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If a patient suffers a bad outcome after anesthesia, did the anesthesiologist commit malpractice? If there was an anesthesia error, was it anesthesia malpractice?
Not necessarily. There are risks to every anesthetic and every surgery, and if a patient sustains a complication, it may or may not be secondary to substandard anesthesia care.
Let’s look at the most common reasons for anesthesia malpractice claims. In a study by Ranum,(1) researchers examined a total of 607 closed claims from a single national malpractice insurance company over five years between 2007 and 2012. The most frequent anesthesia-related injuries reported were:
- Teeth damage — 20.8 percent of the anesthesia medical malpractice claims
- Death — 18.3 percent
- Nerve damage — 13.5 percent
- Organ damage — 12.7 percent
- Pain — 10.9 percent
- Cardiopulmonary arrest — 10.7 percent
When the minor claims for teeth damage are omitted, claims for death and cardiopulmonary arrest account for nearly one in four closed claims for anesthesiologists. This shows the severe nature of anesthesia bad outcomes.
How can we discern whether a bad patient outcome is a risk for a malpractice claim?
There are four elements to a medical malpractice claim. They are as follows (2):
- Duty to care for the patient. The anesthesiologist must have made a contract to care for the patient. The anesthesiologist meets the patient, takes a history, reviews the chart, does a pertinent physical exam, and discusses the options for anesthetic care. The anesthesiologist then obtains informed consent from the patient to carry out that plan, and the duty to care for the patient is established.
- Negligence occurs if the anesthesiologist failed in his or her duty to care, that is, he or she performed below the standard of care. The standard of care is defined as the level of care expected from a reasonably competent anesthesiologist. If a lawsuit is eventually filed, anesthesiology expert witnesses will testify for both the defense and the plaintiff as to what the standard of care was for this case. If the defendant anesthesiologist performed below the standard of care, they are vulnerable to losing the lawsuit.
- The plaintiff must prove the negligence was a proximate cause of the injury to the patient. If a lawsuit is eventually filed, expert witnesses will argue how and why the negligence was linked or was not linked to the adverse outcome.
- The injury or loss can be measured in monetary compensation to the plaintiff.
Let’s look at two fictional case studies to demonstrate how a bad outcome may or may not be related to anesthesia malpractice:
CASE ONE: A 70-year-old man is scheduled to have laparoscopic abdominal surgery for a partial colectomy to remove a cancer in his large intestine. Prior to his surgery he has a complete history and physical by his internal medicine doctor, and the results of that workup are in the medical chart. The patient medical history is positive for hypertension, hyperlipidemia, and obesity. His Body Mass Index, or BMI, is elevated at 32. His blood pressure is 140/85, and his physical exam is otherwise unremarkable. Prior to the surgery, the anesthesiologist requests clearance from a cardiologist. The cardiologist performs an exercise stress echocardiogram, which is read as normal. The anesthesiologist plans a general anesthetic, and obtains informed consent from the patient. During the informed consent, the anesthesiologist tells the patient that risks involving the heart, the lungs, or the brain are small but not zero. The patient accepts these risks.
The surgery and anesthesia proceed uneventfully. The patient is awakened from general anesthesia and taken to the Post Anesthesia Care Unit. The patient is drowsy and responsive, with a blood pressure of 100/60, a heart rate of 95, a respiratory rate of 16, a temperature of 36.0 Centigrade, and an oxygen saturation of 96% on a face mask delivering 50% oxygen. A Bair Hugger blanket is applied to warm the patient, and morphine sulfate 2 mg IV is given for complaint of abdominal pain.
Thirty minutes later, the patient develops acute shortness of breath, and his oxygen saturation drops to 75%. The anesthesiologist sees him and evaluates him. The cause of the shortness of breath and drop in oxygen level are unclear. The concentration of administered oxygen is increased to 100%, but the patient acutely becomes unresponsive. The anesthesiologist intubates the patient’s trachea, and begins ventilating him through the breathing tube. The patient is still unresponsive and has a cardiac arrest. Despite all Advanced Cardiac Life Support treatments, the patient dies.
