V.Legal Concepts 5.1 Nursing Liability and Law A. Liability, Negligence and Malpractice a.

Liability- to be liable is to be legally bound, as to make good any loss or damage that occurs in a transaction; to be answerable and to be responsible. Every professional RN and surgical technologist should always carry out duties in accordance with standards and practice guidelines established by federal statuses, state practice acts and professional organizations. b. Negligence - the lack of care or skills that any RN or surgical technologist in the same situation would be expected to use. Legally defined as omission to do something that a reasonable person would do, guided by appropriate considerations that ordinarly regulate human affairs. c. Malpractice is any professional misconduct, unreasonable lack of skill or judgement, or illegal or immoral conduct. d. Borrowed Servant Rule the surgeon is liable for acts of team memebers only when he or she has the right to control and supervise the way in which an RN or surgical technologist performs the work. . - Currently now, courts now recognized that the surgeon does not have complete control over the acts of the team and the surgeon is no longer held responsible when a team member fails to carry out a routine procedure as expected e. Independent Contractor the employer may held responsible for employees under the master-servant rule. However, the current trend is to hold an individual responsible for his or her own acts under the principle of an independent contractor. f. Doctrine of the Reasonable Man a patient has the right to expects that all professional and technical nursing personnel will use knowledge, skill, and judgement in performing duties that meet standards exercised by other reasonably prudent persons involved in similar circumstances. g. Doctrine of Res Ipsa Loquitor means The things speaks for itself. Before this doctrine can be applied, three conditions must exist: 1. the type of injury does not ordinarily occur without a negligent act. 2. the injury was caused by the conduct or instrumentality within the exclusive control of the person/s being sued. 3. the injured person could not have contributed to negligence nor voluntarily assumed risk. - this doctrine applies to injuries sustained by patients when a foreign object is left in a patients body or sustains a burn. h. Doctrine of Respondent Superior an employer may be liable for an employees's negligent conduct under the respondent superior master-servant employment relationship. if a patient is injured as a result of an employee's negligent act then the employer is held responsible, the patient may sue both the facility and the employee. i. Doctrine of Corporate Negligence the facility may be liable,not for the negligence of the employees, but its own negligence in failing to ensure that an acceptable level of care is provided. A hospital has a duty to provide services and is responsible for: 1. Screening and verifiying qualifications of staff members, including medical staff, according to standards established by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). 2. Monitoring and reviewing performance of staff members through established personnel appraisal and peer review procedures.

3. Mainatining a competent staff of physicians, Rns, and Employees. 4. Revoking practice priviliges of a physician, RN, or surgical technologist when the administration knows or should have known that the individual is incompetent or impaired. a. Doctrine of Informed Consent The physician's duty to inform the patient and to obtain consent before treatment. Failure to do so may be considered breach of duty and the informed consent is a protective document for the patient and the treating physicians. b. Extension Doctrine the surgeon may extend the surgical procedure to correct or remove any abnormal or pathologic condition under the extension doctrine. This implies that the patient's explicit consent for a surgical procedure serves as an implicit consent for any or all procedures deemed necessary to cope with unpredictable situations that jeopardize the patient's health. c. Assault and Battery Assault is an unlawful threat to harm another ohysically. Battery is the carrying out of bodily harm, as by touching without an authorization or consent. Lack of consent is an important aspect of an assault and battery charge, consent must be given voluntarily with full understanding of implications. d. Invasion of Privacy exists by statutory or common law, the patient's chart, medicla record, videotapes, x-ray films and photographs are considered confidential information for use by physicians and other health care personnel directly concerned the patients care. - a written consent should be provided by the client for videotaping ot photographing hisor her surgical procedure for medical education or research and the patient has the right to refuse consent. e. Abandonment consists of leaving the patient for any reason when the patient's condition is contingent on the presence of the caregiver, in simpler terms, the danger to the patient by the caregiver's absence was greater in importance than the reason for leaving the patient. If the caregiver leaves the romm knowing there is a potential need for care druing his or her absence, even under the order of a physician, the caregiver is liable for his or her own actions. - if an event necessitates leaving a patient, it is important to transfer care to another caregiver of equal status and function. In uncontrollable circumstances, comsult with the OR manager or charge person immediately. Do not leave the patinet unattended. B. Liability Insurance increases autonomy increases the risk of liability, perioperative nurses and surgical technologists must work in coordination with surgeons to provide care to the patient in the OR. No matter how careful the nurse is, mistakes can happen and an unintentional wrong may cause injury to a patient. - most institutions carry insurance policies to cover incidents that result in harm to a patient when the event happens within the scope of institutional policies and procedures. However, in some instances, the insurance may not adequately cover the event. The nurse or surgical technologist who accidentally caused the injury can be sued as an individual or as a codefendant. 5.2Safeguards for Operating Room Team - All healthcare providers need to take measures to protect themselves from litigation. A preventive strategy includes: 1. Establishment of psoitive rapport with patient. Patients are less likely to sue if they perceive that they are treated with respect, dignity and sincere concern. 2. Compliance with legal statuses and standards of accrediting agencies, professional associations, and the health care facility.

