Allocation of responsibility for positioning patients for surgery and liability for damages consequent on faulty positioning

Abstract

The cooperation of surgeon and anaesthetist in positioning of the patient is subject to the principles of horizontal division of labour recognized in the interdisciplinary agreement and confirmed by the legislature: anaesthetist and surgeon carry out their respective tasks independently of each other, each bearing full responsibility for their own work (principle of strict separation of functions), they tailor their procedures to fit in with each other (duty of coordination), and each is entitled to expect and rely on due care in the other (principle of trust). In the case of conflict--when the best position for the specific intervention leads to a higher anaesthesiological risk--the principle of predominance of the actual requirements applies. If no agreement is reached it is incumbent on the surgeon to make the decision; this means that the surgeon bears the medical and legal responsibility for appropriate deliberation. Faults in organization are regarded under the law as faulty treatment. Anaesthetist and surgeon are each responsible for their own errors. According to the interdisciplinary agreements, positioning and checks on position are the task of the surgeon, while the anaesthetist is responsible for the "infusion arm". This does not exclude the possibility that anaesthetist and surgeon may agree on a different division of labour in the operating room. The patient bears the burden of proof that errors were committed in a case for damages. The doctor does, however, have to prove that the patient was correctly positioned. The demands of jurisdiction in terms of documentation of the positioning and of presentation of evidence are practically oriented and can basically be met. The same is true of the information supplied to the patient on the risk that positioning can cause harm. The doctor is obliged to supply evidence of the patient's substantive consent and the provision of information that this implies.