Legal Concepts and Ethical Issues in Surgical Technology
Learning Objectives for Surgical Technology Legal and Ethical Modules
CLO 2.7: Explain the Patient Care Partnership (American Hospital Association) and its application to the surgical patient.
CLO 2.8: Provide examples of ethical situations faced by healthcare workers; apply principles of moral problem solving and concepts of surgical conscience to decision-making.
CLO 2.9: Explain basic legal terminology and apply major legal concepts to the responsibilities of the surgical team; identify potential consequences when responsibilities are unmet.
CLO 2.10: Identify sentinel events and errors occurring in the surgical environment; list prevention methods and explain the role of risk management departments.
CLO 2.11: List the benefits of professional liability coverage.
CLO 2.13: Associate liability related to non-compliance with patient privacy standards.
CLO 2.14: Identify the process for required privacy practice documents; explain how Protected Health Information (PHI) is accessed, stored, processed, and maintained.
Foundational Medical Principles and Negligence
Hippocratic Oath: Traditional medical principles requiring physicians to maintain a high standard of moral conduct while practicing medicine.
Primum non nocere: A Latin phrase meaning "first do no harm," which serves as the guiding principle of Hippocratic medical ethics.
Negligence: Defined as the failure to use the care that a reasonable and prudent person would use under similar circumstances.
The Surgical Technologist’s Obligations
Patient Obligation: The technologist has a direct obligation to the patient.
Adherence to Standards: The surgical technologist must strictly adhere to accepted standards, regulations, policies, and laws.
Disclosure: There is an obligation to disclose details of patient care and surgical procedure activities in written documentation and during legal proceedings.
Key Legal Doctrines and Traditional Principles
Aeger primo: "The Patient First" – the motto of the Association of Surgical Technologists.
Doctrine of a borrowed servant: The master (surgeon) is liable for the acts of the servant (surgical technologist) if the master has the right to direct and control the servant's actions.
Doctrine of corporate negligence: A health care institution may be found negligent for failing to ensure an acceptable level of care was provided.
Doctrine of foreseeability: The ability to reasonably anticipate that harm or injury might result from certain acts or omissions.
Doctrine of personal liability: Each individual is responsible for his or her own conduct, even if someone else (like a surgeon) is also liable.
Doctrine of the reasonably prudent person: A standard of care that measures conduct against what a person of ordinary intelligence and caution would do under similar circumstances.
Nonmaleficence: The obligation to do no harm.
Res ipsa loquitur: "The thing speaks for itself" – a doctrine used when negligence is so obvious that it requires no further explanation.
Respondeat superior: "Let the master answer" – employers may be held liable for the actions of their employees.
Utilitarianism: An ethical theory that determines right from wrong by focusing on outcomes; the greatest good for the greatest number.
Torts and Civil Liability
Definition: A tort is a civil breach committed against another person in which the injured party can sue for damages.
Civil vs. Criminal: Most legal actions against Operating Room (OR) personnel are civil rather than criminal.
Classification: Torts are categorized as either intentional or unintentional.
Intentional Torts
Examples:
Assault.
Battery.
False imprisonment.
Invasion of privacy.
Defamation.
Intentional infliction of emotional distress.
Three Required Elements for Proof:
The defendant’s action was intended to interfere with either the plaintiff or the plaintiff’s property.
The consequences of the act were intended.
The act was a substantial factor in bringing about the consequences.
Note: Intentional torts require proof of willful actions.
Unintentional Torts and Patient Care Errors
Context: These are the most common types of errors committed by OR personnel and include negligence and malpractice.
Proof of Negligence: To establish negligence, a plaintiff must prove:
The defendant had a duty.
The defendant breached that duty.
The defendant’s negligent conduct was the cause of harm.
The plaintiff was actually harmed or damaged.
Specific Unintentional Torts:
Patient misidentification.
Incorrect procedure performing.
Incorrect drugs or administration mistakes.
Patient burns.
Foreign bodies (e.g., instruments or sponges) left in the patient.
Falls and positioning errors.
Loss of surgical specimens.
Violation of hospital policy.
Harm secondary to a major break in sterile technique.
Loss of or damage to patient’s property.
Patient abandonment.
Harm secondary to the use of defective equipment.
Documentation and Medical Records
General Definition: The process of placing information into a patient’s medical record or chart. It is a combined account of the interaction between the patient and the healthcare provider.
Standard Practices:
Anything of clinical significance must be recorded.
Events should only be recorded after they occur (recorded after the fact).
The chart serves as a legal tool to discover the source of negligent acts.
Required Surgical Documentation:
History and Physical (H&P).
Informed consent for surgery.
Intraoperative record.
Components of the Intraoperative Record
Information regarding the surgical team.
Patient’s condition before, during, and after surgery.
Patient positioning and skin preparation details.
The "Time-out" (safety briefing before the incision).
Exact times of initiation and termination of the procedure.
Details concerning drains and dressings.
Documentation of surgical counts: Sponges, Sharps, and Instruments.
Note: Anesthesia teams maintain a separate anesthesia record.
Tissue Specimens and Documentation Errors
Specimens: Require pathological study; pathology and laboratory forms must be included in the medical record.
Purpose: Documentation protects the patient, the hospital, and employees; it is used for legal, accounting, and quality assurance purposes.
Error Correction Procedure:
Never erase errors.
Mark through with a single line.
Rewrite the correct information above the error.
Initial and sign the correction.
All reports must include a legal signature.
Patient Rights and Legislation
American Hospital Association (AHA): Adopted the 12 rights known as the Patient’s Bill of Rights (1972) to emphasize collaboration among patients, physicians, and hospitals.
Patient Care Partnership: Replaced the Bill of Rights; it focuses on reinforcing patient autonomy.
Patient Self-Determination Act (1990): Establishes that each patient has the right under state law to make decisions concerning their care, including the right to refuse treatment.
Sentinel Events and Incident Reports
Sentinel Event: An unexpected event resulting in death or serious injury to a patient (e.g., falls, medication errors, intraoperative burns, loss of specimens).
Incident Report: A document describing an adverse patient occurrence and identifying witnesses to the event.
Action Steps during a Sentinel Event:
Contact the immediate supervisor.
Remain sterile unless instructed otherwise.
Follow orders from RN and physician for patient treatment.
Complete the incident report with specific details.
Risk Management and Root Cause Analysis
Root Cause Analysis: A process for identifying factors that form the basis for variations in performance. It focuses on systems and processes rather than individual performance.
Objectives:
Avoid/control financial loss.
Minimize risks to patients, visitors, and staff.
Use data to decrease harm and property damage.
Eliminate negative outcomes.
Prevention of Medical Errors
Technology: Cited as the best weapon against medical errors.
Joint Commission (TJC) National Patient Safety Goals: Focuses on reducing errors, specifically labeling all medications and containers (syringes, cups, basins) on and off the sterile field.
AST Guidelines: Provides guidelines for Safe Medication Practices and implementation of a Neutral Zone for sharps.
Safe Medical Device Act (1990)
Purpose: Expands FDA authority to regulate and track medical devices whose failure could cause serious adverse outcomes.
Hospital Requirements: Must report incidents where a device caused or contributed to injury, illness, or death to both the manufacturer and the FDA.
Scope: Includes ventilators, monitors, implants, syringes, needles, catheters, and disposables.
Ethics vs. Morals
Ethics: A branch of philosophy dealing with systematic approaches to moral issues (right vs. wrong). It is a system of behaviors, expectations, and standards of conduct for a population or profession.
Morals: Principles of benevolence, trustworthiness, and honesty used as guides for ethical decision-making.
Influences: Ethics and morals are influenced by culture, socio-economics, religious background, and life experiences.
Principles of Ethical Decision Making
Autonomy: Self-directing freedom and moral independence.
Beneficence: The quality of doing or producing good.
Fidelity: Faithfulness and loyalty.
Justice: Fairness in the distribution of care.
Non-maleficence: Duty to avoid harm.
Ethical Issues in Surgical Practice
Surgical technologists may be exposed to complex issues including:
Assisted suicide and elective abortion.
Stem cell research and genetic engineering.
Organ donation/transplantation.
Refusal of treatment.
Care for patients with HIV/AIDS.
Workplace violence.
AST Code of Ethics
Respect patient beliefs and set aside personal matters.
Protect the patient's legal and moral rights.
Promote harmony and unity for better patient care.
Follow principles of asepsis.
Maintain credentials.
Report unethical conduct.
Scope of Practice
Definition: The extent and limits of medical interventions a healthcare provider may perform.
Sources of Authority: Federal law, hospital policy, legal precedent, federal agencies (FDA/TJC), state laws, and professional organizations.
CST Role: Operates intraoperatively under the supervision of the surgeon.
Criteria for Performing Tasks:
Is it allowed by hospital policy/state law?
Does it meet the "reasonable and prudent" standard?
Is the individual prepared to accept personal responsibility for the task?
Questions & Discussion
Question: How can a CST help prevent medical errors?
Answer Context: Through adherence to organization policies, standards of practice, the code of ethics, and federal/state regulations.