Handling Anesthesia Malpractice Cases, by David W. White (2005)
By David W. White
Anesthesia malpractice claims account for a large number of medical malpractice cases in Massachusetts. Anesthesia malpractice is the twelfth highest medical specialty when it comes to the percentage of physicians within the specialty who have paid claims in Massachusetts. Claims arising from anesthesia mistakes are devastating, often resulting in permanent injury, profound brain damage or death. Demonstrating the negligence of the anesthesiologist or anesthesia staff is also among the most difficult since the plaintiff is often unconscious or sedated, and scant and unreliable records are often the only source of information.
This article will explore the variety of settings where anesthesia injuries may occur, the many potential defendants who may have contributed to the injuries, and some of the methods of proving these injuries.
While anesthesia injuries are most often thought of as occurring in the operating room, they can occur in a wide variety of settings, including the pre-operative and recovery rooms, any procedure room, during labor and delivery, during sedation for dental procedures, and during a wide variety of out-patient medical procedures in surgical clinics and doctor’s offices.
Anesthesia malpractice claims are hardly limited to anesthesiologists, as a great many medical practitioners administer sedatives and anesthetics. Proper specialty training and certification is one way to reduce the risk to the patient. It is likely that the seriousness and rate of complication increases significantly outside of the setting of the anesthesiologist in the operating room. Extremely severe complications and death may occur in dental offices and in the cosmetic surgery clinics during procedures under general anesthesia, where trained anesthesia staff is absent. Potential defendants include anesthesiologists, nurses, nurse anesthetists, fellows and residents in training, surgeons, other doctors, and dentists.
Preserving the Records
Hospitals and out-patient clinics invariably have an organized system for keeping anesthesia records. The chart should include at least several elements: pre-anesthesia exam; informed consent forms; pre-anesthesia records; the operative record; transfer notes; physician orders; and the post-anesthesia care records. On some occasions the anesthesia staff will make additional entries in the progress or nurses’ notes.
Obtaining and preserving the anesthesia records is a vital first step. A serious injury will no doubt draw the immediate attention of risk managers, and it is an unfortunate fact that records are frequently altered or “lost.” In addition to obtaining copies as soon as possible, the original records must be reviewed in person. Different colors of pen are frequently used, and help tell the story of the case. Only careful inspection can reveal additions or alterations to the record, and if alterations are suspected, appropriate document analysts should be employed.
The altered record or destroyed record offers wonderful opportunities of proof. Medical societies and insurers consistently warn practitioners to never alter records, but in the moments surrounding medical disasters, this advice is frequently forgotten. Alterations point to consciousness of liability and deceit, and frequently convert difficult-to-prove cases into significant recoveries. When inspecting the original record, check for alignment of staple holes and punched sheets of paper, for charts that just a little too neat, and columns of data that are simply repeated, as if written at one time. Handwriting should change from moment to moment, and a recreated or altered chart will bear telltale signs. Pay careful attention to write-overs and cross-outs.
Destroyed records may lead to sanctions for spoliation. The altered records case may, however, pose a risk to recovery, as some insurers, recognizing the likelihood of aggravated damages awards, may withdraw coverage.
Record-keeping is, of course, becoming more automated and computerized. Tracking record changes on computer systems may require the employment of additional consultants. Access to medical records, whether in chart form or on a computer system, should generate entries in the audit trail. This is a specific requirement of HIPAA, and the patient has an absolute right to receive a copy of the audit trail on demand.
Pre-Anesthesia Exam and Consent for the Procedure
Anesthesia care begins with an examination of the patient prior to the procedure, and is often done days before surgery. In addition to performing an appropriate physical exam, it is the duty of the physician to take the relevant history, including medications and previous surgical experiences, and to determine if there have been other anesthesia complications. The patient must be properly assessed to determine if he or she is even a viable candidate for the surgery and anesthesia which is anticipated. Drug allergies and drug interactions must be identified.
