Originally published September 2013 / Revised June 2015
Day surgery has become routine in the treatment of many clinical conditions. It may reduce patients' risk of acquiring hospital-related infections and having complications after the surgery, but it can create other challenges in the post-operative period.
The CMPA reviewed its legal and medical regulatory authority (College) cases that closed in a 5-year period. A number of cases had issues with the discharge of patients following day surgery, and these cases were studied further. The outcomes of these cases were generally unfavourable for the physicians involved. Two primary clinical issues were identified — inadequate communication of discharge instructions and insufficient recovery time.
The following examples illustrate the principles learned from some of these cases.
In recent years, the courts have elaborated on the duty of physicians to communicate essential information to patients before they are discharged. As part of the discussion, physicians should make patients aware of symptoms and signs that mean they need further medical attention. Since patients who have had day surgery are typically discharged the same day, these post-discharge instructions are particularly important.
The cases suggest that the physicians' duty might include giving instructions on wound care, medication, and follow-up, as well as having an adequate discussion about any post-treatment risks or complications, including risks that are statistically remote but serious. The courts have stated that patients should be informed about the signs and symptoms to monitor and that may indicate a need for immediate treatment. Among other things, patients should be given information on when and who to contact and where to go if they experience complications.
In some cases, physicians should consider writing out the discharge information, especially if patients are sedated for the procedure. The notation in the medical record should give the details of the informed discharge discussion and specify if any written material was provided.
Case 1: Patient not informed of post-operative symptom
The importance of informed discharge is illustrated in at least one case involving exploratory tympanostomy in a patient with rapid onset hearing loss.
During the procedure, the surgeon encounters unexpected findings and so also performs a stapedectomy. One week after the follow-up appointment, the patient goes to the emergency department complaining of nausea, vertigo, and chills. There she is prescribed antibiotics for a possible infection.
At the follow-up appointment, 6 weeks post-operatively, the patient complains of worsening hearing loss. An audiogram shows she has completely lost the hearing in her left ear.
The patient commences a legal action alleging the physician did not obtain informed consent for the stapedectomy. The peer experts, who are asked to comment on the care, state that before discharge the surgeon should have expressly advised the patient to immediately seek medical attention if she experienced severe nausea, vomiting, or vertigo. The CMPA pays a settlement to the patient on behalf of the member surgeon.
Case 2: Information on devices not given
In another case, the experts criticize physicians for not giving patients who are being discharged important information about devices that were removed or inserted during day surgery.
In one case, the physician does not tell the patient undergoing a cervical cone biopsy that her IUD has been removed. An unwanted pregnancy results and the patient starts a legal action. The CMPA, on behalf of the gynecologist member, and the hospital, on behalf of the nurses, pay a shared settlement to the patient.
Physicians can also face medico-legal concerns in day surgery cases if patients are not fully assessed to determine whether they are fit for discharge.
Case 3: Patient develops complications
A patient is discharged following day surgery to perform an abdominoplasty. Later that day, she is taken to hospital by ambulance with episodes of syncope and dressings saturated with blood. The patient subsequently develops a hematoma that becomes infected and requires surgical drainage.
One of the peer experts asked to comment on the care suggests that in this case the patient was discharged too soon after surgery and might have benefited from a longer period of observation. The slowness to recognize the hematoma and infection, inadequate consent discussion and discharge instructions, and lack of documentation are also criticized by the experts. Without expert support, a settlement is paid to the patient by the CMPA on behalf of the plastic surgeon.
Physicians should generally consider whether their patients should have someone accompany them after they are discharged from day surgery. Courts have confirmed that physicians have a legal duty to advise patients who may continue to be impaired from sedation or for other reasons about the risks of leaving the hospital or clinic alone.
Patients may not want to be accompanied, for example for privacy reasons, and may challenge a physician's advice: for example, if the patient has had a therapeutic abortion and wants to keep the procedure confidential.
If, prior to a procedure, a patient will not comply with this medical advice, physicians may have an obligation to consider alternatives. If there is no risk to the patient, the procedure could be cancelled or postponed. This may allow physicians to further discuss the importance of being accompanied home. Also, given the additional time, the patient may be able to make appropriate arrangements.
The solution will depend on the circumstances of each case. It may involve arranging for patients to contact a friend or family member. If possible, it may be necessary to keep patients in the facility for observation until they are no longer at risk. Any advice given to patients about being accompanied and the offer of any alternatives should be documented in the record.
Case example: Patient not advised of risk of driving alone
Because of her emotional state, a patient is given a sedative before having a therapeutic abortion. The clinic policy states that abortion patients must be driven home by another adult. However, staff members fail to advise the patient not to drive alone despite knowing that she intends to do so. While driving home alone, the patient faints and is involved in a collision.
The Court of Appeal confirms the decision made at the trial. The physician is negligent for proceeding with the abortion under the circumstances and for failing to advise the patient not to drive home alone. The Court finds that it was predictable that the patient would be at risk if she was allowed to drive home alone. It rejects the argument that the negligence is on the part of the patient and holds that she was entitled to assume that if there was a risk in driving home alone that she would have been advised of it.
Policies or guidelines
Many Colleges have developed policies or guidelines on the issue of adult accompaniment for patients who have been sedated and then discharged from non-hospital facilities. The policies vary. Some limit the requirement to certain procedures. Others have adopted comprehensive mandatory rules for such discharges.
Hospitals and clinics may have their own protocols and policies concerning accompaniment after day surgery. Physicians should be familiar with any College and facility policies that may apply.
Risk management considerations
The peer experts who were asked to comment on these cases highlighted the following administrative and clinical considerations:
- Inform the patient in advance about the need to make arrangements to be accompanied for travel upon discharge, including the advice that care may not be provided if arrangements are not made. Document the discussion.
- On the day of treatment, confirm that appropriate arrangements to be accompanied or for travel upon discharge are in place. Consider alternatives (e.g. postponing or cancelling the procedure, extending the recovery period at the facility) if appropriate arrangements have not been made by the patient. College and institutional policies may also mandate certain steps be taken in these circumstances.
- Conduct a thorough examination of patients' fitness for discharge with consideration given to factors such as the complexity of the surgery, any difficulties encountered during or after surgery, and age and overall condition.
- Prior to discharge, inform patients about: difficulties encountered or suspicion of a possible complication during surgery and possible post-operative complications; special devices removed or inserted; and unplanned procedures performed during surgery.
- Patients should also be informed prior to discharge about: steps and special precautions they should take after the procedure (e.g. wound care, medication, follow-up); symptoms and signs that should alert them to seek further medical attention; and when and who to consult in the case of complications.
- Carefully document all aspects of the care provided, including any advice given to patients concerning accompaniment after surgery, findings at surgery, and discharge instructions.