Transcript LEGAL & ETHICAL ASPECTS OF SURGERY

Standards
of Conduct
OBJECTIVES
 Analyze major concepts inherent in
professional law practice.
 Interpret the legal responsibilities of
the surgical technologist and other
team members.
 Discuss the Patient Bill of Rights
OBJECTIVES
 Analyze the key elements related to
developing a surgical conscience.
 Develop an increased sensitivity to
the influence of ethics in professional
practice.
 Analyze the role of morality during
ethical decision making.
OBJECTIVES
 Cite examples of ethical situations
and problems in the health
professions.
 Analyze scope of practice issues as
they relate to surgery.
 Apply principles of problem solving
in ethical decision making.
OBJECTIVES
 Assess errors that may occur in the
operating room and devise a plan for
investigation, correction, and
notification.
TERMINOLOGY
Terminology
 Accountability – Held responsible for
 Affidavit – Voluntary statement
 Allegation – Expected true statement
 Assault – Act intended to cause fear
 Battery – Intentional touching
 Bona fide – Good faith
Terminology
 Case law – Legal decisions
 Complaint – First pleading by plaintiff
 Defamation – Injury to reputation
 Defendant – Person accused
 Deposition – Pretrial question under
oath.
Terminology
 Federal law – Cases involving
Constitution/Congress
 Guardian – Court appointed protector
 Iatrogenic injury – Injury from
healthcare activity.
 Indictment – Formal written accusation
Terminology
 Jury – Citizens decide outcome of trial
 Larceny – Taking another’s property
 Common law – Principles based on
court decisions
 Statutory law – Law prescribed by
legislature
Terminology
 Liability – Obligation to do or not to do


Corporate Liability
Personal Liability
 Malpractice – Professional misconduct
causing harm
 Negligence – Doing something that a
prudent person would not do

Criminal Negligence
Terminology
 Perjury – Lying under oath
 Plaintiff – Person initiating lawsuit
 Precedent – Legal principle as example
 Standard of care – Expected conduct
 State law – State regulations
 Subpoena – Court order to appear
Terminology
 Tort – Civil wrong
 Tort-feasor – One who commits tort
Steps of a Trial
 Opening statements
 Closing statements
 Plaintiff presentation  Jury instruction
 Cross exam by
 Jury deliberation
defendant
 Verdict
 Defendant
 Appeal
presentation
 Execution of
 Cross exam by
plaintiff
judgment
Aeger Primo
“The Patient First”
DOCTRINE OF
BORROWED SERVANT
 Surgeon is not liable for
acts of registered nurse or
surgical technologist in
which they were properly
educated to perform.
DOCTRINE OF
CORPORATE NEGLIGENCE
 Health institution may be
negligent for failing to
ensure acceptable level of
care provided.
 Back ground checks
 Monitoring performance
DOCTRINE OF
FORESEEABILITY
 Ability to reasonably
anticipate harm because
of certain acts or
omissions.
DOCTRINE OF
PERSONAL LIABILITY
 Each person is responsible
for their own conduct.
 Physician cannot assume
all responsibility.
DOCTRINE OF THE
REASONABLY
PRUDANT MAN
 All personnel will use knowledge,
skill, and judgement in performing
duties that meet standards exercised
by other reasonably prudent persons
involved in similar circumstances.
PRIMUM NON NOCERE
 “Above all, do no harm”
DOCTRINE OF
RES IPSA LOQUITOR
 “The thing speaks for itself”
 Used in medical malpractice to
circumvent need for expert
testimony
DOCTRINE OF RESPONDENT
SUPERIOR
“Let the Master answer”
 Employer may be liable for
employee’s negligent act
DOCTRINE OF INFORMED
CONSENT
 Physician’s duty to inform the
patient and to obtain consent prior
to treatment.
Intentional Torts






Assault
Battery
Defamation
False Imprisonment
Intentional infliction of emotional distress
Invasion of privacy
Intentional Torts
 Require proof of willful action in three
elements:



