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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

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 surgical procedure and the nursing staff under their instruction share a legal obligation to ensure that the patient is positioned correctly (as explicitly stated by Cologne Intermediate 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 positioning (for the kind of positioning injuries cf. for example Vinz, Behandlungsfehler im Zusammenhang mit der Operationslagerung, Niedersächsisches Ärzteblatt 4/2000, 20), he can demand compensation from the doctor responsible for positioning and the nursing staff entrusted with positioning the patient under the doctor's instruction. In the case of hospital patients, the hospital authority is also liable for possible positioning injuries as the regular patient's contract partner. In legal terms, correct positioning of the patient constitutes a subsidiary obligation arising from the treatment contract. The hospital authority and/or doctor are liable to the patient for compensation of damages incurred as a result of the violation of such subsidiary obligation. According to § 278 of the German 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 mistakes 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 severally 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 relationship between the liable parties.

If a patient is injured because of culpable, i.e. wilfully or negligently incorrect positioning, the doctors and nursing staff responsible can also be prosecuted under criminal law for causing negligent bodily harm according to § 229 of the German Penal Code.

If there is a specific risk involved with a certain positioning 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 accountable 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 judgement 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 treatment contracts, the disciplinary boundaries indicated in the Code of Practice set out by the General Medical Council, the concrete distribution of roles in the specific case and on agreements between the various professions involved, 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 meanwhile been amended with regard to positioning the patient on the operating table (Anasthesiologie und Intensivmedizin [1987], 28: 65).

Comparable agreements also exist between other scientific societies and/or professional federations, including for example the agreement on cooperation in surgical gynaecology and in obstetrics between the German Society for Anaesthesiology and Intensive Medicine and the Professional Federation of German Anaesthetists with the German Society for Gynaecology and Obstetrics and the Professional Federation of Gynaecologists (Anasthesiologie und Intensivmedizin [1996], 37: 414 ff.).

While such agreements between professional medical federations are not binding in law, if in any doubt, as mentioned above courts refer to these agreements to distinguish the areas of responsibility so that such agreements assume great practical significance, particularly with regard 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 agreements between the professional organisations; cf. agree-

3.3 • Cooperation between doctors and nurses in positioning the patient

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