ANESTHESIOLOGY AND MALPRACTICE LAW

THE ANESTHESIA CONSULTANT
THE ANESTHESIA CONSULTANT
Latest posts by THE ANESTHESIA CONSULTANT (see all)

Seventy-five to ninety percent of all anesthesiologists will be sued for malpractice by the time they reach the age of 65 years. Airway loss is a significant cause of anesthesia lawsuits. An inability to oxygenate and ventilate accounted for over 25% of anesthesia claims. Death accounted for approximately 23% of all claims, and cardiac or respiratory arrest accounted for approximately 19%.  Malpractice lawsuits brought against anesthesiologists result in a verdict for the plaintiff in only 2% of cases, but the process of being sued is an ordeal for any anesthesiologist. 

Most anesthesiologists purchase $1M/$3M claims-made malpractice insurance coverage, meaning they are covered for a maximum of $1 million dollars per case and $3 million dollars per year, with coverage needed during the year the malpractice claim is actually made. The average premiums for a $1M/$3M policy for operating room anesthesiologists and pain medicine specialists, adjusted by consumer price index to reflect 2021 dollars, are graphed below. 

The average price for anesthesiology malpractice insurance premiums was about $18,000 per year in 2021.

Despite the likelihood of malpractice lawsuits, many anesthesiologists have minimal knowledge of malpractice law, how best to prevent being sued, and what to do if they are sued.

In medical school and residency training there’s almost no education regarding malpractice law. Until you’re sued you may have no idea of the rituals and processes involved. During my career as a practicing anesthesiologist in both community and academic settings, I’ve been an expert witness in over 250 anesthesia medical malpractice lawsuits in 30+ states in the United States. Here’s what I’ve learned, and what I’ll pass on to you:

  1. Malpractice law hinges on four elements:  a) the existence of a legal duty on the part of the doctor to provide care to the patient; b) a failure of the treating doctor to adhere to the standard of care of the profession; c) a causal relationship between such breach of the standard of care and a patient injury; and d) the existence of damages. Of these, the key two elements to the clinician are b) and c).

 

  1. You’re expected to follow the “standard of care” for your specialty. Before becoming involved in expert witness work, I had no exposure to the term “standard of care.” The definition of the standard of care is “what a reasonably trained practitioner would do in any given situation.” During residency training we learned how to become competent anesthesiologists. When we finished training and began clinical practice, our goal was to practice at these standards. If one day you thought, “Instead of doing this the way I was trained, I’m going to do this in my own way, a unique way of my own invention,” then you’d better not have a complication. A complication resulting from failing to follow the standard of care in our specialty can make you vulnerable to being sued. If plaintiff lawyers can establish that you failed to follow the standard of care, and then can establish that this failure to follow the standard of care CAUSED a bad outcome, you’re likely to lose a malpractice suit.

 

  1. The best way to insure following the standard of care is to be well trained, to study for and pass your board certification examinations, and to keep up with continuing medical education advances in your specialty. If don’t do these things, your understanding of prudent medical practice can be compromised, and you may have bad outcomes because you may fail to practice at the standard of care.

 

  1. The most costly anesthesia lawsuits involve loss of the airway, leading to anoxic encephalopathy. In acute care medicine the mnemonic for how to treat patients is A-B-C, for Airway-Breathing-Circulation. In our specialty, the mnemonic could be simplified to AIRWAY-AIRWAY-AIRWAY-Breathing-Circulation. As anesthesiologists, we are airway experts, skilled at placing endotracheal tubes during anesthetics and at Code Blue resuscitations. Failure to successfully place an endotracheal tube into the trachea can result in a lack of oxygen to the brain, and a lack of oxygen to the brain can result in brain hypoxia or severe brain damage within 5 minutes. Our most important standard of care in anesthesia practice is to keep a patient oxygenated—be it with an oxygen mask, a Laryngeal Mask Airway, an endotracheal tube, or a cricothyrotomy. Take great care in safe airway management. Learn and memorize the American Society of Anesthesiologists Difficult Airway Algorithm, and adhere to it.

 

  1. The medical record is THE history of what happened to the patient, and in anesthesiology cases, the vital signs on the medical record will tell the tale. In a hospital setting, the Electronic Medical Record (EMR) captures the vital signs on a minute-by-minute basis, and this evidence can be supportive or damning, depending on the case. In a complication of a lost airway with anoxic encephalopathy, if the EMR shows an oxygen saturation lower that 70% for 10-15 minutes, this is powerful evidence that the brain was not oxygenated for a prolonged time, and this will be difficult to refute in a court of law. On the other hand, if the EMR shows the oxygen saturation was lower than 90% for only a minute or two, this is powerful evidence that the blood had adequate oxygenation. Likewise, blood pressure and heart rate numbers within the normal ranges are supporting evidence of anesthesia practiced at the standard of care. Blood pressure and heart rate numbers radically outside the normal ranges for a prolonged time will be harmful evidence in a malpractice suit. In a surgery center or office anesthesia setting, vital signs may be recorded by pen on paper, instead of by an EMR. Once again, this hand-written medical record of the vital signs will be fastidiously studied if a malpractice suit is filed. Any abnormal vital signs will be evidence that could explain an adverse outcome.