Defendants action was intended to interfere
with plaintiff
Consequences of the act were also intended.
Act was a substantial factor in bringing of
consequences.
Unintentional Torts
 In spite of best efforts, individuals make
mistakes.
 Most common type of patient
indiscretions committed.
 Malpractice
 Negligence
Common errors and incidents
 Patient misidentification
 Performing an incorrect procedure
(wrong side surgery)
 Foreign bodies left in patient
(incorrect counts)
 Patient burns
 Falls or positioning errors with injury
Common errors and incidents
 Improper handling, identification, or
loss of specimens.
 Incorrect drugs or incorrect
administration
 Harm secondary to use of defective
equipment/instrument.
 Loss of or damage to patients
property.
Common errors and incidents
 Harm secondary to a major break in
sterile technique.
 Exceeding authority or accepted
functions; violation of hospital policy.
(scope of practice)
 Abandonment of a patient.
Consent for Surgery
 Consent refers to permission being given
for an action.
 The patient has the right to have control
over their life.
 Consent may be:


Expressed – Written or Verbal
Implied – Manifested by some action or
inaction of silence. Presumption of consent.
Consent for Surgery
 In health care, express consent of the
written form is desired.
 Informed consent is necessary before
surgical intervention.
 Liable to the charge of battery without
consent.
Consent for Surgery
 Written, informed consent
protects the patient in that
it guarantees that the
patient is aware of their
condition, the proposed
intervention, the risks, and
the variables that may
occur.
Consent for Surgery
 Physician must keep in mind any
language or cultural differences that may
affect the understanding.
 Hospitals will use General and Special
consents for treatment during the
patients stay.
Consent for Surgery
 General consent is for all general diagnostic,
and routine services and “touching”
expected during hospitalization.
 Special consent is for any procedures with
higher risks.

Surgery, Anesthesia, Transfusion, Chemo
Consent for Surgery
 Surgeon is responsible:





Information to be given in understandable
language
No coercion or intimidation.
Proposed procedure/treatment must be
explained.
Complications and Risks/Benefits explained.
Alternatives explained.
Consent for Surgery
 Written consent must contain:






Patients legal name
Surgeon’s name
Procedure to be performed
Patients signature
Signature of witness
Date and time of signatures
Consent for Surgery
 Witnesses may include:




Physician/surgeon
Registered nurse
Other hospital employee
Must not include any member of the
surgical team.
Consent for Surgery
 Consent is given to:





Competent adult speaking for
themselves
Parent or guardian for a minor
Guardian of the physical inability or
legal incompetence.
Hospital administrator
Courts
Consent for Surgery
 Emergency situations consent may
be secured:
Telephone
 Telegram
 Agreement of two consulting
physicians
(not including surgeon)
 Administrative consent

Documentation
 The patients medical chart should
include anything of clinical significance
to provide a continuity of care.






History and Physical
Diagnosis
Treatment plan
Medication record
Physical findings
Discharge condition and follow up plan
Documentation
 The patients requiring surgery must have
special documentation entered into the
medical record.
H & P before surgery
 Consent
 Operation report
(Start/Stop times, Procedure)
 Count sheet
 Anesthesia record
 Laboratory studies

Documentation
 All documentation are considered legal
documents and may be used to discover
negligent acts.
 Always ensure documentation is
completed and correct!!




Approved terminology and abbreviations
Correct spelling
Factual not subjective
No erasures – marked through with single
line and initials
Event/Incident Reports
 Documentation of unusual event that has
occurred.




Falls
Medication errors
Burns
Loss of specimen
 Submitted to risk management
department to attempt to identify factors
that caused the incident and ways to
prevent future incidents.
Medical Errors
 Brought to light in the 1990’s, the Institute of
Medicine claimed that more people die each
year from medical errors than car accidents,
AIDS, and breast cancer combined.
 Technology has helped to reduce these errors.
(Barcodes, Computers)
 The ST must follow policies and procedures
closely to prevent errors.
Safe Medical Device Act
 Requires medical device user to report to
the manufacturer and the FDA any link
in cause to injury, illness, or death of a
patient because of use of the device.
 Ex. Equipment, Implants, Supplies.
Malpractice Insurance
 Hospital insurance will typically cover
employees who commit negligent acts as
long as you work within your scope of
practice.
 If sued as an individual, having
malpractice insurance should cover any
difference not paid by the hospital.
ADVANCE DIRECTIVES
 Patient Self-Determination Act enacted
in 1990
 Written instructions for medical care
when dealing with an incapacitated
patient that can no longer make
decisions.

