Primum Non Nocere: Above All [or First] Do No Harm

An Argument for Negligence 

I recently experienced this line of questioning while serving as an expert witness. The plaintiff's attorney's line of questioning was a brilliant setup in which my response could be perceived to imply that the RN circulator failed to meet his or her professional obligation to anticipate the needs of the surgical team (ie, the anesthesiologist), and in so doing, failed to meet the ethical obligation of patient advocate. The attorney was building a case that the nurse's failure to meet this ethical obligation (ie, omission) was negligence and therefore probable cause leading to the harm of the patient.

The attorney switched his line of questioning from the understanding of and adherence to the ANA Code of Ethics to having me agree with his conclusion that the perioperative nurse should take on the anesthesiologist's duty to the patient. It is important to know that during this particular emergency situation, neither of the two anesthesiologists in the room ever asked the circulating RN to get any equipment or supplies or asked for other types of assistance. The attorney was implying that the circulating nurse should have been a mind reader; nurses are constantly trying to differentiate between mind reading and anticipation.

I found this line of questioning by the plaintiff's attorney both impressive and sobering. It was impressive in that the attorney was extremely knowledgeable about the ANA Code of Ethics for Nurses and the Perioperative Explications for the ANA Code of Ethics. The attorney proceeded to attempt to build a case for negligence on the part of the circulating nurse. The attorney's strategy was to convince the jury that the circulating nurse in this case had failed to meet the ethical and statutory responsibility of patient advocate described under provision 3.5 of the Perioperative Explications for the ANA Code of Ethics for Nurses (ie, acting on questionable practice). The attorney's argument focused on the premise that the nurse should have questioned the practice of the anesthesiologists in the room or at least suggested and procured equipment and supplies that would have allowed the anesthesiologists to perform a different intervention. In other words, the attorney was assuming that the circulating nurse should have been assertive in suggesting an intervention other than the one performed by the anesthesiologists in attendance.

It was sobering as I asked myself, “How many of my perioperative nursing colleagues are knowledgeable of the Perioperative Explications for the ANA Code of Ethics for Nurses? Are they aware that the failure to meet an ethical obligation could be construed as failure to meet one's statutory duty?”

It was the plaintiff's responsibility to prove that there was a failure to meet an obligation to the patient, that obligation being to provide the “legal” standard of care—what any perioperative nurse with the same level of knowledge, training, and experience would do in the same or similar situation.3 In determining negligence, the jury had to determine whether the provider's conduct was substandard as established by the law or by morality to protect others from careless or unreasonable risks. Although the nurse in this case was not found guilty of negligence as a patient advocate, the legal model of responsibility for harm can be used as a framework for further discussion of the moral ideal of nonmaleficence on the part of perioperative nurses.4

Nonmaleficence and Beneficence 

The principles of nonmaleficence (ie, to do no harm) and beneficence (ie, to do good) are closely associated with health care ethics; both are implied as the fundamental ethical principles of the Hippocratic oath and the Nightingale Pledge.5 While nonmaleficence and beneficence are similar, the obligation not to inflict harm is distinctly different than the obligation to help others or to do good. Beauchamp and Childress consider nonmaleficence to be a morally more stringent obligation than beneficence.4 Therefore, it is important to distinguish the differences between nonmaleficence:

When listing the characteristics of each of these principles, one begins to see that the three forms of beneficence require an action (ie, commission) on the part of the health care provider, whereas nonmaleficence requires the provider to refrain from taking action (ie, omission). “Rules of nonmaleficence therefore take on the form of ‘Do not do X.’”4(p192)

Given this analysis of the dichotomous principles of nonmaleficence and beneficence it becomes clear why an attorney could build a case for negligence on the grounds of omission and commission. Reflecting on the line of questioning at the beginning of this Editorial, we see how the plaintiff's attorney's questioning attempted to establish negligence on the grounds of commission in that the nurse “ought to act to prevent harm.” However, one could argue that the nurse had a legal obligation of nonmaleficence, which would require that the nurse not make the situation worse (eg, omission), and that the failure to anticipate and procure equipment was probably an omission on the part of the circulating nurse that could cause harm to the patient. The attorney could argue that when the nurse failed to anticipate and obtain equipment and supplies for a different intervention, the nurse caused a delay of critical proportions and violated the obligation of nonmaleficence.4

Sound and Appropriate Actions 

I find this case of particular interest given the emergence of criminalization of medical errors that has surfaced during the past several years.6 As a patient advocate, the nurse is responsible for making decisions and taking actions that are not only clinically sound but also morally appropriate to the situation. As the plaintiff's attorney's line of questioning so plainly articulated, we are responsible for knowing and upholding our professional code of ethics.

As a patient advocate, the nurse is responsible for safeguarding the patient from the incompetence of other healthcare professionals. This may be a statutory duty as well as an ethical one.7(p31)

However, the criminal justice system should not be used to prosecute individuals for acts of simple negligence or isolated, unintended acts of omission or commission. An understanding of the Perioperative Explications for the ANA Code of Ethics for Nurses and of advocacy is especially important for perioperative nurses as we care for patients who rely on us to be their advocates when they are unable to advocate for themselves.

A Team Responsibility 

There are multiple factors during the perioperative experience that could lead to a malpractice lawsuit. James Reason defines an error as an occurrence in which a planned sequence of mental or physical activities fails to achieve the intended outcome and this failure cannot be attributed to chance.8 Each member of the surgical team shares the responsibility for reducing the opportunity for patient injury and lawsuits. Lingard and colleagues reported that ineffective communication is frequently the cause of medical error and that failed communication occurred in 30% of team communications observed; one-third of these communication failures jeopardized patient safety.9

There is currently an international initiative to improve communication in the OR with the use of briefings.10, 11 Intraoperative briefings have been shown to improve collaboration as evidenced by surgical team members working together as a well-coordinated team.10 Surgery briefings are an excellent example of shared responsibility for effective communication. Briefings hold the promise of establishing communication procedures that promote effective transmission of information, which may reduce the risk for patient harm and lawsuits with an additional benefit of improving collaboration and teamwork.