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LEGAL UPDATE
Most, if not all, discharge instructions direct post-surgical patients to
call an identified contact in the event of unanticipated symptoms or
complications. Sensible policies are established to handle such calls.
Even with these safeguards in place, however, the patient might not
receive optimal care.
Although the nurse in the Flanagan case followed a reasonable protocol to the letter, she still shared the responsibility for the unfortunate result. When a jury analyzes a bad outcome in retrospect, it often
allocates responsibility to parties who could have averted the outcome, even if they haven't violated a standard of care. The worse the
outcome, the more pronounced is the jury's tendency to allocate the
responsibility.
Another thing to remember is that a jury is focusing on the treatment of 1 patient among the 40 the nurse had contact with that day, or
the thousands she's called on the day after surgery without incident.
When a nurse's actions are isolated, dissected and analyzed in the
courtroom, there is a tendency for judgment to be less realistic than if
the conduct were evaluated in context.
The basis for the nurse's liability in this case was the joint decision
between her and the patient that the gynecologist should be called.
Realistically, the nurse was not in a position to make this decision, based
on what the patient had described over the phone. The discharge instructions gave the patient the criteria and sole responsibility for making the
decision. (Nonetheless, an appeals court later upheld the jury's finding
that the joint decision meant that part of the responsibility for notifying
the doctor was the nurse's.)
What was documented?
The nurse could have averted this retrospective assessment of liability
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O U T PAT I E N T S U R G E R Y M A G A Z I N E O N L I N E | J U N E 2013