Carries the weight of state law.
ETHICS
ETHICS
 System of moral principles and rules, that
become standards for professional conduct.
 Not to be confused with morality.
 Concepts of “right and wrong”.
Ethical Decision Making
on Informed Consent
 Formalist – Believes informed consent is
right, because it is an act intended to
protect autonomy and honor obligation.
 Utilitarian – Believes that informed
consent is only good if the patient is
better off having been giving all the
information.

Wrong because if patient refuses treatment
and is damaged because of the action.
MORAL PRINCIPLES
 Guide ethical decision making.
 Principles we try and instill in
our children.



Well being of others
Honesty
Trustworthiness
BIOETHICAL SITUATIONS
 May create a conflict between an
individual’s value system and moral
obligation to maximize total human
benefits
Ex: Elective Sterilization, Abortion,
Assisted suicide, Genetic
engineering.
American Hospital Association
Patient’s Bill of Rights
 Adopted in 1972, revised and approved
in 1992.
 Series of 12 rights for the patient.
 Several important concepts or
assumptions make up its content.
American Hospital Association
Patient’s Bill of Rights
The patient has a right to:
 Receive considerate and respectful care
 Obtain relevant, current, and understandable
information concerning diagnosis, treatment,
and prognosis.
 Make decisions about care received before, and
during treatment, or to refuse a course of
treatment or plan of care.
 Expect every consideration of privacy.
American Hospital Association
Patient’s Bill of Rights
The patient has a right to:
 Prepare an advance directive concerning
treatment or designing a surrogate decision
maker and to the expectation that the intent of
the advance directive will be honored.
 Expect that all communications and records
pertaining to their care will be treated as
confidential.
 Review records concerning medical care and
receive an explanation or interpretation.
American Hospital Association
Patient’s Bill of Rights
The patient has a right to:
 Receive appropriate and medically indicated
care and services within the capacity and
policies of the hospital.
 Ask and be informed about the existence of
business relationships among any and all of the
care providers.
 Consent or decline to participate in research
studies or human experimentation.
American Hospital Association
Patient’s Bill of Rights
The patient has a right to:
 Expect a reasonable continuity of care.
 Be informed of hospital policies and practices
related to patient care.
AST Code of Ethics
Guidelines for the ST:
 To maintain the highest standards of
professional conduct and patient care.
 To hold in confidence, with respect to the
patient’s beliefs, all personal matters.
 To respect and protect the patient’s legal and
moral rights to quality patient care.
 To not knowingly cause injury or any injustice
to those entrusted to our care.
AST Code of Ethics
Guidelines for the ST:
 To work with fellow technologists and other
professional health groups to promote harmony
and unity for better patient care.
 To always follow the principles of asepsis.
 To maintain a high degree of efficiency through
continuing education.
 To maintain and practice surgical technology
willingly, with pride and dignity.
AST Code of Ethics
Guidelines for the ST:
 To report any unethical conduct or practice to
the proper authority.
 To adhere to the Code of Ethics at all times with
all members of the health care team.
SURGICAL CONSCIENCE
 Inner voice for
conscientious practice of
asepsis, avoid
discrimination, keeping
with patient’s confidence,
and committed to cost
control.
Scope of Practice
 Was the skill taught in your accredited
surgical tech program.
 If it was not included in your basic
surgical technology education, have you
since completed a comprehensive
educational program, which included
clinical experience.
Scope of Practice
 Has this task become so routine in
surgical technology practice that it can be
reasonably and prudently assumed
within scope.
 Does the professional literature and/or
research support this activity as being
within the scope of practice.
Scope of Practice
 Is the skill prohibited by hospital policy
or state law.
 Does it require state license to perform.
 Does carrying out the duty pass the
“reasonable and prudent” standard.
Scope of Practice
 Are there professional association
standards or position statements that
support this activity with additional
education and experience.
 Are you prepared to accept responsibility
and accountability for performing the
activity competently and safely.
Summary








Legal terminology and principles.
Torts and common errors in medicine.
Informed consent.
Documentation.
Ethics.
Patients bill of rights.
Code of ethics.
Scope of practice.