[Legal aspects of injuries due to positioning of the patient in urology]

Each positioning of the patient has method specific risks and risk increasing factors which depend on the type of surgery carried out. The causes of damage during positioning are pressure and strain when the protective reflexes are out of action, as well as a reduction of the shielding muscle tone through anaesthesia. The surgeon is responsible for the positioning of the patient, and the anaesthetist for the "infusion arm". For this interdisciplinary cooperation, the principles of horizontal work division are required: strict role boundaries, trust without reciprocal direction, close coordination and reciprocal respect for the specialist requirements of the partner, resolution of conflicts taking these requirements into consideration and the final decision of the surgeon. Legally, the damage caused by the positioning of the patient is considered to be fully under control. It can only be reduced by medical care but can not be eliminated. For compensation, the medical practitioner must prove that the appropriate amount of care was taken in the positioning of the patient as well as in the medical cooperation.

Pr�operative Nahrungskarenz

In Germany the predominant standard of preoperative care for elective surgery is fasting after midnight, with the aim of reducing the risk of pulmonary aspiration. However, for the past several years the scientific evidence supporting such a practice has been challenged. Experimental and clinical studies prove a reliable gastric emptying within 2 h suggesting that, particularly for limited intake of clear fluids up to 2 h preoperatively, there would be no increased risk for the patient. In addition, the general incidence of pulmonary aspiration during general anaesthesia (before induction, during surgery and during recovery) is extremely low, has a good prognosis and is more a consequence of insufficient airway protection and/or inadequate anaesthetic depth rather than due to the patient's fasting state. Therefore, primarily to decrease perioperative discomfort for patients, several national anaesthesia societies have changed their guidelines for preoperative fasting. They recommend a more liberal policy regarding per os intake of both liquid and solid food, with consideration of certain conditions and contraindications. The following article reviews the literature and gives an overview of the scientific background on which the national guidelines are based. The intention of this review is to propose recommendations for preoperative fasting regarding clear fluids for Germany as well.

[Determining responsibility for surgical positioning of the patient and malpractice for damage caused by patient position]

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.

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

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.

[Quality practice]

Risk-management, prospective and preventive quality-management and liability of doctors are important topics in daily practice and administration of justice.

[Treatment of patients incapable of giving their consent. Legal requirements in anesthesia and intensive care medicine]

A treatment procedure requires the consent of the patient, but this is legally effective only if he is capable of giving his consent and can be informed accordingly. Because of demographic development and the progress of medicine, the number of patients who are not able to give their consent is increasing. In practice, we make do with the presumed consent of the patient or, for procedures that can wait, with the consent of legitimate family members. An initiative action is suggested by physicians and hospitals that should reduce this gray zone and the forensic risks drastically.

[Limits to the duty to treat in intensive care. 1. Explanation of the guidelines in the DGAI]

Every form of active euthanasia is a punishable offence under sections 216 of the Penal Code; nor is there any ethical justification for it from a medical point of view. The many strands of the movement in favour of making "death on demand" exempt from punishment in Germany as it is in The Netherlands cannot change this. In the area of passive euthanasia the limits of the intensive care team's duty to treat depends on various factors: The patient's declared or assumed wishes. It is not permissible to carry out procedures refused by the patient, even when these alone would make an extension of life possible. The indications for medical treatment. In the twilight zone between life and death, procedures with no prospect of success can no longer help the patient. In these circumstances they are pointless and are not medically indicated. According to Supreme Court rulings, the medical decision on whether to implement procedures designed to extend life or whether to withhold such procedures is based almost exclusively on the wishes or the assumed wishes of the patient, even though interpretation of the "assumed wishes" can be difficult and is quite often liable to subjective influences. The question of using the presence or absence of medical indications for treatment as an objective criterion, in contrast, has so far been disregarded in rulings. If no life-extending procedures are implemented the physician's duty to provide suitable basic care for the patient, in the sense of palliative care, remains. To make decisions easier, the authors discriminate between the essential "ordinary" remedies that must be provided to all patients and the "extraordinary" remedies of intensive care that are available for patients who can still benefit from them. There is some controversy over the correct assignment of artificial nutrition; according to German legislation it belongs in the category of extraordinary remedies. The palliative procedures that make up basic care include adequate pain relief, which can be a form of indirect euthanasia. The Supreme Court has ruled that it is the physician's duty to prescribe adequate pain relief even when it might have the unavoidable side effect of unintentionally accelerating the patient's death.

[Patient preparation and premedication--legal aspects]

The legal demands concerning the methods of treatment required of an anaesthetist are determined by the quality of the specialist and the professional standard. As long as there is no premedication procedure which is generally considered superior to all others, the anaesthetist can freely choose the procedure, while carefully considering benefits and risks on the basis of the individual circumstances of each case. The patient must be informed about the anaesthesia before premedication since the latter inhibits his/her ability to make decisions.

[Legal liability of subordinate physicians, legal liability for management responsibility from the jurisprudence viewpoint]

Within the bounds of the hospitalization contract and the department's work, the hospital management is liable for compensation for its own as well as its staff's culpable faults (liability of the accomplices) by contract and by offense. For the same damage, subordinate and senior physicians are liable by offense for malpractice and organization faults. To the outside, the hospital management and the medical staff are common debtors. To the inside, the hospital management bears the consequences by itself in case of a light negligence of a staff member, the damage is divided for medium negligence, and the staff member has to bear it alone after severe negligence. Beside the hospital, the physician with an authorization for billing is the contract partner of the patient with private treatment (physician side-contract). In a general practitioner hospital, the contract partner of the patient is only the general practitioner (divided hospitalization contract) and for work with outside-patients as a sideline the physician with an authorization for billing. Usually, the hospital management insures itself and all staff members for claims on compensation occurring during hospital tasks.

[Obstetric peridural anesthesia with sufentanil. Is it contraindicated?]

The advantages of the addition of low-dose sufentanil to local anaesthetics in epidural analgesia during labour (improvement of analgesia, reduction of total dose of local anaesthetic, reduction of rate of instrumental delivery outweigh) far the disadvantages (pruritus, sedation, potential maternal and neonatal respiratory depression). In over 8000 cases, the addition of incremental sufentanil (7.5 micrograms) up to 30 micrograms has not caused any negative effects on newborns, and hence, the addition of sufentanil is justified; it may even be indicated. Sufentanil has not yet been registered for epidural analgesia in Germany, in contrast to other countries. In considering whether this fact may prohibit its use, two aspects should be discussed: therapy and clinical experiments. The difference lies in the purpose rather than in the method of administration. Ethical and legal requirements for clinical tests are anchored in the declaration of Helsinki and the code of the medical profession. The legal background for therapy is represented in the proviso of the German Civil and Criminal Codes as well as the code of conduct on professional liability of the physician. Pain during labour is no absolute indication for the addition of sufentanil, but there are considerable arguments for its superiority in comparison to other standard procedures: the side effects and complications are very limited. Justification of this method is relatively easy in view of the fact that sufentanil has already been registered for peridural analgesia in obstetrics in many other countries. Last but not least, the patient must give informed consent before any procedure can be performed.