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

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.

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:

• Duty. In every healthcare interaction, you have a duty to the patient to act reasonably. Not surprisingly, duty is very easy to prove.
• Breach of duty. This boils down to what you did compared to what an average "reasonable person" in your position would do. Chances are, none of the jurors during a medical malpractice case will be members of the healthcare industry — so how can they know what a "reasonable person" would do in your shoes? You and your lawyer need to frame it out for the jurors. Bring AORN's recommended practices as evidence. Bring in your facility's policies and procedures, which reflect your local standard of care. Solicit expert testimony from nurses who can tell the jury how you met the standard of care. Remember, you don't need to convince the jury you're the perfect provider. You just need to show you were average and reasonable.
• Causation. If a breach of duty has been established, the patient must show it led to specific damage. They need to tie your breach of duty to the injury they suffered in order to prove what you did or didn't do caused harm. The courts have said that to prove causation, the damages must have been foreseeable as a result of the act.
• Damages. If causation is proven, the patient must quantify their financial damages based on pain and suffering, impacts on earning capacity, costs to correct or treat the injury and life expectancy, among other factors. Damages can vary widely depending on the jurisdiction.

Let's revisit the case involving the hot instrument. If you had told the surgeon, "I'm not giving this to you, it's too hot," and the surgeon replied, "Give it to me anyway," you're likely to be viewed as having met the standard of care by explicitly warning him not to proceed with using the instrument. But if you just handed it to him and said, "Check it, it may be warm," you may be viewed as not adequately warning the physician of the temperature on the instrument. If you have concerns about something, say it clearly and strongly.

There's nothing you can do to prevent a patient from suing you. That's their right and you can't eliminate the risk. What you need to do is manage it. Don't get too upset about being named in a lawsuit. It's only a notification of a difference of opinion between you and your patient. Focus your energy on making sure you have the evidence to back your side of the story, to prove to the jury that you met the standard of care. If you do that, you should have a good chance of navigating this difficult experience. OSM