An expert witness later reviews the chart, and finds the anesthesia management to be within the standard of care prior to, during, and after the surgery. There was no negligence that caused the cardiac arrest. Why did the patient die? The post-mortem exam, or autopsy, in a case like this could show a pulmonary embolism or a myocardial infarction, either of which can occur despite excellent anesthesia care. The patient was elderly, overweight, and hypertensive. Abdominal surgery and general anesthesia in this patient population are not without risk, even with optimal anesthetic care.
CASE TWO: A 55-year old female is scheduled for a facelift at a freestanding plastic surgery center operating room. Her history and physical examination are normal except that she is 5 feet tall and weighs 200 pounds, for a BMI=39. The anesthesiologist plans a general anesthetic, and obtains informed consent from the patient. After the induction of general anesthesia with propofol and rocuronium, the anesthesiologist is unable to place the endotracheal tube in the patient’s windpipe. He tries repeatedly in vain, and during this time the woman’s oxygen saturation drops to dangerous levels below 70%, and remains low for over five minutes. He eventually places the tube successfully. The surgery is cancelled, and the woman fails to wake up. She is transferred to a local hospital and admitted to the intensive care unit. A neurologic workup confirms that she has anoxic brain damage, or brain death.
This is a case where an overweight but otherwise healthy woman walked into a surgery center for an elective surgery, and emerged brain dead. Per the donor card in the patient’s wallet, the family agreed to donate the patient’s organs. Was this outcome due to malpractice? Yes. The anesthesiologist performed below the standard of care, because he failed to keep the patient oxygenated during the multiple attempts to place the breathing tube. An expert witness for the plaintiff testifies that a reasonably competent anesthesiologist would understand and follow the American Society of Anesthesiologists (ASA) Difficult Airway Algorithm, and use alternate techniques to keep the patient oxygenated should the endotracheal tube placement be technically difficult. (These techniques include bag-mask ventilation, placement of a laryngeal mask airway, or use of a video laryngoscope). The failure to keep the airway open and the failure to keep the patient oxygenated led to the anoxic brain damage. An expert witness for the defense concurs with this opinion, and the anesthesiologist’s malpractice insurance company settles the case by paying the patient’s family.
Complications can occur before, during, or after anesthesia. The overwhelming majority of physician anesthesiologists manage their patients at or above the standard of care. When an adverse outcome occurs there may very well be no negligence or malpractice, and one should expect the legal system to award little or no malpractice award payments.
Does that mean that if the standards of care are adhered to, then there will be no malpractice payment following a bad outcome? Unfortunately, the data say no.
The ASA Closed Claims Project collects closed anesthesia malpractice claim results from the 1970s to the present. From 1975-79, 74% of anesthesia lawsuits resulted in payment. From 1990-99 this proportion declined to 58%. Much of this positive change may be explained by improvements in standards of care, i.e. the change to the routine monitoring of pulse oximetry and end-tidal carbon dioxide levels. In the 1970s, 51% of the lawsuits in which standards of care were met resulted in payment. In the 1990s only 40% of the lawsuits in which standards of care were met resulted in payment, but 40% is not zero.(3)
Other facts about medical malpractice lawsuits: About 93% of malpractice claims close without going to a trial. The average claim that goes to trial involves a 3 to 5 year process.(4) Of the cases that go to trial, 79% of verdicts are for the defendant physician.(5)
Medical errors do occur. Physicians are human. How common are medical errors in anesthesiology? It’s hard to quantitate. Medical errors that do not result in closed malpractice claims are not tabulated.
The issue of medical errors is currently a hot topic. A report published in the The British Medical Journal this week stated that if medical error was a disease, it would rank as the third leading cause of death in the United States, trailing only heart disease and cancer. Medical error was defined as an unintended act of either omission or commission, or one that does not achieve its intended outcome, the failure of a planned action to be completed as intended (an error of execution), the use of a wrong plan to achieve an aim (an error of planning), or a deviation from the process of care that may or may not cause harm to the patient. The authors calculated a mean rate of death from medical error of 251 ,454 cases per year. The authors pointed out that death certificates in the U.S., used to compile national statistics, currently have no facility for acknowledging medical error. The ICD-10 coding system has limited ability to record or capture most types of medical error. The authors recommended that when a medical error resulted in death, both the physiological cause of the death and the related problem with delivery of care should be captured.(6)
Do anesthesiologists commit any of these medical errors? Undoubtedly. What does this mean if you are a patient scheduled for surgery and anesthesia? You should have every expectation your board-certified physician anesthesiologist will practice at or above the standard of care. The chances that you will become an adverse outcome statistic are small, but those chances are not zero.
