Chapter 3

Legal Concepts in Nurse Anesthesia Practice

Few issues in nurse anesthesia practice cause the type of consternation that legal issues do. Perhaps it is that they are not known to nurse anesthetists as well as the issues surrounding the actual administration of anesthesia. This chapter attempts to demystify some basic issues surrounding the interaction of the legal and anesthesia worlds. This chapter is not intended to give specific legal advice.

Sources of Law

The source for all American law is the Constitution of the United States.¹ All governmental power, state and federal, stems from that document. The Constitution cannot be changed by legislation nor can the President act in contravention of the Constitution. The Constitution can be changed only by amendment, a difficult process.² The final authority on the interpretation of the Constitution is the Supreme Court of the United States.³

The Supreme Court of the United States, however, makes rulings only on laws in reference to federal law. State laws are interpreted by their respective state courts, unless those laws violate the Constitution of the United States or other federal laws. If the state law violates the U.S. Constitution or other federal law, the federal law supersedes.⁴

Laws may come from any of the three branches of government set out in the Constitution, the legislative, the executive, or the judicial branch. The legislative branch, in the federal system also known as the Congress, creates laws that are known as statutes. These statutes must be passed by both houses of Congress, the Senate and the House of Representatives, after which they are presented to the President. If the President signs the bill, it becomes law. If the President vetoes the bill, Congress can override that veto by a vote of two thirds of both houses of Congress. States have similar procedures, but the exact process varies slightly between states.

Regulations are promulgated by administrative agencies. On the federal level these include agencies such as the Food and Drug Administration (FDA), the Occupational Safety and Health Administration (OSHA), and other agencies. On the state level, regulations are promulgated by agencies such as boards of nursing, medicine, and dentistry. Administrative agencies create regulations, and they also may have the function of determining whether regulations and statutes were violated. In this quasijudicial function, a license may be revoked or a person may be fined by the administrative agency. The actions of administrative agencies are reviewable by courts. Courts will review the process used and whether an agency’s actions were within its statutory powers, but they generally do not review decisions based on their expertise in their respective fields.

Nurse anesthetists must maintain an awareness of what regulations apply to them. Failure to adhere to the board of nursing regulations and standards of care may result in actions against a nurse anesthetist’s license, up to revocation of the license and fines. In 2003 a nursing board in Oklahoma revoked a nurse anesthetist’s license and imposed a $99,000 fine for unsafe injection practices that resulted in 699 probable hepatitis C virus (HCV) infections and 31 probable hepatitis B virus (HBV) infections. The Board of Nursing’s action occurred after the CRNA was reported by registered nurses working in his pain control clinic.⁵ Other regulatory agencies such as the Centers for Disease Control and Prevention also make standards that courts may apply to nurse anesthetists.⁶

Courts also have a law-making function in their role of interpreting statutes and regulations. If there is any ambiguity in the way that a statute or regulation is worded, courts will interpret those laws according to the intention of the writers of the statute or regulation, as best as that can be determined. Courts will also interpret whether the statute or regulation in question violates the state or federal Constitutions. Thus, not only must statutes and regulations be viewed to determine what the laws are but also courts’ interpretations of those regulations and statutes must be considered.

In the United States, court systems exist at both the state and federal levels. The state systems deal primarily with issues of state law. This includes most malpractice cases, licensure issues, and contracts. Federal courts deal primarily with federal law issues. However, overlap can occur in both areas. Sometimes federal issues are addressed by state courts that are in the process of dealing with a case concerning primarily state issues; the reverse also occurs. Further confusing the issue, many cases dealing with federal law may be brought in a state court. A federal court may hear a case that is solely a state law issue because the parties to the lawsuit are residents of different states and the amount under dispute meets the requirement for federal jurisdiction.

