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ment between the Professional Federation of German Anaesthetists and the Professional Federation of German Surgeons, Anasthesiologie 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 operation is always taken by the surgeon according to the requirements 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 positioning injuries, he shall inform the surgeon accordingly. The surgeon's decision regarding positioning is part of his medical and legal responsibility for the operative procedure itself justifying the increased risk of the stipulated operative procedure (loc. cit. p. 65).

3.2.3 Positioning on the operating table

Responsibility for positioning the patient on the operating 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 responsibility, regardless of which specific department they belong to. The surgeon shall give the necessary instructions; he shall check the patient's positioning before starting to operate. However, the anaesthetist is expected to draw his attention to any obvious positioning mistakes. The anaesthetist is responsible for positioning the extremities required for monitoring the anaesthetic and for administering the anaesthetic and infusions. The anaesthetist shall proceed with all specific safeguarding measures 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 decisions for scheduled changes in positioning the patient during the operation and in implementing such decisions.

If the position of the patient is changed unintentionally as a result of the operation itself in such a way as to increase 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 (Anasthesiologie und Intensivmedizin [1996], 37: 414 ff., 416), explicit reference is made of the fact that during the operation, the anaesthetist is expected to check the extremities for whose positioning he is responsible.

3.2.5 The postoperative phase

Responsibility for positioning including changing the position 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 involvement 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 responsible for his instructions being correct (so-called instruction responsibility). Already the lack of general instructions 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 patient 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 adequately experienced in the technique to be used for positio ning the patient. As part of the so-called vertical division of labour, »liability is attributed from the bottom upwards«. 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 Zweibrucken 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 positioning 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 capable 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 burden 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 provide the proof for correct positioning in any legal dispute, great significance is accorded in practical terms to documentation of the patient's positioning, because the nursing and medical staff will have to answer for any documentary omissions. In the case of documentary omissions 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 indeed 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 specific type of operating table being used, technical equipment, 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 documents, 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 detailed report about how the patient was positioned in concrete terms. On the contrary, it is sufficient for the positioning 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 necessary 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

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