See my column Do Anesthesiologists Have the Highest Malpractice Insurance Rates? to learn more about malpractice risks and anesthesiologists.
- Ranum D, et al, Six anesthesia-related medical malpractice claim statistics. Analysis of patient injury based on anesthesiology closed claims data from a major malpractice insurer, Journal of Healthcare Risk Management Volume 34,Issue 2,pages 31–42,
- Tsushima WT, Nakano KK, Effective Medical Testifying: A Handbook for Physicians, 1998, Butterworth-Heinemann.
- Posner KL: Data Reveal Trends in Anesthesia Malpractice Payments. ASA Newsletter68(6): 7-8 & 14, 2004.
- Chesanow N, Malpractice: When to Settle a Suit and When to Fight. Medscape Business of Medicine, Sept 25, 2013.
- Jena AB,, Outcomes of Medical Malpractice Litigation Against US Physicians. Arch Intern Med.2012 Jun 11;172(11).
- Makary MA, Daniel M, Medical Error—the Third Leading Cause of Death in the U.S., BMJ, 2016;353:i2139.
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Published in September 2017: The second edition of THE DOCTOR AND MR. DYLAN, Dr. Novak’s debut novel, a medical-legal mystery which blends the science and practice of anesthesiology with unforgettable characters, a page-turning plot, and the legacy of Nobel Prize winner Bob Dylan.
In this debut thriller, tragedies strike an anesthesiologist as he tries to start a new life with his son.
Dr. Nico Antone, an anesthesiologist at Stanford University, is married to Alexandra, a high-powered real estate agent obsessed with money. Their son, Johnny, an 11th-grader with immense potential, struggles to get the grades he’ll need to attend an Ivy League college. After a screaming match with Alexandra, Nico moves himself and Johnny from Palo Alto, California, to his frozen childhood home of Hibbing, Minnesota. The move should help Johnny improve his grades and thus seem more attractive to universities, but Nico loves the freedom from his wife, too. Hibbing also happens to be the hometown of music icon Bob Dylan. Joining the hospital staff, Nico runs afoul of a grouchy nurse anesthetist calling himself Bobby Dylan, who plays Dylan songs twice a week in a bar called Heaven’s Door. As Nico and Johnny settle in, their lives turn around; they even start dating the gorgeous mother/daughter pair of Lena and Echo Johnson. However, when Johnny accidentally impregnates Echo, the lives of the Hibbing transplants start to implode. In true page-turner fashion, first-time novelist Novak gets started by killing soulless Alexandra, which accelerates the downfall of his underdog protagonist now accused of murder. Dialogue is pitch-perfect, and the insults hurled between Nico and his wife are as hilarious as they are hurtful: “Are you my husband, Nico? Or my dependent?” The author’s medical expertise proves central to the plot, and there are a few grisly moments, as when “dark blood percolated” from a patient’s nostrils “like coffee grounds.” Bob Dylan details add quirkiness to what might otherwise be a chilly revenge tale; we’re told, for instance, that Dylan taught “every singer with a less-than-perfect voice…how to sneer and twist off syllables.” Courtroom scenes toward the end crackle with energy, though one scene involving a snowmobile ties up a certain plot thread too neatly. By the end, Nico has rolled with a great many punches.
Nuanced characterization and crafty details help this debut soar.
Click on the image below to reach the Amazon link to The Doctor and Mr. Dylan:
LEARN MORE ABOUT RICK NOVAK’S FICTION WRITING AT RICK NOVAK.COM BY CLICKING ON THE PICTURE BELOW: