Legal Accountability and the
Perioperative Nurse
Are You at Risk?
What Nurses Need to Know
Anne Grant, LL.B, LL.M (ADR) C. Med
anne.grant@mediatedsolutions.ca
Today we’ll discuss…
 Common legal pitfalls in
Perioperative Nursing
 Sources of accountability
 Recent developments
 How to analyze your legal risk
 How to reduce your legal risk
Legal Pitfalls
Lack of understanding of sources
of accountability
Inadequate or absent
documentation
Breach of Confidentiality
Absence of client consent
Inconsistent Practice
Sources of Legal Liability
 Employment Related
 Professional Liability to
Regulatory Body (CNO)
 Civil Liability:
 Direct
 Vicarious
 Criminal Liability
Employment Related
Accountability
Statutory
Contractual
Organizational policy and
Procedure
Recent Development – newly
amended Occupational Health &
Safety Act – June 15th, 2010
Violence in the Workplace:
The Murder of Lori Dupont
 On November 12, 2005, Dr. Marc Daniel
stabbed nurse Lori Dupont to death in
the hospital where they both worked
before injecting himself with a lethal dose
of drugs.
 The MD had pursued her relentlessly
over the previous year, eventually
persuading her to go out with him
Violence in the Workplace:
The Murder of Lori Dupont
The 2007 Coroner’s Inquest recognised that
Dr. Daniel, who had been harassing Ms
Dupont at work, exhibited three warning
signs of lethal violence:
 clinical depression,
 attempted suicide and
 recent separation from his domestic
partner
Key Changes
 Bill 168 took effect June 15, 2010
 Adds workplace violence and workplace
harassment provisions to Ontario OHSA
 Extends the right to refuse work where worker
believes “workplace violence is likely to
endanger himself or herself”
 Requires employers to protect workers against
“persons” (such as customers, patients,
members of the public) other than workers who
could cause physical injury to a worker
Raised Awareness of Escalating
Behaviours:
Irritating
Annoying
Disruptive
Intimidating
Bullying
Verbal Aggression
Physical Aggression
Violence
Civil Liability
 Enforced primarily through legal
action in the civil courts
 Applies Standard of care, i.e. the
“Reasonable Nurse”
For Example, requirement for Ontario
Hospitals to use the WHO Surgical
Checklist effective – April 1st , 2010
Common law standard of the
reasonable health professional
Regulatory (professional) standards &
guidelines
Institutional practices, polices &
procedures
Type of clinical area
Size, location & type of institution
Time frame of the alleged incident
Current industry standards, trends
Reasonable Foreseeability
Analyze Your Legal Risk
Do these circumstances attract
liability?
What standards apply?
Action steps? If no action is taken
will anyone be harmed?
Documentation?
Presence of Third Parties in OR
Typically includes:
Representatives of manufacturers of
surgical equipment
Students
Presence of Third Parties in OR
For example, an individual may request to
observe a surgical procedure for personal or
other reasons unrelated to patient care or
safety.
In these circumstances, issues such as
patient privacy and autonomy exist.
Patient safety concerns may arise if that
person turns out to be a source of distraction
or not properly instructed about the rules and
procedures of the hospital and OR.
Presence of Third Parties in OR
Before permitting persons not a part of
the surgical team to be present in the
operating room, it is important to consider
many issues, including patient privacy
and confidentiality, consent, and safety.
CMPA December 2008
Presence of Third Parties in OR
In the US there have been a few court
decisions as to whether liability can attach
to medical device or pharmaceutical
companies for the actions or omissions of
their company representatives who are
present in the operating room.
Kennedy v. Medtronic (Illinois 2006)
This case involved a death resulting from
the cardiac physician’s installation of a
Medtronic-manufactured pacemaker into
the wrong side of the patient’s heart.
Medtronic supplied a clinical specialist
who attended the surgery and checked the
leads to ensure that they were properly
calibrated and functioning.
Kennedy v. Medtronic (Illinois 2006)
Several months after the surgery, when
the unresponsive patient was brought to
the hospital, the surgeon discovered his
mistake and implanted a new pacemaker
The patient later died of renal and
congestive heart failures. The physician
admitted that he deviated from the
standard of care by inserting the
pacemaker lead into the left ventricle
Kennedy v. Medtronic (Illinois 2006)
The patient’s daughter sued the device
manufacturer, claiming that, by sending a
representative to the surgery, Medtronic
had voluntarily assumed a duty of care for
her father.
The Appellate Court found that Medtronic's
had no liability in this case
Swayze v. McNeil Laboratories (1987)
The plaintiff in Swayze was the mother of
a boy who died as a result of an overdose
of an anesthetic manufactured by McNeil
Laboratories
In this case, the Fifth Circuit Court of
Appeals considered whether a
pharmaceutical company has a duty to
affirmatively prevent a doctor’s misuse of
the company’s products
Swayze v. McNeil Laboratories (1987)
An unsupervised nurse anesthetist, rather
than a surgeon or anesthesiologist, had
miscalculated the patient’s dosage and
administered the anesthetic.
Though this use of unsupervised nurse
anesthetists was revealed to be a
statewide practice, McNeil denied any
knowledge of the practice.
Swayze v. McNeil Laboratories (1987)
The plaintiff alleged that McNeil
Laboratories knew or should have known of
this practice, and so had a duty to:
(1)warn patients directly of the risk of misuse
(2)take additional steps to enforce the
requirement that only a physician
administer the anesthetic, or
(3)withdraw the anesthetic from the market
Swayze v. McNeil Laboratories (1987)
The court found that McNeil had no duty to
enforce its warnings, or warn patients,
stating that it would hesitate to encourage or
require a drug manufacturer to intervene in
an established patient-physician relationship
It would be impractical and unrealistic, to
expect drug manufacturers to police
individual operating rooms to determine
which physicians adequately supervise their
surgical teams
Medication Errors
During a cataract extraction the surgeon
asked for irrigation solution and noticed
foam or bubbles on the surface of the
solution in the medicine glass.
He asked to see the container the
irrigation solution came in. He was shown
the container and then proceeded to use
the solution.
Medication Errors
Pharmacy had substituted Eye Stream for
the usual balanced salt solution.
Unfortunately, a preservative in the Eye
Stream solution caused damage to the
patient’s eye.
The patient initiated a lawsuit and
successfully sued the hospital and the
surgeon.
Medication Errors
Liability was apportioned
60% to the hospital (because of the
negligence of the pharmacy and the
circulating nurse) and
40% to the surgeon.
Misericoriia v. Bustillo et al, [1983] A.J. No.
270 (C.A.) (QL).
Foreign Bodies / Retained Sponge
A patient developed a severe postoperative infection after a presacral
neurectomy.
A laparotomy was performed and a nonradiopaque roll, six feet long and six
inches wide, was discovered.
Two months passed before the surgeon
informed the patient about the retained
roll.
Foreign Bodies / Retained Sponge
The patient successfully sued the hospital,
the operating room nursing staff and the
surgeon.
The hospital was found vicariously
liable for the negligence of its nursing staff
because of their failure to include the roll
in the operative count.
Foreign Bodies / Retained Sponge
The surgeon was liable for his failure to carry
out an exploration of the abdomen before
closing the incision and for his attempt to
conceal the truth from the patient.
The judge apportioned the liability for the
retained sponge equally between the nurses
and the surgeon and awarded aggravated
and punitive damages against the surgeon
because of his attempted cover-up.
Shobridge v. Thomas, [1999] B.C.J. No. 1747 (S.C.)
Incorrect Site
A patient had a three centimetre lump at
the five o’clock position in her left breast.
Before the surgical procedure, the surgeon
came into the theatre and palpated the
patient’s left breast.
The surgery was commenced and the
surgeon removed tissue from the ten
o’clock position.
Incorrect Site
At her post-operative visit, the patient
informed the surgeon that he had removed
tissue from the wrong location.
The patient went to a second surgeon and
had the lesion removed - it was benign.
The patient initiated a lawsuit and
successfully sued the first surgeon.
Incorrect Site
The trial judge stated that marking the
location before surgery with a marker ought
to be the practice of all breast surgeons.
It was also found that the surgeon’s
conduct fell below the standard of care
because of his lack of consultation with the
patient to confirm the correct location of the
lesion before starting the surgery
Ainsworth v. Ottawa General Hospital, [1999] O.J.
No. 2157 (Sup. Ct.) (QL).
Burns
A patient sustained second degree burns
on her buttock during a procedure to
remove rectal tags.
The cautery ignited Hibitane vapours from
solution which had pooled between the
patient’s buttock and the operating room
table in an area screened by the drape.
Burns
At trial, the physician was found liable.
There was no finding of liability against the
hospital or its nurses.
The judge stated that the warnings on the
Hibitane bottle and the information in the
electrosurgery device manual “charged the
surgeon with knowledge or a need to know
of the dangers of using them in close
proximity.”
Burns
These warnings also cast a duty of
inspection upon the surgeon that was not
met.
Because the action was commenced after
the one year limitation period found in
the Health Disciplines Act, the physician
was able to successfully appeal the trial
decision.
McSween v. Louis, [1997] O.J. No. 3702 at
para. 26 (Ct. J. (Gen. Div.)) (QL).
