InfoLAW: Operating Room Nursing

Perioperative nursing is a complex specialty of nursing that encompasses care before, during, and after surgery. Reported case law helps identify potential physical risks to surgical patients and possible legal risks for operating room nurses. This article presents a variety of case studies that highlight some of the legal risks involved with perioperative care.

The summaries that follow are real Canadian cases and are provided as a reminder that regulated health professionals are legally responsible for that which is within their control. The vigilance of the perioperative team members includes many practices and procedures to assist in avoiding harm to their patients. The goal of quality care in the perioperative environment is aided by patient safety measures such as the Canadian Patient Safety Institute’s (CPSI) Surgical Safety Checklist and Never Events in Hospital Care in Canada.

Pre-operative Care

Consent

Obtaining informed consent for surgery is the responsibility of the practitioner proposing the intervention. Nurses play a crucial role in patient education and in ensuring the right patient is being prepared for the right procedure. This is illustrated in a case where a patient was having follow-up surgery to repair damage that occurred in a previous surgery. During the pre-op check-in, the patient insisted on writing an additional phrase on the consent form, indicating that the patient wanted a part of her soft tissue to be reattached. The patient also and directed the nurse not to let the surgeon excise the area. The nurse assumed that the patient had discussed this with the surgeon therefore did not bring it to the surgeon’s attention. Post-op, the patient discovered that the excision had taken place despite their request. The patient brought a claim against the surgeon and the nurse, which the patient subsequently won. The Court found that the nurse would have discharged her duty if she had brought the pre-op patient’s concerns to the surgeon.¹

Infection

A patient, who was a known staphylococcus aureus carrier, died from septicemia following a splenectomy. The cause of death was staphylococcal sepsis. Pre-operatively, the patient was given clippers to clip his own hair. While clipping his 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. The judge found that the patient’s sepsis was caused by 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. The judge also commented on the role of the operating room nurses and said that if the operating room nurses had seen the scratches and failed to bring them to the surgeon’s attention, they too would be liable.²

Incorrect Site

A patient had a three-centimeter 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. 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. The trial judge stated that marking the location before surgery with a marker ought to be the practice of all breast surgeons. The court found 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 and the consequent removal of the wrong tissue.³

Intra-operative Care

Foreign Bodies / Retained Sponge

A patient developed a severe post-operative infection after a presacral neurectomy. A laparotomy was performed and a non-radiopaque roll, six feet long and six inches wide, was discovered. Two months passed before the surgeon informed the patient about the retained roll. 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 presacral neurectomy’s operative count. 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.⁴

Burns

A patient sustained second degree burns on her buttock during a procedure to remove rectal tags. The cautery ignited antiseptic vapours from solution which had pooled between the patient’s buttock and the operating room table in an area screened by the lithotomy drape. 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 antiseptic 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.” These warnings also cast a duty of inspection upon the surgeon that was not met.⁵

Procedural care

The primary purpose of documentation is to record relevant patient information so that the patient is cared for properly by any health care worker assigned to them. It also serves as a record of communication between health care professionals. The importance of nursing documentation done at the time care was given is illustrated in a lawsuit against a hospital and several surgeons attributing post-operative complications to undiagnosed and untreated compartment syndrome. In this case, the patient complained of pain the day after they had undergone de-rotational tibial and fibula osteotomy. The nurses had conducted and documented post-operative assessments, along with any subsequent assessments and interventions ordered by the orthopedic resident. Nevertheless, the patient insisted that he developed compartment syndrome as the result of his care team’s negligence. The chart, with its dated and timed nursing notes, was used as evidence at trial. During cross-examination, the patient conceded that where the nursing notes differed from his recollection of events, the nursing notes should be preferred as a more accurate reflection of the events. The patient’s claim was dismissed.⁶

In another case involving documentation during procedural care, a patient aspirated food from her stomach during a scheduled gastroscopy. She died two days later as a result. The gastroenterologist was found negligent with respect to the pre-procedure dietary instructions given to the patient and for continuing with the gastroscopy after encountering food and liquid in patient’s stomach. The court noted that there was conflicting testimony about when the regurgitation occurred because there was nothing in the contemporaneously written hospital records about when it started or stopped. This was an important intra-procedural event that warranted inclusion on the patient’s chart to inform her post-procedure care.⁷

Post-Anesthesia Care

The court may conclude charting entries are unreliable when factual inaccuracies are discovered within them. A malpractice suit was commenced after a patient, who was admitted to hospital seven days postpartum with vaginal bleeding, died after the third emergency surgery to address it. The patient’s family believed she died because of negligent administration of dopamine.

Dopamine had been ordered and given between surgeries in an effort to stabilize her. The nurse who started the infusion and titrated the dopamine testified at trial, responding to questions about the charting done at the time. The nurse stated that after the patient was transferred to another hospital, she completed her charting by reconstructing what had taken place in the preceding three hours, according to what she had jotted down on paper whenever she could. This led to inaccuracies in the times attributed to some interventions. Cross-referencing her charting with the times on the cardiac monitor strip revealed a discrepancy of almost 20 minutes.

Expert witnesses had written reports and based their opinions on events documented in the chart that were now revealed to be inaccurate. Their opinions on the timing of the brain damage could not be admitted as evidence. The trial was delayed for weeks to the expert witnesses could reconsider their opinions.⁸

Risk Management

Risk management strategies can decrease the incidence of patient injury and the risk of potential liability. These may include:

• Ensure that you have the appropriate education, skills, and experience
• Follow professional guidelines, standards, and institutional policies
• Keep current by attending in-services and specialty conferences (e.g., Operating Room Nurses Association of Canada), reading professional journals and materials, and obtaining specialty certification where appropriate
• Identify, document, and report patient safety concerns
• Report any adverse events via the appropriate channels
• Consult risk management resources such as the employer’s risk management department and the Canadian Nurses Protective Society

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1. Keane v. Craig (2000) O.J. No. 2160 (Sup. Ct.) (QL)
2. Crandell-Stroud v Adams (1993), N.J. No. 224 (S.C.(T.D.)) (QL)
3. Ainsworth v. Ottawa General Hospital (1999) O.J. No. 2157 (Sup. Ct.) (QL)
4. Shobridge v. Thomas (1999) B.C.J. No. 1747 (S.C.) (QL)
5. McSween v. Louis, [1997] O.J. No. 3702 at para. 26 (Ct. J. (Gen. Div.)) (QL)
6. Ball v. Amendola (2009) CanLII 55309 (ONSC), <https://canlii.ca/t/264fn>
7. Rycroft Estate v Gilas, 2017 ONSC 1397 (CanLII), <https://canlii.ca/t/h03qm>
8. Dybongco-Rimando Estate v. Lee (1999) O.J. No. 1426 (Sup. Ct.) (QL); The court determined the patient’s doctors were negligent in a later trial, see Dybongco-Rimando Estate v. Lee (2001) O.J. No 3658 (Sup. Ct.) (QL)

December 2007, Revised March 2024

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.