The Lombardi Law Firm Blog

Can nurses be liable for an unconsented surgery?

Can the nursing staff be liable when the doctor does an unconsented tubal ligation?

I’d say probably if you knew the doctor was going rogue and did nothing about it. But that’s not the question you should be asking. As a surgical nurse you should ask what should the nursing staff do after it occurs? To answer those questions ask what duty you owe to the patient and to future patients. Why did you go into nursing in the first place? Doctors are not omnipotent Gods; they are humans who make mistakes or who in some instances go off the reservation. Some even commit wrongs and if you don’t step forward to stop them the instances where this occurs can go undetected over a long period of time.

What duty does a nurse have to report unconsented surgical procedures?

This might seem like an odd question to pose. Since all surgery is supposed to be only by consent, why would anyone ask about a nurse’s duty to report unconsented surgical procedures? In 30 years of practicing law I’ve run into a several cases involving unconsented surgeries. I’ve seen several reports on the IB as well and as taxpayer that is paying for this nonsense I think we all need to question why.

I’ve done some research to better understand what may be running amok in the medical field that allows wrong-site surgeries and other unconsented surgery and have found most of this fall into just a few categories. Wrong-side surgeries are a major category of unconsented surgery and others were sterilization procedures to female surgical patients.

Why should we talk about this? Shouldn’t we hide this from the public’s view?

It’s important to discuss this because when the surgeon does an unconsented surgery they place nurses in a difficult position. Let’s talk about both surgical situations.

Wrong-site, Wrong-procedure and Wrong-patient Surgeries

These surgical situations are exactly what you might think. The surgery is scheduled to operate on a patient’s right side and instead the surgeon begins operating on the left side. Legs, arms, finger, kidneys and any other body part where you have two of them can be wrong-sided surgeries. These are mostly mistakes caused by a failure to simply read the patient’s chart before beginning the surgery. Proper surgical protocol requires the surgical staff to mark the surgical site and to hold a time-out before starting the surgery. This is the first example of the nursing staff being placed in a decision situation. When the site-marking or time-out isn’t happening, the nurses and other members of the surgery team should wonder why and then need to voice concern.

Perhaps they are fearful of being placed in a position of the surgeon embarrassing them in front of their peers or worse yet, blackballing the nurse and refusing to allow him/her to work on their surgical team. The approach you may wish to employ is to inform HR about your concerns and to suggest the hospital create an anonymous reporting system for situations such as this. Egos abound and when they create liability on the part of the hospital they need to be checked.

A surgeon is the captain of the ship and in that role commands the surgical team. When the captain fails to lead and does it repeatedly it is just a matter of time before a serious mistake is made. Should the nurses put up with this break from protocol? Or should they act, talk first to the head nurse, then the surgeon and finally to hospital management? To answer those questions consider what happens to the surgical team after a wrong-side surgical mistake. Simply put they all get sued in order to get to the bottom of who knew what and when. Is it fair? Well, legally it’s not about what’s fair, it’s about what went wrong, why and who knew.

Preventing Wrong-Side, Wrong-Site Surgeries – A tool kit

Surgical Site Marking – Take a surgical Sharpie and mark the patient’s body where the surgical site is located. It’s done with the patient to make sure everyone is on the same page.

Time-Out – The TO occurs just before the surgeon cuts on the patient and perhaps before the patient is anesthetized. The surgical team huddles up and verbalizes the identification of the patient’s identity; the surgical procedure that will take place and which side and organ is the concern. It’s really pretty simple. “I’m calling the time-out. Are you Mr. Smith? Yes, okay. And we are here to operate on your left knee? And we are doing a knee replacement?” Everyone needs to be in agreement and if there isn’t complete agreement the team needs to know why.

Why Can The Surgical Team Get Sued After a Wrong-Procedure Surgery?

It’s sort of like playing on any team. One player doesn’t just lose the game; the entire team loses. And surgical teams are a team. Each has a role and each is responsible for the team’s protocol being followed. If the surgery is for a right side operation and the surgeon is standing and then cutting on the left side of the patient, shouldn’t someone say something? Don’t the nurses have some responsibility to speak up if the surgery site isn’t marked and the time-out hasn’t happened? Of course they do. Wrong-side, wrong-patient and wrong-procedure surgery mistakes are a team mistake, not just a surgeon’s mistake. If nurses instead cooperate to expose unconsented surgical intervention there is no reason to sue them as being part of the problem. Being part of the solution is as important after the fact as it is before anyone discovers the situation. So the legal community encourages nurses to be a part of the solution.

So nurses, if the site isn’t marked and the time-out weren’t called then by all means the law encourages you to speak up.

That’s enough today. Tomorrow we’ll discuss the other unconsented surgical procedure. Those are different situations and may not be as obvious to the nursing staff.