The federal court system and most state systems have three levels. The first level is the trial level. In the federal system, this is known as the district court. States refer to courts of this first level by many names, such as district courts, juvenile courts, small claims courts, and county courts. New York calls its trial level courts supreme courts. Once a case has been tried, the court’s decision may be appealed to the intermediate appellate court. In the federal system this is the United States Court of Appeals. Parties to lawsuits usually have a right to appeal the case to the intermediate appeals court. Appellate courts consider only whether trial courts made mistakes of law. For example, an appellate court can overturn a trial court’s decision because it improperly allowed evidenced to be entered that altered the outcome of the case. In this instance, the appellate court would remand the case to the trial court for retrial. An appellate court does not go over testimony or evidence in the case to determine whether it would have decided the case differently.

The highest level of court is the supreme appeals court. In the federal system, this is the United States Supreme Court. In some states, the name of the highest court is different. For example, in New York, the trial court is called the Supreme Court, the intermediate appellate court is the supreme appellate court, and the supreme appellate court is the New York Court of Appeals. Some states also have two separate supreme courts, one for civil cases and one for criminal cases.

In the federal and in many state systems, parties in a lawsuit do not have a right to have a case heard by the supreme appellate court. For a case to be appealed to the United States Supreme Court, a petition called a writ of certiorari is sent to the Court requesting that it hear the case. The Court then decides whether the case deserves review. Many states use this method but also have additional mechanisms for obtaining state Supreme Court review. Some states allow a trial judge or intermediate appellate court to certify a question for state supreme court review.

Criminal Law

Law in the United States’ legal system can be divided into two basic types: criminal law and civil law. Criminal law is the body of law established to protect society from harm, declaring what conduct is criminal and establishing punishment for violation of the law. Civil law is the body of law concerned with private rights and remedies. Civil law applies to torts (private wrongs other than a breach of contract) and breaches of contract.

Nurse anesthetists usually are more concerned with civil law issues than with criminal law issues. However, nurse anesthetists can violate criminal laws in several instances. Fraudulent filing of insurance or Medicare claims can violate federal and state laws. Nurse anesthetists who knowingly sign forms indicating that procedures were performed when they actually were not or stating that anesthesia providers were involved with a case when they were not can be subject to fines and imprisonment for Medicare or insurance fraud. A nurse anesthetist who is asked to sign or fill out false forms by an employer is not freed from criminal liability by virtue of the employment relationship. A nurse anesthetist who practices without appropriate licensure or who knowingly employs an unlicensed person to practice anesthesia can be criminally prosecuted. The misuse of controlled substances is another area of criminal law that concerns nurse anesthetists.

At the time of this chapter’s writing, two nurse anesthetists are being prosecuted for racketeering, insurance fraud, and neglect of patients in the Las Vegas hepatitis cases.⁷ Nurse anesthetists must be aware that billing one patient for a single-use vial of medication that is used on more than one person may constitute insurance fraud. Likewise, charging both patients for medication from a single-use vial may constitute insurance fraud.

Civil Law

Malpractice (Torts)

Malpractice is part of a greater area of the law called torts. A tort is a civil wrong committed against a person or property independent of a contract. Torts include two types of civil wrongs: intentional torts and unintentional torts. Intentional torts are actions deemed to be violations of the civil law when they are performed intentionally. Intentional torts include assault, battery, and false imprisonment. The legal area of greatest concern for nurse anesthetists is malpractice, which is a form of negligence. The term malpractice refers to professional misconduct or the consequences of unreasonable lack of skill of nurses, doctors, lawyers, and accountants. Malpractice is an unintentional tort—that is, the person who commits malpractice did not intend to cause the harm that resulted from negligence. Although healthcare providers can also be sued for improper medical care in some states, according to a theory of breach of contract, many states disfavor or statutorily eliminate this option.

Four elements constitute every cause of action for malpractice. There must be (1) a legal duty that the practitioner owes the patient; (2) a breach of that duty by the practitioner; (3) a reasonably close causal connection between the breach of duty and the damages that result; and (4) actual damages to the persons owed the duty.