The anesthesia staff has a duty to obtain informed consent from the patient. Informed consent involves principles of assault and battery and negligence. Under common law, the failure to obtain consent for a procedure is an intentional tort. In the last half century, in particular after the Nuremberg trials, the notion of consent was expanded to informed consent. The physician has a duty to inform the patient of material risks. This does not require the physician to inform the patient of every risk, but should include the most common risks, even if they are not serious, and the most serious risks, even if they are not common.
The physician and her staff have a duty to document the informed consent, and this is typically done on a pre-printed procedure form. The risks should be appropriately documented and the form should be signed by the patient and witnessed. Be aware of additions made to the form after the procedure was performed. Often the consent form is a multi-part form which creates duplicate originals; these should be compared with each other if there are doubts about the authenticity of the hospital record.
The pre-anesthesia records typically record the operative plans and contain check lists for pre-operative data and patient assessment. Most importantly, the records contain the identity of all of the participants in the procedure, including the circulating and scrub nurses, the anesthesiologists and anesthetists, and the surgeons and their assistants. Final assessment of the patient for tolerance of the procedure should take place at this point.
The anesthesia staff is responsible for the positioning of the patient, placement of intravenous lines, and set-up of monitoring equipment, including electrocardiograms to monitor heart function and pulse oximetry to monitor oxygen saturation of the blood. Blood pressure is monitored by automatic pressure cuffs. The anesthesia staff is also responsible for the intubation and placement of airways, the positioning of the patient, placement of tourniquets, and the administration and delivery of agents (sedatives and anesthetics), medicines, intravenous fluids, and oxygen. The staff is also responsible for monitoring and evaluating fluid inputs and outputs, including urine output and blood loss.
Data for all of these functions is compressed into a single graphical chart. The chart contains entries at five minute intervals for vital signs, fluids, agents and drugs. There are also checklists, numerous data blocks, and notes for key events which correspond to the time sequence. Even in modern settings there should be an original hand-written anesthesia record, and it must be inspected in detail for clues about complications. Modern equipment can create much more complete records which may be in computer databases and available for inspection and production. The patient should not be discharged from the operating room to the recovery room unless she is stable, and that should be recorded in the notes.
The patient in the post-anesthesia care unit (PACU) is in the service of the anesthesia department. Nurses and other staff from that department are required to continue to monitor, at regular intervals, vital signs and pulse oximetry, and to assess the patient’s readiness for discharge from the unit, either to another hospital service, or from the hospital. In the PACU, many hospitals use graphical charts and scoring systems, based on various vital signs, as a simple indicator of readiness for discharge. The chart should contain the anesthesiologist’s discharge orders and a post-operative progress note. It is the duty of the nursing staff to keep the anesthesiologist informed of the patient’s condition, and the duty of the doctor to ensure that that is done.
So far this article has considered the types of records which are maintained in the hospital setting. These are the most complex and the most complete records of anesthesia care. If the anesthesia case was rendered in a free-standing clinic or office (such as that of a cosmetic surgeon, a podiatrist, or a dentist, all of whom administer anesthesia), the record will likely have scant data to work from, often making the discovery more difficult.
Who Can Be Held Liable?
It goes without saying that any individuals involved in the anesthesia care may be individually liable for personal injuries caused by their negligence. However individual insurance policies are often inadequate to compensate the victim for his or her personal injuries. In that case it is essential to find additional third parties to share the liability. Under ordinary rules of vicarious liability, any employer should also be liable. Most often, hospitals and professional corporations establish organizational walls to avoid vicarious liability, and attempt to treat others providing medical services as independent contractors for whom there is no vicarious liability.
There are several techniques for breaking down the walls of alleged independent contractor status. Usually the central issue is one of control. Internal hospital policies, including staff manuals, department manuals, and hospital bylaws, as well as long-established hospital customs and practices, may provide mechanisms by which the hospital may exert control over non-employee members of the staff sufficient to create liability under respondeat superior. These same policies establish responsibilities of staff members, so, for example, the chief of the anesthesia department may be found liable for failing to properly supervise or credential the staff under his or her supervision. Liability may arise from ostensible agency, where the patient looks to the institution, rather than the individual physician, for care, and where the institution holds out the physician as its employee.
