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Legal Update
Do You Have a No-Drive Policy?
C. Gregory Tiemeier
Publish Date: October 10, 2007

C. Gregory Tiemeier, Esq. It's your job to protect your patients before and during surgery and in the PACU - but what about once they've left the building?

C. Gregory Tiemeier, Esq.\

After their procedures, some patients will be unable to drive, the result of dilating drops or a vision-impairing operation, the rigors of the procedure or the effects of anesthesia. Some of these patients may believe they're able to drive - and attempt to - despite your recommendation they get a ride. Read on to find out how a formal no-drive policy can help reduce the risk to them as well as to your facility.

Protecting your patient and your facility
The first and most obvious risk is that post-op impairment may result in an accident, injury or death if the patient tries to drive home. But your facility is at risk, too, if an impaired patient gets into an accident. If a patient becomes a plaintiff, his lawyer will probably conclude that the person or facility who incapacitated the client, then released him onto the street, should be held responsible for any mishaps.

And the liability risk isn't limited to the patient. Anyone who is put in harm's way - a passenger, a pedestrian in a crosswalk or another motorist - could potentially have a claim against the physician, the post-op nurse or the facility.

Simple, good communication is the key to preventing injury to the incapacitated patient or the luckless person who may cross his path.

So follow the doctrine of informed consent, which says you must let a patient determine what should or shouldn't be done to his body after you've informed him of the relevant considerations. The informed-consent process, conducted properly, will result in a patient who knows about the procedure, risks and viable alternatives - and who isn't surprised by the normal side effects of the procedure.

For example, if you tell a patient a blepharoplasty will leave him with swollen and bruised eyes, he's less likely to be concerned by that result than a patient who thinks he'll look like new one day post-op.

What to include in your no-drive policy
The same informed-consent consideration should apply to day-of-procedure transportation considerations: Tell the patient, well in advance of the procedure, he won't be able to drive post-op. Here's a checklist of nine steps to include in your no-drive policy to ensure informed consent:

  • >Make a list of procedures performed in your facility that may impair a patient's ability to return to work or home after the procedure.
  • Post the no-drive procedures list where anyone with patient contact will have access to it, including staff who schedule appointments, technicians or nurses who care for the patients post-op and receptionists who talk to patients by telephone - in addition to the patients themselves. If the policy applies to all patients, post a notice that says so.
  • When you do a consultation or schedule the patient's procedure, tell him he is on the no-drive list and that he must arrange for transportation home after the procedure. If the patient resists, explain the reasons he'll be unable to drive himself and hold firm.
  • Note in the appointment book or on the scheduling software, either with initials or a color code, that the person will be a no-drive patient.
  • If you call patients shortly before their appointment or procedure as a reminder, take this opportunity to remind them they shouldn't drive themselves home.
  • Confirm during pre-op admission that the patient has arranged for a driver. If the patient hasn't done this, give him a list of phone numbers for taxi, bus or limousine services he can call while waiting to be seen.
  • Before anesthesia or sedatives are given, the physician or a staff member should remind the patient one more time about his no-drive status and confirm transportation arrangements. If the patient hasn't made arrangements, the doctor or staff member should offer to reschedule the procedure.
  • If the patient refuses to reschedule, note it in the chart, and require the patient to sign a document acknowledging he was informed of his no-drive status and that he was offered transportation alternatives and rescheduling, but wishes to proceed. Keep copies of this form in the pre-op area. Note the patient's signature with a formatted entry (if you use electronic record-keeping) or on the chart. Place the form in the patient's chart.
  • Remind the patient at discharge that he shouldn't drive himself. If the patient's still planning to drive himself, don't physically restrain him. The potential for problems - for the staff and patient - is too great.

Managing risk
If you follow these precautions, you should have a good defense if a lawsuit occurs. Whether such litigation is right or wrong is irrelevant. It's an actual risk, and you can manage it with some foresight and preparation.

Not only is it in your best interest, but in your patients'; regardless of legal risk, you should do your best to act in your patients' best interests. Besides, a well-informed patient is usually a happy patient, and happy patients are best for your practice.

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