Infection Control Today - 03/2003: Clinical Update

The Legalities of Infection Control in the OR:
Reducing the Risk of Malpractice Lawsuits for PerioperativeNurses

By Tina Brooks

Even as medical malpractice issues are being debated daily on Capitol Hilland in the media, insurance costs are soaring and more healthcare professionalsare leaving the profession. Among these disturbing trends is that of a growingnumber of perioperative nurses being named in lawsuits. Becoming aware of theissues involved in infection-related or adverse event-associated litigation mayreduce the risk of becoming another statistic.

A Case of Malpractice

More that 1,400 medical malpractice cases commenced in U.S. district courtsin 2001.¹ The average malpractice payment for all types of nurses was$125,000 that year, according to the National Practitioner Data Bank (NPDB).Monitoring, treatment and medication problems represent the majority of paymentsfor non-specialized nurses, but obstetrics and surgery-related problems are alsoresponsible for significant numbers of payments for these nurses.²However, the NPDB states that malpractice payments are relatively rare.

Based on data from the past five years, the Risk Management Foundation of theHarvard Medical Institutions Inc. (RMF) found that 11 of the 15 claims for 23hospitals that it works with involved a nurse being named as a defendant and anallegation of an infection resulting from care.

"In fact, in all of those claims the real problem was a retained foreignbody left in the patient from surgery," says Nancy Hudecek, RN, CCM,director of corporate communications at RMF. "Of course, this is a quickcursory glance but one thing for nurses to be aware of is to have and conductthemselves with complete internationality in the sponge and surgical instrumentcount when circulating in the operating room. That is a point in time that callsfor complete focus, certainly to prevent any allegations of impropriety."

Malpractice lawsuits stemming from infection control issues are rare,however, they do occur. Although some patient infections may result despitestrict conformity to aseptic technique, only proof of deviation from thosestandards will support claims of malpractice.³ The majority ofinfection control types of cases are tort (negligence) relying on the showing ofnegligence (breach of duty) or relying on res ipsa loquitur (the thing speaksfor itself), a doctrine designed to substitute for the showing of actualnegligence.⁴

For example, in one case the plaintiff underwent brain surgery at a hospital.⁵Three weeks later, he was readmitted to the hospital with a seriouspostoperative infection that required the removal of the bone flap covering hissurgical wound, leaving his head disfigured. The plaintiff lodged a complaintwith the Department of Health and Human Services (DHHS), naming four otherpatients with similar postoperative infections. After investigating the matter,DHHS attributed the high infection rates to intra-operative sources. Theplaintiff's affidavit cited the DHHS' findings and concluded that the hospitalbreached the requisite standard of care by not maintaining appropriate steriletechnique during surgery.⁶ The hospital lost the case.

"When you go to court there is a question as to the applicable standardthat will be applied to discern your negligence or your malpractice," saysattorney Winifred Carson-Smith, nurse practice counsel in the office of generalcounsel at the American Nurses Association (ANA). Standards from professionalassociations as well as guidelines from governing bodies are used to providemedical-legal standards in lawsuits. The ANA defines standards as authoritativestatements enunciated and promulgated by the profession by which the quality ofpractice, service or education can be judged.⁷

In order to prove no liability, defendants show the aseptic and antisepticpolicies of the healthcare facility; the extent to which the facility has goneto keep infection to a minimum; and that nurses and others involved in the careof the infected patient did their best to meet policies and procedures.⁸Documentation is what accomplishes this. "Documentary evidence in the formof nurse's notes, incident reports and the like, go to the 'weight of theevidence' in proving that nurses in a given situation did their level best tocontrol infection," states an article from The Regan Report on Nursing Law."That's all that is required of nurses. Reasonable care under thecircumstances is the rule of law in such matters."⁹

Diane Trace Warlick, JD, co-founder of Nurse Attorney Resources, adds,"Documentation has always been the best defense for nursing personnel andmany courts have recognized over the years that if some treatment was orderedand it is not documented then their jury is entitled to assume that it was notdone."

The Team Approach

"Being alert to compliance with all infection control measures, anddoing so, the circulating nurse doesn't just 'protect him or herself' he or sheprotects the entire surgical team," says Ellen K. Murphy, RN, JD, professorat the University of Wisconsin-Milwaukee School of Nursing. It is alsorecommended that nurses become familiar with their state's nurse practice act, alaw that varies from state to state. Information about this act can be obtainedfrom state nurses' associations or the state board of nursing.

"It's rare, if we do have a case involving infection, that it comes downto one person," says Murphy. "The person who would bring the casewould not be suing only one person. Typically, they will bring action againstthe facility in which it happened and by doing so they can reach all of theemployees of that facility and then all of the independent contractors who mighthave been present. The allegations vis a vis the facility could be bothliability because they are the employer of the negligent employee but it couldalso mean that the facility itself was negligent in failure to have a particularinfection control policy."

A Plaintiff's Point of View

Warlick has found that patients who feel cared for and listened to are lesslikely to file lawsuits. Some facilities have taken a proactive role bycontacting patients a day or two after their discharge to inquire about theircondition. In other situations, some perioperative nurses visit patients in therecovery room to inquire about their wellbeing. Hudecek adds that nurses in therecovery room and on the floor can be instrumental in the early identificationof potential postoperative complications, such as if a patient has a fever orisn't healing as expected.

"Whether or not you're sued is not always in your control," Warlicksays. "You can do everything right and still be a target in a lawsuit, butif you're a defendant in a lawsuit, your documentation is what may save you fromactual liability. Nurses' best protection is their rapport with patients andtheir reputation for caring. Following through on a nurse's instincts andconcern for a patient is never the wrong thing to do even if it meansdisagreeing with what some other professionals have said. You really need tofollow your own professional judgment."