Liability may even lie outside the medical staff. Anesthesia equipment requires proper assembly and regular maintenance. This might be performed by hospital staff or by the equipment manufacturer’s service personnel. A vital piece of equipment may be out of service because of lack of maintenance, thus endangering the patients. The equipment itself may be defective, and that defect may not have been known to the staff. Check for product recalls and maintenance records.
Common Anesthesia Injuries
Injury and death can occur from many different complications during procedures involving anesthesia. While not life-threatening, positioning injuries have long been recognized, and are usually the responsibility of the anesthesia staff. An extremely common and avoidable injury is ulnar neuropathy resulting from the placement of an arm with the ulnar notch (the funny bone) at the edge of the table. Other compression and stretch injuries can also occur from improper positioning or inadequate padding during extended procedures.
During intubation, proper placement of the endotracheal tube is critical. The tube can be misdirected down the esophagus, which should be immediately recognized by observation of the stomach and lack of breath sounds. Traumatic intubation may result in damage to the throat structures, such as the thyroid cartilage, or the displacement of a tooth into the airway. The endotracheal tube should be positioned in the mid-trachea. If it is too high, ventilation will be inadequate. If it is too low, it will usually result in the intubation of the right mainstem bronchus, with air going only into the right lung. While this may not be life-threatening to a healthy adult, it may result in a collapsed left lung or barotrauma, with air escaping from the lung. Such complications are particularly serious in infants and children, where even small amounts of air outside the airway can lead to life-threatening complications such as pneumopericardium, or air around the heart.
Endotracheal tubes are graduated, and the depth of the endotracheal tube in the airway should be noted in the chart. The tube should be affixed to the face with tape. Proper airway placement must be confirmed by the auscultation of bilateral and equal breath sounds. If the position of the airway is in doubt, or extended intubation is required, placement should be confirmed with an x-ray; the tube has a radio-opaque strip so it is visible on a plain x-ray. Placement must be confirmed whenever the patient is moved, since flexing or extending the neck causes the endotracheal tube to move.
When the intubation is traumatic, blood may be introduced into the airway. Intubation may cause laryngospasm which requires muscle-relaxant medication in order for the intubation to proceed. Medications administered on the anesthesia record at the beginning of a procedure may provide evidence of laryngospasm and traumatic intubation, even if it is not otherwise noted. Even small amounts of blood may lead to aspiration pneumonia, which must be promptly recognized and managed. Often tertiary care is required, which may mandate prompt transfer to a specialized facility.
Extubation, particularly after extended procedures, carries the risk of trauma as well, as tissues may be adherent to the endotracheal tube. Emesis and aspiration are common complications immediately after extubation.
Laryngeal mask airways, which are devices intended to be inserted into the airway above the vocal cords, are less traumatic, and the newest devices are soft. Still, the device must be properly sized in order to function properly and to avoid injury. The size of any airway should be recorded in the chart.
Proper medication levels are critical. Pharmaceutical mistakes may occur, with drug doses being administered at ten times or even one hundred times proper levels by inattentive staff. When the staff “forgets” to record the actual doses administered, the proof of the error may be quite difficult. More common are the drug reactions and adverse interactions. Some drug reactions will be unpredictable, but it is the job of the anesthesia staff to anticipate likely adverse reactions and to be prepared to manage them accordingly. Adverse interactions are avoided by careful attention to the medications the patient is already taking.
A recent alert from the Joint Commission on the Accreditation of Healthcare Organizations has touched on another problem in anesthesia care: waking during surgery. Known as “anesthesia awareness,” a patient may be conscious, and in pain, but unable to communicate with the medical staff. According to the JCAHO, this may occur 20,000 to 40,000 times per year, and has led to the filing of over a dozen cases in recent years.
