3 Legal aspects
B. Debong
3.1 Legal principles – 14
3.2 Interdisciplinary cooperation in positioning the patient – 14 3.2.1 Preoperative phase – 14
3.2.2 Positioning for the operation – 15 3.2.3 Positioning on the operating table – 15 3.2.4 Changes in position – 15
3.2.5 The postoperative phase – 15
3.3 Cooperation between doctors and nurses in positioning the patient – 15
3.4 Burden of proof – 16
3.5 Documentation of patient positioning – 16
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3.1 Legal principles
A patient is to be positioned before, during and after an operation in such a way as to avoid any position-related injuries as far as possible. The doctors performing a sur- gical procedure and the nursing staff under their instruc- tion share a legal obligation to ensure that the patient is positioned correctly (as explicitly stated by Cologne Inter- mediate Court of Appeals in the judgement pronounced on 2.4.1990 – 27 U 140/88 – AHRS 0920/33).
If a patient suffers injuries because of incorrect posi- tioning (for the kind of positioning injuries cf. for examp- le Vinz, Behandlungsfehler im Zusammenhang mit der Operationslagerung, Niedersächsisches Ärzteblatt 4/2000, 20), he can demand compensation from the doctor re- sponsible for positioning and the nursing staff entrusted with positioning the patient under the doctor’s instruc- tion. In the case of hospital patients, the hospital authori- ty is also liable for possible positioning injuries as the re- gular patient’s contract partner. In legal terms, correct positioning of the patient constitutes a subsidiary obliga- tion arising from the treatment contract. The hospital au- thority and/or doctor are liable to the patient for compen- sation of damages incurred as a result of the violation of such subsidiary obligation. According to § 278 of the Ger- man Civil Code, liability is also assumed by contract for so-called vicarious assistants, in this case the nursing staff entrusted with or included in positioning the patient.
They are also directly liable for their own culpable mis- takes made in positioning the patient in accordance with
§§ 823 ff. of the German Civil Code. All those responsible for correct positioning of the patient are jointly and seve- rally liable to the patient, i.e. the patient can demand full compensation for the damage suffered as a result of his incorrect positioning from each of the liable parties and leave any corresponding settlement to the internal rela- tionship between the liable parties.
If a patient is injured because of culpable, i.e. wilfully or negligently incorrect positioning, the doctors and nur- sing staff responsible can also be prosecuted under crimi- nal law for causing negligent bodily harm according to
§ 229 of the German Penal Code.
If there is a specific risk involved with a certain posi- tioning method, e.g. the knee-elbow position (so-called
»rabbit position«) such as permanent injuries to nerves compressed by the position, the patient must be informed about this specific risk before the operation (according to the Federal Supreme Court in its judgement pronounced on 26.2.1985 – VI ZR 124/83 – ArztRecht 1985, 214).
3.2 Interdisciplinary cooperation in positioning the patient
In positioning a patient for an operation, doctors in various disciplines work together without being accoun- table to each other, in particular the surgeon and the anaesthetist. This is the area of the so-called horizontal division of labour. Here court decisions by the Federal Supreme Court in terms of civil liability law are dominated by the thought that the risks of procedures based on the division of labour must not be to the detriment of the patient (according to the Federal Supreme Court in its judge ment pronounced on 26.1.1999 – VI ZR 367/97 – ArztRecht 1999, 317 ff.).
In order to distinguish the areas of responsibility of the doctors working on an interdisciplinary basis, legal practice refers in particular to the content of the treat- ment contracts, the disciplinary boundaries indicated in the Code of Practice set out by the General Medical Coun- cil, the concrete distribution of roles in the specific case and on agreements between the various professions in- volved, which apply particularly to the aspect of patient positioning being dealt with here. Mention should be given in particular to the agreement concluded back on 28 August 1982 between the Professional Federation of German Anaesthetists and the Professional Federation of German Surgeons on cooperation in operative patient care (ArztRecht 1983, 43 ff.). This agreement has mean- while been amended with regard to positioning the pa- tient on the operating table (Anästhesiologie und Intensiv- medizin [1987], 28: 65).
Comparable agreements also exist between other scientific societies and/or professional federations, includ- ing for example the agreement on cooperation in surgical gynaecology and in obstetrics between the German Society for Anaesthesiology and Intensive Medicine and the Pro- fessional Federation of German Anaesthetists with the German Society for Gynaecology and Obstetrics and the Professional Federation of Gynaecologists (Anästhesiolo- gie und Intensivmedizin [1996], 37: 414 ff.).
While such agreements between professional medical federations are not binding in law, if in any doubt, as men- tioned above courts refer to these agreements to distin- guish the areas of responsibility so that such agreements assume great practical significance, particularly with re- gard to the responsibility for positioning a patient before, during and after an operation.
3.2.1 Preoperative phase
Responsibility for positioning the patient to induce the anaesthetic and for monitoring the patient’s condition lies with the anaesthetist (as stated concurrently by the agree- ments between the professional organisations; cf. agree-
ment between the Professional Federation of German Anaesthetists and the Professional Federation of German Surgeons, Anästhesiologie und Intensivmedizin 28 [1987], 65). This is also appropriate. During this period, where necessary the surgeon can consult his team about the operation itself and the corresponding instruments.
3.2.2 Positioning for the operation
The decision as how to position the patient for the opera- tion is always taken by the surgeon according to the re- quirements of the specific procedure, with consideration of the anaesthesia risk (loc. cit. p. 65). If the anaesthetist has reservations about the positioning required by the surgeon because it impairs monitoring and sustaining the patient’s vital functions or because of the risk of positio- ning injuries, he shall inform the surgeon accordingly. The surgeon’s decision regarding positioning is part of his me- dical and legal responsibility for the operative procedure itself justifying the increased risk of the stipulated opera- tive procedure (loc. cit. p. 65).
3.2.3 Positioning on the operating table
Responsibility for positioning the patient on the opera- ting table is fundamentally part of the surgeon’s task.
Nursing staff who position the patient on the operating table act according to the surgeon’s instructions and re- sponsibility, regardless of which specific department they belong to. The surgeon shall give the necessary instruc- tions; he shall check the patient’s positioning before star- ting to operate. However, the anaesthetist is expected to draw his attention to any obvious positioning mistakes.
The anaesthetist is responsible for positioning the extre- mities required for monitoring the anaesthetic and for administering the anaesthetic and infusions. The anaes- thetist shall proceed with all specific safeguarding measu- res required to monitor the patient and sustain his vital functions as a result of the positioning of the patient (loc.
cit. p. 65).
It is normal and correct for the anaesthetist to observe the patient’s position during the operation and to inform the operating team of any changes in position (according to the Federal Supreme Court in its judgement pronounced on 24.1.1984 – VI ZR 203/82 – ArztRecht 1984, 238).
3.2.4 Changes in position
The principles stated above about the division of labour in positioning the patient also apply unchanged to any de- cisions for scheduled changes in positioning the patient during the operation and in implementing such decisions.
If the position of the patient is changed unintentional- ly as a result of the operation itself in such a way as to in- crease the positioning risk, the surgeon and his staff are responsible for checking the situation to the extent that the changes in position and other effects on the patient’s body originate from the surgeon. If the anaesthetist notices an unintentional change in position or any other effects which are associated with risks for the patient, he must inform the surgeon accordingly (op. cit. p. 65).
In the agreement mentioned above on cooperation in surgical gynaecology and obstetrics (Anästhesiologie und Intensivmedizin [1996], 37: 414 ff., 416), explicit reference is made of the fact that during the operation, the anaes- thetist is expected to check the extremities for whose posi- tioning he is responsible.
3.2.5 The postoperative phase
Responsibility for positioning including changing the po- sition of the patient after the end of the operation through to the end of post-anaesthetic monitoring lies with the anaesthetist, unless special circumstances require the in- volvement of the surgeon during repositioning (as in the agreement on cooperation in surgical gynaecology and obstetrics, op. cit. p. 416).
3.3 Cooperation between doctors and nurses in positioning the patient
Nursing staff helping to position the patient act on the instructions of the corresponding doctor. He is legally re- sponsible for his instructions being correct (so-called in- struction responsibility). Already the lack of general in- structions about the positioning of the patient on the operating table and the lack of corresponding controls is considered to be an organisational error by legal practice (according to the Federal Supreme Court in its judgement pronounced on 24.1.1984 – VI ZR 203/82 – op. cit.). The (senior) doctor must also check that his instructions have been implemented correctly (according to the Federal Supreme Court in its judgement pronounced on 8.3.1960 – VI ZR 45/59 – legal decision on doctor liability 0500/4 regarding monitoring a nurse who is responsible for the positioning of a patient during surgery with an electric knife).
The nursing staff responsible for positioning the pa- tient according to the doctor’s instructions are liable for correct implementation of the positioning tasks entrusted to them (so-called implementation responsibility).
The doctor entrusting a nurse with the positioning of a patient must convince himself that the nurse is ade- quately experienced in the technique to be used for positio-
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ning the patient. As part of the so-called vertical division of labour, »liability is attributed from the bottom up- wards«. In contractual terms, the hospital authority and doctor are liable for any positioning mistakes made by nursing staff in accordance with § 278 of the German Civil Code. When it comes to statutory tortious liability, while on the one hand § 831 of the German Civil Code offers exculpatory possibilities if evidence is provided that due care was taken in the selection and supervision of the nursing staff, on the other hand, high demands are made in this context according to the court decisions taken by the Federal Supreme Court: at least occasional controls by the doctors are necessary (judgement pronounced on 8.3.1960 – VI ZR 45/59 – loc. cit.).
A nurse who positions a patient on a doctor’s orders is tied to the doctor’s instructions. If the nurse performs the instructions correctly, she is only liable for any possible positioning injuries if she omits to perform a required demonstration in breach of her duties or if she can be accused of assumed fault (cf. judgement pronounced by the Palatinate Intermediate Court of Appeals Zwe ibrücken dated 20.10.1998–5 U 50/97 – MedR 1999, 419).
3.4 Burden of proof
The possibilities for the courts to come to a decision are also limited. For this reason, it is not always possible for civil liability proceedings to ascertain the material truth.
Frequently the outcome of such proceedings depends rather on whether the party bearing the burden of proof can really provide the proof expected of it. As a basic rule, the patient as claimant has to demonstrate and prove all facts justifying his claim. But technically correct positio- ning of the patient on the operating table and compliance with all medical rules to be observed in order to protect the patient from any positioning injuries are measures falling within the risk area of the hospital and the medical staff. The nursing staff and responsible doctors are capa- ble of coping fully with these measures. In contrast to the patient, the nursing staff and doctors are in a position to clarify the facts of the matter in this respect. According to the Federal Supreme Court, this justifies shifting the bur- den of proof to the hospital and to the doctors to prove that the patient has been correctly positioned on the operating table and that this has been checked correctly by the doctors (according to the Federal Supreme Court in its judgement pronounced on 24.1.1984 – VI ZR 203/82 – ArztRecht 1984, 238). The nursing and medical staff can, for example, provide the necessary evidence of correct positioning by virtue of the fact that the patient was brought into the correct position on the operating table by an experienced member of the nursing staff, without there being any signs of deviations from what is required from a medical point of view (cf. Eberhardt, Ärztliche Haft-
pflicht bei intra-operativen Lagerungsschäden, MedR 1986, 117 ff., 121).
Given that the nursing and medical staff have to pro- vide the proof for correct positioning in any legal dispute, great significance is accorded in practical terms to docu- mentation of the patient’s positioning, because the nur- sing and medical staff will have to answer for any do- cumentary omissions. In the case of documentary omis- sions in civil liability proceedings, it is presumed that the documented measure was not performed. It is then up to the nursing and medical staff to provide other evidence, such as evidence by witnesses that the measure had in- deed been performed, that the patient for example had been correctly positioned on the operating table although there is no corresponding documentation. In this context, it is advisable for hospital authorities, surgeons and anaesthetists to issue written procedural instructions for positioning the patient, in accordance with the spec- ific type of operating table being used, technical equip- ment, coverings, disinfectants, etc. (as rightly stated by Vinz in Behandlungsfehler im Zusammenhang mit der Operationslagerung, Niedersächsisches Ärzteblatt 4/2000 S. 20 f.).
3.5 Documentation of patient positioning
The documentation of the surgical procedure includes all essential diagnostically and therapeutically relevant do- cuments, circumstances and measures, in a form which is adequately clear for the experts, i.e. not so that a lay person can understand them straight away (as in Laufs, Arztrecht, 5th edition 1993, margin number 455, p. 257).
This means that it is not necessary to draw up a de- tailed report about how the patient was positioned in con- crete terms. On the contrary, it is sufficient for the positio- ning to be described in technical keywords or illustrated by symbols to make it clear for an expert which method was used for positioning and operating on the patient (as pronounced explicitly by the Federal Supreme Court in its judgement on 24.1.1984 – VI ZR 203/82 – ArztRecht 1984, 238). In the case of an operation for a slipped disk in which the patient was positioned on the operating table in the so-called knee-elbow position (»rabbit position«), the Federal Supreme Court considered it to be sufficient that this kind of positioning was documented. If the type of positioning during the operation is generally accepted, then the technical procedure for positioning the patient transpires from generally accepted medical rules which must be observed in this case. This does not have to be recorded in writing each time. This would only be neces- sary if in isolated cases the positioning deviated from the standard procedure or if not insignificant corrections took place during the operation. On the other hand, if an
operation proceeds without anything special happening, there is no need to make any records about the unchanged position of the patient (according to the Federal Supreme Court in its judgement pronounced on 24.1.1984 – VI ZR 203/82 – ArztRecht 1984, 238).
The routine measures which do not require documen- tation also include actually controlling the correct posi- tion of the arm before and during the operation (adjusting the abduction angle and observing the infusion arm) (according to the Federal Supreme Court in its judgement pronounced on 24.1.1995 – VI ZR 60/94 – ArztRecht 1996,
62). By contrast, it is advisable to make corresponding reference to any risk factors in the operating report, docu- menting how these were taken into account, for example including any effects on the positioning of the patient (as stated by Vinz, loc. cit. p. 21). Such risk factors can include severe emaciation, neurological disorders, joint contrac- tures, atrophic skin diseases, abnormal perspiration, excessively extended positioning of the operating table because of blameless, intraoperative surgical or anaesthe- sia complications, long-term blameless cardiovascular depression or allergies to skin.