Note:
As of January 1, 2004, the Limitations Act
2002, S.O. 2002, c. 24. Sch. B. sets a
limitation period of two years for Ontario
health professionals.
Infection
A patient, who was a known
staphylococcus aureus carrier, died from
septicaemia following a splenectomy.
The cause of death was staphylococcal
sepsis.
The patient had a lot of body hair and was
given clippers to clip his own hair preoperatively.
Infection
While clipping the hair, the patient
scratched himself on the abdomen several
times, but no notation was made of the
scratches by the nursing staff on the
surgical unit.
The deceased patient’s wife initiated a
lawsuit against the nurses and the
physician.
Infection
The judge found the sepsis was caused by
the improper skin preparation and held the
surgical unit nursing staff liable because of
their failure to follow the skin-prep
protocol.
As for the surgeon, the judge found no
liability and stated that the surgeon was
entitled to rely on the nurses to perform
their duties as required.
Infection
The judge also commented on the role of
the operating room nurses:
“if the operating room nurses had seen the
scratches and failed to bring them to the
surgeon’s attention, they too would be
liable”
Crandell-Stroud v. Adams, [1993] N.J. No.
224 (S.C. (T.D.)) (QL).
Failure to Use Equipment in a
Responsible Manner
This US case involved the death of a 45year-old woman, from a massive air
embolism during a diagnostic hysteroscopy.
The woman's estate brought a medical
malpractice suit against: the physician who
performed the procedure, three operating
room nurses (one scrub nurse and two
circulating nurses), the hospital, and the
manufacturer of the hysteroscope
Failure to Use Equipment in a
Responsible Manner
 In this case one of the tubes was connected
to the hysteroscope incorrectly, so nitrogen
was pumped into the patient's uterus,
causing a fatal air embolism in the coronary
arteries.
Evidence presented at trial revealed that the
two nurses assigned to the surgical
procedure had neither hospital training nor
experience in the hysteroscope's use.
Failure to Use Equipment in a
Responsible Manner
The jury awarded the plaintiff $2,000,000 and
found the defendants liable as follows:
the physician, 20%;
the experienced circulating nurse, 25%;
the inexperienced circulating nurse, 20%; and
the hospital, 35%.
The scrub nurse and the manufacturer were
cleared of all liability.
Chin v. St. Barnabas Medical Center (1988), the
Superior Court of New Jersey, Appellate Division
Trends - Liability in Body
Contouring Procedures
 A US study (2013), showed a striking
discrepancy between plaintiffs’
allegations and expert physician opinion
 Patients alleged improper performance of
surgery in 75% of body contouring
claims, but expert physician reviewers
found substandard care in only 4% of
these claims.
Aesthetic Surgery Journal 2014
The top 8 injuries suffered by patients
who underwent body contouring
procedures included:
scarring (29%)
emotional trauma
(29%)
cosmetic injury
(14%)
need for additional
surgery (14%)
infection (12%)
puncture or
perforation (8%)
death (7%) and
tissue necrosis (5%)
Documentation May Be Used
As Evidence in:
Employment Related Proceedings
Coroner’s Proceedings
Complaints to Regulatory Body
Civil Actions
Criminal Proceedings
Documentation Pitfalls
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Illegible notes
Abbreviations
Incomplete or missing charting
Errors improperly corrected
Use of subjective phrases
 Appears to be infected
 Non-compliant
 Seems agitated
Legal Purpose of
Documentation
 Refresh memory
 Evidence to:
1. Reconstruct events
2. Establish times and dates
3. Resolve conflicts in testimony
Electronic Documentation
Must comply with the same
standards as manual or paper
systems
Electronic Documentation:
Areas of Concern
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
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Confidentiality
Security
Errors
Retrieval
To Reduce Legal Risk
Individual Health Care Professionals must:
Understand sources of liability
Understand & comply with professional
standards & employment expectations
Understand & apply principles of:
Documentation
Confidentiality and
Informed Consent, as well as
The standard of the “reasonable nurse”
… continued
To Reduce Legal Risk
Individual Health Care Professionals must:
Share information with relevant team
members
Consult/report/document unusual
situations
Advocate for a clear mandate & limitations
when providing unusual care, if there is no
recognized organizational procedure
To Reduce Legal Risk
Organizations Need To:
Provide clear, comprehensively
understood guidelines & practice
expectations
Integrate information from different
disciplines
Cross-reference/integration with other
healthcare records
Monitor usage & patterns of care
In closing…
“In the system of justice,
good notes will save you,
poor notes discredit you, and
no notes destroy you”
Anne E. Grant
co-author of
“A Nurse’s Practical Guide to the Law”
President, AEG Dispute Resolution
Services Inc.
Telephone 416.408.1700
Facsimile 416.222.3337
www.mediatedsolutions.ca