Duty

The anesthetist’s duty begins when a provider-patient relationship is established. This relationship is considered a type of contract. The anesthetist agrees to care for the patient in return for a fee, and the patient agrees to pay a fee in order to receive the anesthetist’s professional care. This contract does not have to be in writing—in fact, it does not even need to be spoken of by the two parties. The contract is formed when the patient allows the anesthetist’s care and the anesthetist agrees to care for the patient. The law implies a contract for professional care in return for a reasonable fee by the actions of the two parties. The situation is analogous to the case of a homeowner calling a plumber to fix a clogged drain. The two parties have shown by their conduct that they intended to have services rendered for payment of a fee. The law assumes that a reasonable person does not expect an anesthetist (or a plumber) to perform services for free and implies a contract based on the conduct of the parties. The law terms this an implied-in-fact contract.

The anesthetist’s duty can begin even though all of the preceding terms are not met. The beginning of the provider-patient relationship is not dependent on the payment of fees for the services. Even if both the anesthetist and the patient expect that no fee will be paid, the duty begins with the rendering of services. The patient’s lack of mental or physical capacity to enter into the relationship does not prevent the creation of a provider-patient relationship. The anesthetist who cares for an unconscious patient has a duty to that patient even though the patient is unaware of the care being rendered. The law refers to this as in implied-in-law contract, because the law implies that a reasonable patient would have agreed to be cared for had he or she not been unconscious.

Standard of Care

The law presumes that people follow a minimum standard of conduct. The driver of a car is expected to stop at red lights and to drive on the right side of the road. The driver need not be the best driver on the road but must act in a manner in which a reasonable driver would act. Thus determining the minimum standard of conduct is objective. What is reasonable is not what the driver thinks is reasonable, but rather what an average reasonable driver believes to be reasonable. For the nurse anesthetist, failure to act according to the standard of care is one of the elements of negligence. The nurse anesthetist must act as a reasonable and prudent nurse anesthetist would act under similar circumstances. It should again be noted that determination of this standard is objective. It does not matter that one particular nurse anesthetist may have had less knowledge than most practitioners and thus acted in a reasonable and prudent manner for the amount of knowledge that he or she possessed. All nurse anesthetists are charged with the duty of acting as would average, reasonable, and prudent nurse anesthetists.

At one time, the standard of care was based on how other practitioners in the community where the alleged malpractice took place would have acted. Today, courts hold healthcare professionals to standards that are relevant for the entire country. Nevertheless, courts still allow for differences related to the size of the community and the equipment available to the anesthetist. For example, although a rural hospital with 25 beds might not be expected to have an anesthetist in-house 24 hours a day or to have equipment available for extremely specialized tertiary care, a 1000-bed urban tertiary care medical center would. However, the nurse anesthetist in both situations is expected to work at the same level given the limitations of the available equipment. For example, a nurse anesthetist in a small rural hospital might not have the same equipment for the rapid transfusion of blood that a nurse anesthetist in a large urban trauma center had. If a patient were exsanguinating, however, the rural anesthetist would be expected to recognize this and transfuse as rapidly as possible with the equipment available to him or her.

The general rule is that the expert testimony must be used for determining the standard of care in a case of professional malpractice. An expert is a person who has a special skill and knowledge about a subject. An expert need not have the exact same training as the defendant in the case but may be a nurse anesthetist, medical doctor, pharmacologist, or other person with special knowledge. The requirement may be waived only under limited circumstances—for example, if the deviation from the standard is so obvious that it is easily understood by a lay person. Anesthesia textbooks may be used in court as a method of determining the standard of care.

Standards promulgated by professional organizations may be used as evidence of a standard of care. In some jurisdictions, courts view the standards as evidence of the standard of care. In other jurisdictions, they are considered as conclusive proof. Nurse anesthetists should be familiar with the American Association of Nurse Anesthetists (AANA) Standards for Nurse Anesthesia Practice. Nurse anesthetists must also adhere to published standards such as the AANA Position Statement on Syringe Safety.⁸ Deviations for the patient care standards during an anesthetic procedure should be documented and the reason for the deviation explained. In addition, nurse anesthetists should be familiar with the policies of the institutions in which they work. Those policies also can be used as evidence of the standard of care. Deviations from institutional policies should be documented and explained.

