CARE WITH CAUTION What are the liability ramifications of a post-op phone call?

After minimally invasive surgery, post-op observation is usually brief and uneventful. Complications can always arise, however, some manifesting themselves as the patient recovers at home. As such, it's important to keep in mind that the phone conversation or other contacts you have with patients having post-discharge complaints may carry legal liability. Does the advice your nurses dispense during follow-up calls put your facility at risk?

Who's responsible?
Consider the case of Flanagan v. Southside Hospital, decided in 1998. Christine Flanagan underwent a bilateral tubal ligation with no complications in the OR or in PACU, and was discharged from the Bay Shore, N.Y., hospital. The next day, a nurse placing a follow-up call discovered that Ms. Flanagan was suffering abdominal discomfort. While her discharge instructions had directed her to call the hospital if she noticed increased pain, she had not done so.

After discussing the discomfort, the nurse and the patient agreed that Ms. Flanagan should call the gynecologist who'd performed the surgery about the complication, a decision that the nurse documented in the chart. Ms. Flanagan didn't make the call, though, and after a few days, during which she became increasingly febrile, she presented at the hospital's emergency department with an acute abdomen. An exploratory laparotomy led to a bowel resection with colostomy to repair what was either a delayed colon perforation or a micro-perforation that had progressively enlarged.

Ms. Flanagan and her husband sued the gynecologist for lack of informed consent and negligence in causing the injury. The lawsuit also claimed the hospital and nurse were responsible for aggravating the injury, as they didn't notify the gynecologist of the patient's ongoing abdominal pain.

After a trial in which expert gynecologists testified for both sides, a jury found that the patient gave informed consent and that the gynecologist wasn't negligent in causing the bowel perforation. There was a delay in treatment, however, and while the jury assigned 85% of the responsibility for that delay to the patient, it assigned the other 15% to the nurse. The patient may have agreed to make the call, the jury noted, but the nurse's superior knowledge required her to make certain that the gynecologist was aware of the post-op complication.

Case lessons
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 if she'd simply explained the criteria and ensured that the patient knew it was her decision what to do from that point forward. Had the patient been uncertain, she would have erred on the side of safety by calling her gynecologist or returning to the hospital. If the patient decided not to, it would have been her decision and hers alone. Had the nurse's documentation noted that she'd clarified the discharge instructions and let the patient decide how to proceed, she wouldn't have shared the responsibility for the patient's decision to defer the call, and the complications that followed.