a patient expires during

surgery, there is no basis for inferring negli- gence, pending a complete evaluation of the circumstances prior to and during the proce- dure. Unusual occurrences during surgery should be forthrightly and truthfully charted when the unanticipated incident appears to have affected the patient in some way. Cer- tainly a patient who arrests during surgery has a right to expect there will be reference to the cardiac arrest in the postoperative notes even when the surgeon and anesthesiologist concur there was no brain damage.

Your hospital’s policy is inconsistent with the practice of exemplary hospitals. It is certainly inconsistent with the guidelines and directives of the Joint Commission on Accreditation of Hospitals. In addition to charting in postopera- tive notes, many hospitals also require as a matter of policy that an incident report be pre- pared regarding the unanticipated occurrence. Surgeons who refuse to write accurate and truthful postoperative notes and incident re- ports about untoward occurrences during surgery are in violation of medical staff regu- lations in every accredited hospital in the United States. Your responsibility as an OR supervisor is to put nursing administration on notice of the disciplinary breach by the physi- cians. In addition, it is your responsibility to apprise the surgeons of your intention to chart the untoward occurrence accurately in your OR nurse’s notes in each instance. Having done these things, you have satisfied your legal obligations.

Q I understand that the responsibility of an RN circulator for a patient under general anes- thesia during surgery is legally defined as “reasonable care under the circumstances.” Since the anesthetized patient cannot express himself, I assume the circulator’s level of re- sponsibility in such cases is very high as it relates to vital signs, electrocardiogram, and other monitoring. My concern relates to the legal liability of the OR circulator when patients are under local anesthesia. What are the limits of liability in such situations?

A The responsibility for any nurse to render quality patient care or “reasonable care under the circumstances” directly correlates to the patient’s ability to protect himself, such as

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complaining about pain or physical discomfort. You are correct in your understanding of the high level of legal responsibility that you, as an RN circulator, have for the patient undergoing surgery under general anesthesia.

For patients under local anesthesia, who remain alert and conscious before, during, and after surgery, your responsibility is markedly lessened. These patients are aware of where they are and what procedure is being per- formed, and they can react to the stimulus of pain or other physical discomfort. The patient experiencing pain and discomfort has a re- sponsibility to make this known to those caring for him. If a patient stoically maintains silence and shows no physical reaction to severe pain during surgery, his unusual behavior might be recognized as contributory negligence, lessen- ing the responsibility of the operating surgeon, the RN circulator, and the hospital in the event of a negligence lawsuit. People are expected to be reasonably careful for their own physical safety. This personal responsibility would in- clude the alert, conscious patient in the operat- ing room.

Q When a total hip arthroplasty is vid- eotaped with the patient’s prior permission, what is the status of the tape? Is it a medical record owned by the hospital, or is it the prop- erty of the surgeon? Can it be used sub- sequently for educational purposes? Must it remain in the hospital, or can it be given to the operating surgeon?

A Surgical procedures can only be vid- eotaped with the approval of the patient and the hospital where the videotaping is to be performed. When the hospital provides the videotape, the product of taping is presumably the physical property of the hospital and not the surgeon. If the patient has consented to videotaping of a surgical procedure and not restricted subsequent use of the videotape by the hospital and the operating surgeon, the hospital and the surgeon may use the tape for educational purposes. Whether the tape must remain in the hospital or can be given to the operating surgeon for his use depends on the patient’s understanding at the time he gave consent for videotaping and the hospital’s pol- icy relative to use and distribution of such

tapes. Such videotapes are rarely allowed in evidence in legal proceedings because of the ease with which they can be altered or edited.

William A Regan, JD Managing associate

Regan, Carberry & Flynn Providence, RI

If you have any questions on OR nursing law you would like answered, please send them to William A Regan, JD, clo AORN Journal, 701 70 E Mississippi Ave, Denver, Colo 80231. Questions of general interest will be selected for replies in this column. Other questions will not be answered. Questions will not be acknowledged or returned.

Patients overreport penicillin allergies Penicillin allergies are not as common as they may seem. Only about 2% of all patients are actually allergic to the drug, writes Irwin J Polk, MD, in a recent Journal of the American Medical Association.

overreported by patients says Dr Polk, a senior scientist in the American Medical Association’s Department of Drugs. He made his comments in a reply to a physician’s query about testing for penicillin allergy. It is estimated that serious allergic reactions follow 10 to 40 of every 100,000 injections: only two of every 100,000 injections end fatally. Skin rashes and other reactions appearing in patients after administration of penicillin sometime occur in later stages of the viral infections for which the drug was prescribed, Dr Polk explained in a separate interview.

In another response to the query, Richard D DeSwarte, MD, states that currently available skin tests for penicillin allergy can detect sensitivity in some but not all potential reactors. New skin tests are being developed that will allow physicians to identify virtually all patients who are at risk of immediate allergic reaction to penicillin, adds DeSwarte, an allergist at the Rockford (111) Clinic.

Penicillin allergy is frequently

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