 

  1. If you have a complication, document all important details afterward on the medical record to describe exactly what happened. During an emergency, anesthesiologists have no time to chart in the medical record. We’re using our hands, and are too busy trying to save the patient’s life. But after the situation stabilizes, the medical record becomes the written log of what happened. In many anesthesia malpractice suits, the anesthesia practitioner fails to write a post-anesthesia summary to document what happened, and what he or she did to diagnose and treat the situation. The anesthesia specialty is not renowned for MDs writing verbose medical notes. We are procedural doctors who do things rather than write about doing things. But when there’s an adverse outcome, it’s imperative that after the event stabilizes, that you write a detailed summary of the clinical presentation, the timeline, the changes of vital signs over that timeline, what you did, what drugs you administered, and what effect they had if any. For example, if a patient had a difficult intubation and you had a difficult time oxygenating the patient, and you eventually wound up performing a cricothyrotomy, you want to detail this narrative in a postoperative note. Everything you did needs to be documented on the medical record. If it’s not on the medical record, there’s no evidence that any particular diagnostic or therapeutic maneuver happened.

 

  1. Contact your malpractice company immediately after a bad outcome occurs. Do everything your attorneys recommend at that point.

 

  1. The deposition. If a lawsuit is filed, you’ll eventually be deposed under oath by the plaintiff attorneys, so they can hear your version of what happened. Your defense attorney will be in attendance. This deposition may occur years after the patient event. Many lawsuits take five years or more to be resolved, a marked contrast to the surgical world we work in day to day. In our surgical world, when a diagnosis is made, the case is booked, and the anesthetic/surgery will take place hours or days later. Malpractice law moves at a glacial place. In the past, depositions were all done in person, with the attorneys and the court reporter sitting with you around a table in a conference room. Nowadays it’s possible the deposition will take place via Zoom teleconference, because of the possibility of altered geography with doctors changing jobs or localities. In either case, the deposition is an opportunity for the opposing lawyers to question you to discover facts about your education, your practice, and what you were thinking, and what you actually did on the day of the complication. You’ll be nervous at the deposition. Your job is to tell the truth. Don’t get angry. You can help yourself by studying the medical record in detail. You can help yourself by reviewing the standards of care for managing the type of medical event that occurred. If your performance deviated from what you now perceive as the standard of care, discuss this with your attorney ahead of time.

 

  1. The expert witnesses. Both the plaintiff and the defense attorneys will likely hire expert witnesses to opine on whether the standard of care was breached or not. The experts may be professors from university medical centers, or they may be community doctors who have a practice similar to the defendant. Either designation has advantages and disadvantages. The university professor may have extensive knowledge of the teachings of standard of care practice, yet may never have given an anesthetic by themselves at 3 a.m. for an emergency case at a community hospital with a 300-pound patient who has a stomach full of pizza and beer. The community doctor may have extensive experience giving anesthetics in an identical setting as the adverse outcome occurred, yet have no publication history and no recognized specific expertise in the field of anesthesiology whatsoever. Each expert will usually write an expert report or affidavit regarding the standard of care issues, and each will usually be deposed at a later date. Reading and understanding the expert reports and their depositions, if available, will best prepare you for your own deposition or courtroom testimonies. If the plaintiff is unable to find an expert witness to criticize your management, that’s a good sign your case will likely be dismissed.

 

  1. Very few malpractice cases proceed to courtroom trials. If your case does go to trial, 50 – 90% of the time the jury will side with the defendant physician and find you innocent. If your case goes to trial, more likely than not this will occur many years (perhaps three to six) after the event happened. The trial will likely be a week or more in duration, and you’ll be required to sit there at the defense table every hour of the trial. When you’re called to the witness stand, the first half of your testimony will be responses to easy questions from your own attorney. Your defense attorney will try to establish that you are an excellent doctor who did nothing but standard of care medical practice during the entire case. Once your defense attorney is finished interviewing you, the plaintiff attorney will cross examine you. This will be stressful. Expect series of questions, all in which the answer is “Yes,” which lead up to conclusions you don’t want to agree with. The plaintiff attorney’s mission is to make you agree with this list of assertions, which then lead to the conclusion that you did not practice at the standard of care. I’ve never been sued, and I’ve never had to testify under oath about my clinical care, but I’ve testified dozens of times in depositions and courtrooms, and it’s challenging. As an anesthesiologist, you’re at home in the operating room. Attorneys are at home in the courtroom. You’re in their home court, and they’ll attempt to twist your words and deeds to meet their interpretation of what happened.

I hope you never get sued.

The emotional toll of the malpractice lawsuit ordeal—the Medical Malpractice Stress Syndrome—is well chronicled HERE. Physician defendants develop anxiety and depression. If you’re sued, seek the support of your defense attorney and perhaps from a licensed professional therapist.

Realize that malpractice claims are an occupational hazard, not a sign that you’re a bad physician.

*

*

 

The most popular posts for laypeople on The Anesthesia Consultant include: How Long Will It Take To Wake Up From General Anesthesia? Why Did Take Me So Long To Wake From General Anesthesia? Will I Have a Breathing Tube During Anesthesia?What Are the Common Anesthesia Medications? How Safe is Anesthesia in the 21st Century? Will I Be Nauseated After General Anesthesia? What Are the Anesthesia Risks For Children?

The most popular posts for anesthesia professionals on The Anesthesia Consultant  include: 10 Trends for the Future of Anesthesia Should You Cancel Anesthesia for a Potassium Level of 3.6? 12 Important Things to Know as You Near the End of Your Anesthesia Training Should You Cancel Surgery For a Blood Pressure = 170/99?Advice For Passing the Anesthesia Oral Board Exams What Personal Characteristics are Necessary to Become a Successful Anesthesiologist?

READ ABOUT RICK NOVAK’S FICTION WRITING AT RICK NOVAK.COM

RICK NOVAK’S BOOKS ARE AVAILABLE AT AMAZON.COM

Leave a Reply