Prevented Risks

The risks in this class are, by consensus of the health care profession, prevented at whatever cost is necessary. Prevented risks include operating on the wrong patient, allowing unqualified persons to perform surgery, and leaving large foreign bodies in surgical patients. The common denominator among prevented risks is that the negligent nature of their occurrence is obvious to a layman. While this does not mean that there is no possible nonnegligent explanation of the risk, the burden shifts to the health care provider to prove that the injury was not caused by negligence. The occurrence of a prevented risk has special legal consequences. If the risk is obvious to a lay juror, the juror will be more likely to return a strongly adverse judgment. If the plaintiff can show that the risk was so obvious that it could not have occurred without a willful disregard of the patient's well-being, the court may allow special damages (punitive damages) to punish the provider.

The law recognizes a type of action called res ipsa loquitur that is sometimes applied in cases of prevented risks. Roughly translated, it means "the thing speaks for itself." Legally, this is used in cases where the injury was clearly due to negligence but the details of the negligence are unknown. This doctrine was first recognized in the case of a man who was in the path of a barrel that rolled out of the second-story window of a warehouse. The man was struck by the barrel and severely injured. In the trial of the case, the defense attorney argued that the plaintiff did not know what events preceded the barrel rolling out of the window and thus could not prove that the warehouse was negligent. The plaintiff's attorney countered that barrels do not normally roll out of warehouse windows. The mere fact that a barrel was res ipsa locquitur; "it spoke for itself," and it said that the warehouse was negligent.

Res ipsa locquitur is important in risk classification because it defines the occurrence of certain risks as negligent without the need to establish a professional standard by expert testimony. The classic example of res ipsa locquitur is the foreign body case. When a surgeon leaves a foreign body in a patient, it is assumed to be due to negligence. The patient does not need to have a physician testify that a "normally prudent" physician would not have left a clamp in the patient. However, while there is a presumption of negligence, this presumption can be rebutted. For example, a defense for the surgeon is that the surgeon relied on the instrument count performed by the scrub nurse. (in most states, the counting of surgical instruments and sponges is considered a hospital-controlled activity.) If the count was incorrectly reported to be complete, the hospital, not the surgeon, would be liable.

Some states have limited the use of res ipsa locquitur in medical malpractice litigation. This should not lead to a false sense of security. Even if the jury members are instructed not to rely on their own feelings about whether the incident was negligent, they tend to ignore these instructions. A jury that is faced with a foreign body case, a person operated on by mistake, or a similar incident is likely to grant a large monetary award unless the provider can convincingly justify how the incident occurred despite the provider's best efforts.

The quality control manager must adopt a "zero defects" philosophy toward prevented risks. There is no acceptable level of occurrence for these risks. This is very important because the occurrence of even one prevented risk can result in a financially devastating claim. When this type of risk does occur, the subsequent actions of the health care providers and the quality control manager often will determine the magnitude of the claim against the provider. Successful mitigation of damages will reduce the potential award, and the establishment of good rapport with the patient may prevent a suit altogether.

The most important concern in mitigating damages is to see that the patient gets any needed medical care at once. For example, if it is discovered that a clamp was left in the patient, action must be taken to ensure that the clamp is taken out. Explain what happened to the patient, get permission to remove the clamp, and remove it as soon as medically feasible. Do not, under any circumstances, charge the patient for the second surgery or the extra time in the hospital. This seems a simple point, but most billing systems are automated to the point that such bills will be sent unless the quality control manager specifically stops them. The best approach is to pay all of the patient's bills, even if this means that the hospital must pay the surgeon. If the patient sues, the suit will not be against the surgeon only.

The quality control manager must never allow the occurrence of a prevented risk to be "covered up." The nature of the risk is such that the patient will suffer much more severe harm if remedial medical care is not begun at once. A cover-up is an intentional action and will enrage a jury. All medical personnel, especially the nursing staff, must be repeatedly reminded that their first duty is to protect the patient. They must promptly report the occurrence of all risks. The difficulty arises for the quality control manager if the patient's physician wishes to cover up the incident. This hospital administration may be unwilling to allow the quality control manager to inform the patient directly, preferring to leave this task to the physician. In this situation, the quality control manager must try to prevent any hospital personnel from participating in a cover-up. This will not protect the hospital from liability for withholding information from the patient, but it will encourage the physician to be honest with the patient.

Intentional harmful acts are a type of prevented injury. Acts by employees are attributed to their employer if the employees' actions are in the course and cope of their employment. The intentional acts of an employee that are not in the course of employment may be attributed to the employer if the employer was negligent in hiring the person. From a quality control point of view, the employer must have employment criteria that would detect employees who are a potential hazard. The employer must also be willing to take quick action if an employee is found to be intentionally harming patients. While there is some protection if the injury is due to an unforeseeable action beyond the course and scope of employment, the provider facility will usually bear the liability for the actions of its employees.

The risk of one patient intentionally harming another becomes legally significant if the health care provider is on notice that the patient may be dangerous. This demands that certain psychiatric admissions and all patients with histories of violent behavior be carefully monitored and segregated from other patients. The nursing staff must be cautioned to report any suspicious behavior to the administrator, especially behavior that is indicative of paranoid psychosis. It is important that the nurses be trained to recognize psychotic behavior, whether organic or drug-induced. It is not unusual for physicians to admit dangerous patients onto general hospital wards, often with the mistaken impression that it is very difficult or impossible to have a dangerous patient committed to a psychiatric facility. The administrator can deal with this problem by prearranging with the necessary governmental officials and psychiatric professionals to have the paperwork for an emergency commitment ready at all time. The hospital will be held responsible for the actions of a violent patient if it was or should have been on notice of the danger and did not act expeditiously. This is a particularly vexing problem because there is also a duty to care properly for the dangerous patient. If necessary, transfer to a proper facility must be arranged. But under no circumstances should the patient just be turned out of the hospital.

The intentional acts of trespassers are a serious problem for health care providers. Trespassers fall into two classes: those who impersonate medical personnel, and those who act as laymen. The hospital has a duty to protect patients from strangers, but that duty is fairly limited if the person is a routine visitor. A much more serious problem arises from trespassers who impersonate medical personnel, especially physicians.

In almost all hospitals, security depends upon the assumption that only a physician looks or sound like a physician. This leads to the "white coat" syndrome, which means that anyone in a long white coat who knows the jargon can do almost anything that person wants to do in a hospital. In one study, nurses were called by an imposter claiming to be a fictitious physician and asked to administer a dangerous overdose of medication to a patient. In no instance did the nurse question the authority of the unknown physician to prescribe for the patient, and in only a few instances did the nurse question the obviously incorrect dosage of medicine.

While the "borrowed servant" doctrine might protect the hospital in cases where the nurse follows an incorrect order by a member of the medical staff, this protection would evaporate if the nurse carried out the order of a nonmember of the staff. This problem also arises when nurses accept medication orders from nonphysician medical personnel, such as physicians' assistants. Physicians' assistants have no legal standing to initiate orders on patients or to exercise independent medical judgment.