Complications are likely to arise with the use of regional anesthetics and epidural anesthetics. Epidural anesthetics, which are common for surgical procedures as well as in childbirth, have a number of known risks, including paralysis. Often, however, the injuries are within the known risks of the procedure, and all that remains is the informed consent part of the case.
Some Discovery Ideas
The hospital will provide numerous standards which are applicable to the anesthesia staff’s conduct. These should be obtained through an appropriate keeper of records deposition, followed by a Rule 30(b)(6) deposition seeking a representative of the hospital’s anesthesia’s department. Obtain anesthesia department records to determine what other cases the defendant may have been running concurrently with your client’s case.
If equipment is involved, obtain exemplars of the equipment from the hospital. Obtain court orders immediately if defective or malfunctioning machines are involved in order to guard against spoliation of the evidence.
As with every medical malpractice case, a thorough understanding of the chart and or the medicine is critical before taking the defendant’s deposition. This means one must review the chart in detail and have a clear understanding of the medicine involved. While much of this can come from reading journal articles and medical textbooks, there is no substitute for a lengthy consultation with your educating or testifying expert. The deposition cannot be taken until you understand the significance of every entry in the anesthesia record, and until you have a thorough understanding of the actions of every agent and medication given during the course of anesthesia. Requesting the defendant (and, for that matter, every witness to the case) to bring their copy of the record may lead to the discovery of inconsistencies in the chart resulting from record alterations.
Proof of Negligence and Causation
Expert testimony will invariably be required to establish the standard of care, the breach of the standard of care, causation and damages. It is rare that the anesthesia expert can provide expert evidence on all of these matters.
While the same policies and procedures may provide a foundation for establishing the standard of care for the anesthesia department, expert testimony, professional standards, and the medical literature will be the primary sources for the standard of care, and expert testimony will obviously be required to establish the breach of the standard of care. For example, the American Society of Anesthesiologists publishes numerous standards which are available free on the internet. Journal articles are accessible through the free MEDLINE/PubMed database maintained by the National Institute of Health. Be sure to check for any literature published by any potential defendant or defense expert. Find an expert for your case who is particularly suited to the care given to your client. Seek out specialists who have published prominent journal articles or textbooks.
In most states, the standard of care will vary with the expertise of the anesthesia staff involved. The standard of care for the Board-certified pediatric anesthesiologist technically is higher than the standard of care for the nurse anesthetist, or for a podiatrist performing a procedure in his or her office. The testimony of a practitioner in the field of the defendant who gave the anesthesia will ordinarily be required with regard to the standard of care and breach of duty. If that specialty is not anesthesiology, the expert anesthesiologist may still be required to give opinions about causation and may contribute to evidence on damages.
Even in informed consent cases, expert testimony will be required to establish the standard of care for the anesthesia staff, including what risks should be explained to the patient.
Handling the personal injury case which arises from anesthesia medical malpractice case requires the usual skill of the experienced medical malpractice expert, usually with an added dose of detective work. Immediate efforts to preserve and assess available evidence are crucial, as is the deepest understanding of the medical records and the surrounding medicine. Fine attention to the details is what will lead to the successful settlement or verdict in the anesthesia medical malpractice case.
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Endnotes Compare, Keene v. Brigham and Women’s Hospital, Inc., 439 Mass. 223 (2003) (lost progress notes and other hospital records led to sanctions for spoliation of evidence).  Eastern Dentists Insurance Company v. Lindsay, 18 Mass. L. Rep. 213 (2004) (declaratory judgment in favor of insurer which withdrew coverage after dentist altered records).  See generally, Welton v. Ward, 351 Ill. App. 3d 627, 814 N.E.2d 970 (2004) (discussing need for expert evidence and assault and battery); Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152 (1982).  See, e.g., Parker v. Freilich, 803 A.2d 738 (2002), reversing nonsuit where there was sufficient evidence to support claim based upon ostensible agency of physician.  For a case discussing late discovery of a thyroid cartilage injury, see Artal v. Allen, 111 Cal. App. 4th 273, 3 Cal. Rptr. 3d 458 (2003).