3. Documentation of assessments, interventions, and evaluations of patient care outcomes. 4. Prevention of injuries by adhering to policies and procedures. 5. Control of further insult or damage if any injury occurs by reporting problems and taking corrective action. 6. Maintenance of good communications with other team members. a. Orientation and In-Service Education Orientation of all new employees and regularly scheduled, on- going, in-service educational programs are necessary to keep the nursing staff informed of policies, procedures, new techniques, and patient care practices. b. Continuing Education Professional nurses and surgical technologists have a personal responsibility for continued learning through reading and attending workshops, seminars, conferences and other educational offerings. - Education does not end with basic training, continued learning helps the practitioner keep abreast of current trends and practices. 5.2Nurse Practice Acts 5.3Specfic Patient Care Issues A. Informed Consent and Authorization for treatment Informed Consent - every patient is entitled to receive sufficient information on which to intelligently base a decision. The patient has the right to decide what will or will not be done to him or her. Only after making a decision is the patient asked to sign a written consent for a surgical procedure. - the document should contain the patient's name in full (a married woman's given name), the surgeon's name, the specific procedure to be performed, the signatures of the patient and authorized witness(es) and the date of signatures. Authorization for treatment- the patient giving consent must be of legal age and mentally competent, the patient must sign before premedication is given and before going to the OR except in life-threatening, emergency situations. Before an elective surgical procedure, the patient should be asked to sign at least 1 day preoperatively. If the patient is: 1. A minor, a parent or legal guardian must sign 2. An emancipated minor, married or independently earning a living, he or she may sign. 3. Illiterate, he or she may sign with an X, after which the witness writes patient's marks. The patient must understand a verbal explanation, however. 4. Unconscious, a responsible relative or guardian must sign. 5. Mentally Incompetent, the legal guardian who may be either an individual or agency must sign. A court of competent jurisdiction may legalize the procedure in absence of the legal guardian. To a emancipated minor who is mentally incapacitated by chemical substances or alcohol the spouse or responsible relative may sign. B. Right to accept or refuse medical treatment -the patient has a right to withdraw written consent before surgical procedure if his or her determination to do so is reached while in a rational state and voluntarily. The surgeon or referring physician explains the medical consequences of refusing the medical treatment, if therapeutically valid, alternative methods of medical management should be offered. The physician also should obtain an written refusal from the patient, parent or guardian to absolve him or her and the hospital from liability of failure to perform the treatment. VI.Spiritual needs 6.1 spiritual distress - A strong sense of spirituality or religious faith can have a pos-itive impact on health Spirituality is

also a component of hope, and, especially during chronic, serious, or terminal illness, patients and their families often find comfort and emotional strength in their religious traditions or spiritual beliefs. - Spiritually distressed patients (or family members) may show de-spair, discouragement, ambivalence, detachment, anger, resent-ment, or fear. They may question the meaning of suffering, life,and death, and express a sense of emptiness. 6.2. Nursing Implications - The nurse assesse spiritual strength by inquiring about the persons sense of spiritual well-being, hope, and peacefulness. - For nurses to provide spiritual care, they must be open to being present and supportive when patients experience doubt, fearfulness, suffering, despair, or other difficult psychological states of being. - Interventions that foster spiritual growth or reconciliation include being fully present; listening actively; conveying a sense of caring, respect, and acceptance; using therapeutic communication tech-niques to encourage expression; suggesting the use of prayer, meditation, or imagery; and facilitating contact with spiritual leaders or performance of spiritual rituals

Atkinson, L. & Fortunato, N. (1996) Operating Room Technique. USA: Mosby Yearbook, Inc. Atkinson, L. & Fortunato, N. (2002) Operating Room Technique. USA: Mosby Yearbook, Inc. Burkhardth, M. & Nathaniel, A. (2002). Ethic & Issues in Contemporary Nursing. (2nd ed.) Singapore: Thomson Learning Asia. Smeltzer, S. & Bare, B. (2004). Textbook of Medical-Surgical Nursing (10th ed.) Philadelphia: Lippincott Williams & Wilkins