Infection Control Today - 03/2003: Clinical Update

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

By Tina Brooks

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

A Case of Malpractice

More that 1,400 medical malpractice cases commenced in U.S. district courts in 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 payments for non-specialized nurses, but obstetrics and surgery-related problems are also responsible for significant numbers of payments for these nurses.² However, the NPDB states that malpractice payments are relatively rare.

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

"In fact, in all of those claims the real problem was a retained foreign body left in the patient from surgery," says Nancy Hudecek, RN, CCM, director of corporate communications at RMF. "Of course, this is a quick cursory glance but one thing for nurses to be aware of is to have and conduct themselves with complete internationality in the sponge and surgical instrument count when circulating in the operating room. That is a point in time that calls for 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 despite strict conformity to aseptic technique, only proof of deviation from those standards will support claims of malpractice.³ The majority of infection control types of cases are tort (negligence) relying on the showing of negligence (breach of duty) or relying on res ipsa loquitur (the thing speaks for itself), a doctrine designed to substitute for the showing of actual negligence.⁴

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

"When you go to court there is a question as to the applicable standard that will be applied to discern your negligence or your malpractice," says attorney Winifred Carson-Smith, nurse practice counsel in the office of general counsel at the American Nurses Association (ANA). Standards from professional associations as well as guidelines from governing bodies are used to provide medical-legal standards in lawsuits. The ANA defines standards as authoritative statements enunciated and promulgated by the profession by which the quality of practice, service or education can be judged.⁷

In order to prove no liability, defendants show the aseptic and antiseptic policies of the healthcare facility; the extent to which the facility has gone to keep infection to a minimum; and that nurses and others involved in the care of the infected patient did their best to meet policies and procedures.⁸ Documentation is what accomplishes this. "Documentary evidence in the form of nurse's notes, incident reports and the like, go to the 'weight of the evidence' in proving that nurses in a given situation did their level best to control infection," states an article from The Regan Report on Nursing Law. "That's all that is required of nurses. Reasonable care under the circumstances 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 and many courts have recognized over the years that if some treatment was ordered and it is not documented then their jury is entitled to assume that it was not done."

The Team Approach

"Being alert to compliance with all infection control measures, and doing so, the circulating nurse doesn't just 'protect him or herself' he or she protects the entire surgical team," says Ellen K. Murphy, RN, JD, professor at the University of Wisconsin-Milwaukee School of Nursing. It is also recommended that nurses become familiar with their state's nurse practice act, a law that varies from state to state. Information about this act can be obtained from state nurses' associations or the state board of nursing.

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

A Plaintiff's Point of View

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

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