Nurse anesthetists must stay abreast of new and emerging standards of care. One emerging area is the issue of distractions in the operating room, particularly reading, texting, and surfing the Internet during patient care. Some institutions have created policies forbidding the use of such devices in patient care areas. However, there is a general move in society against such distractions when driving, flying, and engaging in other important tasks. Train drivers and boat pilots have been held liable both criminally and civilly for injuries that were the result of these distractions.9,10 Two Northwest Airlines pilots lost their licenses after flying past their scheduled airport while working on their laptop computers.¹¹ Even though there may not be published standards forbidding all texting and Internet surfing in the operating room, nurse anesthetists must be aware of how their behaviors would be viewed by regulatory agencies and juries. Even if it is common practice, it may be viewed as a deviation from the standard of care. As Judge Learned Hand said,

Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.¹²

Informed Consent

Nurse anesthetists must obtain patients’ consent before they can begin treatment. In a much quoted 1914 decision, Justice Cardozo stated, “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.”¹³ Consent is the patient’s agreement to undergo a specified treatment. A nurse anesthetist who treats a patient who has not agreed to treatment might be liable to that patient. For example, if a patient was undergoing an elective procedure under local anesthesia and the surgeon asked the nurse anesthetist to give the patient a general anesthetic, the nurse anesthetist and the surgeon might be liable for treatment without consent, even though general anesthesia had never been discussed with the patient. Informed consent, as opposed to consent, is the process in which the practitioner tells a patient not only about the diagnosis and the proposed procedure but also about the probability of the procedure’s success and its associated risks, as well as about reasonable alternatives to the procedure. If more than one type of anesthesia is possible—for example, epidural versus general—nurse anesthetists have an affirmative duty to explain both to the patient. The nurse anesthetist may make recommendations on the basis of experience and the surgeon’s and anesthetist’s personal preferences. However, they should avoid making unsubstantiated statements—for example, that one type of anesthesia should be administered because it is not associated with complications, or that desired results are guaranteed with the use of a particular anesthetic or surgical procedure.

In addition to the ethical and moral desirability of informed consent, its importance to the practitioner lies in the fact that the failure to obtain informed consent can transform a faultless complication into a damage award against the practitioner. In one case, a patient was told by an anesthetist that the only potential problem that could happen from her upcoming spinal anesthesia for a hysterectomy was postdural puncture-related headache. The patient suffered some paralysis on the left side and problems with bowel and bladder control. The Supreme Court of Kansas stated that “While there does not necessarily have to be negligence in the administration of the spinal anesthetic for the resultant damage which [the patient] experienced, the risk was still present….[W]e find [the anesthetist] failed to obtain the informed consent of [the patient] to the spinal anesthetic prior to its administration.”¹⁴ The case illustrates that merely telling the patient what type of anesthesia will be administered or obtaining a signature on a consent form does not constitute informed consent. Nurse anesthetists must understand that informed consent is a process that goes well beyond its objective manifestation (i.e., the patient’s signature on a form).

Some risks, however, need not be disclosed. If a patient is aware of a risk or if a risk is common knowledge and the patient’s awareness can be presumed, no disclosure is necessary. An anesthetist is not liable for failing to disclose risks that were not known in the anesthesia community at the time of the anesthetic procedure. Risks that are problems only if the anesthetic procedure is performed negligently need not be explained. If a patient specifically asks not to be informed of risks, they need not be disclosed. In this instance, however, the nurse anesthetist should note the request in the chart. A final instance in which an anesthetist may withhold information about risks is known as therapeutic privilege. If revealing the information about risks would jeopardize the outcome of the treatment or have an adverse effect on the patient’s well-being, then the information can be withheld. The anesthetist must document the reasons for nondisclosure before the procedure. Although therapeutic privilege was used successfully as a defense in a 1955 anesthesia-related case, today it should be used with great caution.¹⁵

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