Archive December 2019 XX, No. 12

Medical Malpractice: In the OR, You're Most Likely to Be Sued for ...

Surgical pros must most often defend negligence and battery lawsuits.

William Duffy

William Duffy, RN, MJ, CNOR, FAAN


TOO HOT TO HANDLE Can handing a surgeon a just-flashed instrument constitute negligence, which legally is the failure to use reasonable care? You'd need to show you acted as other providers would in a similar situation.

First the bad news: There's no way to eliminate the risk of a lawsuit. As long as you are practicing, the risk exists. The good news: You can manage risk and limit liability. We're going to show you how to do just that by touching on the 2 major areas in which surgical professionals most frequently get sued: negligence and battery. Let's look at the requirements for proving you committed either of these offenses and how you can minimize your exposure to legal trouble in the first place.

Is this negligence?

You flash-sterilize an instrument during a case. It's still hot when you hand it to the surgeon, who uses it and gives the patient third-degree burns. Would you be liable for negligence or did you meet the standard of care?

Negligence is a failure to use reasonable care, resulting in damage or injury to the patient. It hinges on the expectation that healthcare professionals will meet a certain standard of care, which isn't as lofty as you might think. You simply need to show you acted reasonably, in tune with what other providers would do in a similar situation. To be guilty of negligence, the plaintiff must provide evidence that these 4 elements were present during the incident in question:

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