Litigation and Anesthetic Complications

LITIGATION AND ANESTHETIC COMPLICATIONS

All anesthesia practitioners will have patients with adverse outcomes, and in the USA most anesthesi-ologists will at some point in their career be involved to one degree or another in malpractice litigation. Consequently, all anesthesia staff should expect litigation to be a part of their professional lives and acquire suitably solvent medical malpractice insur-ance with coverage appropriate for the community in which they practice.

When unexpected events occur, anesthesia staff must generate an appropriate differential diagnosis, seek necessary consultation, and execute a treat-ment plan to mitigate (to the greatest degree possi-ble) any patient injury. Appropriate documentation in the patient record is helpful, as many adverse outcomes will be reviewed by facility-based and practice-based quality assurance and performance improvement authorities. Deviations from accept-able practice will likely be noted in the practitioner’s quality assurance file. Should an adverse outcome lead to litigation, the medical record documents the practitioner’s actions at the time of the incident. Often years pass before litigation proceeds to the point where the anesthesia provider is asked about the case in question. Although memories fade, a clear and complete anesthesiology record can pro-vide convincing evidence that a complication was recognized and appropriately treated.

A lawsuit may be filed, despite a physician’s best efforts to communicate with the patient and family about the intraoperative events, management deci-sions, and the circumstances surrounding an adverse event. It is often not possible to predict which cases will be pursued by plaintiffs! Litigation may be pur-sued when it is clear (at least to the defense team) that the anesthesia care conformed to standards, and, conversely, that suits may not be filed when there is obvious anesthesia culpability. That said, anesthetics that are followed by unexpected death, paralysis, or brain injury of young, economically productive individuals are particularly attractive to plaintiff ’s lawyers. When a patient has an unexpect-edly poor outcome, one should expect litigation irrespective of one’s “positive” relationship with the patient or the injured patient’s family or guardians.

Malpractice occurs when four requirements are met: (1) the practitioner must have a dutyto the patient; (2) there must have been a breach of duty (deviation from the standard of care); (3) the patient (plaintiff ) must have suffered an injury; and (4) the proximate cause of the injury must have been the practitioner’s deviation from the standard of care. A duty is established when the practitioner has an obligation to provide care (doctor–patient relation-ship). The practitioner’s failure to execute that dutyconstitutes a breach of duty. Injuries can be physi-cal, emotional, or financial. Causation is established; if but for the breach of duty, the patient would not have experienced the injury. When a claim is meri-torious, the tort system attempts to compensate the injured patient and/or family members by awarding them monetary damages.

Being sued is stressful, regardless of the per-ceived “merits” of the claim. Preparation for defense begins before an injury has occurred. Anesthesiol-ogy staff should carefully explain the risks and bene-fits of the anesthesia options available to the patient. The patient grants informed consent following a discussion of the risks and benefits. Informed con-sent does not consist of handing the patient a form to sign. Informed consent requires that the patient understand the choices being presented. As previ-ously noted, appropriate documentation of patient care activities, differential diagnoses, and thera-peutic interventions helps to provide a defensible record of the care that was provided, resistant to the passage of time and the stress of the litigation experience.

When an adverse outcome occurs, the hospital and/or practice risk management group should be immediately notified. Likewise, one’s liability insur-ance carrier should be notified of the possibility of a claim for damages. Some policies have a clause that disallows the practitioner from admitting errors to patients and families. Consequently, it is important to know and obey the institution’s and insurer’s approach to adverse outcomes. Nevertheless, most risk managers advocate a frank and honest disclo-sure of adverse events to patients or approved family members. It is possible to express sorrow about an adverse outcome without admitting “guilt.” Ideally, such discussions should take place in the presence of risk management personnel and/or a departmental leader.

It must never be forgotten that the tort system is designed to be adversarial. Unfortunately, this makes every patient a potential courtroom adver-sary. Malpractice insurers will hire a defense firm to represent the anesthesia staff involved. Typically, multiple practitioners and the hospitals in which they work will be named to involve the maximal number of insurance policies that might pay in the event of a plaintiff ’s v ictory, and to ensure that the defendants cannot choose to attribute “blame” for the adverse event to whichever person or entity was not named in the suit. In some systems (usu-ally when everyone in a health system is insured by the same carrier), all of the named entities are represented by one defense team. More commonly, various insurers and attorneys represent specific practitioners and institutional providers. In this instance, those involved may deflect and diffuse blame from themselves and focus blame on others also named in the action. One should not discuss elements of any case with anyone other than a risk manager, insurer, or attorney, as other conversations are not protected from discovery. Discovery is the process by which the plaintiff ’s attorneys access the medical records and depose witnesses under oath to establish the elements of the case: duty, breach, injury, and causation. False testimony can lead to criminal charges of perjury.

Oftentimes, expediency and financial risk expo-sure will argue for settlement of the case. The prac-titioner may or may not be able to participate in this decision depending upon the insurance policy. Settled cases are reported to the National Practitio-ner Data Bank and become a part of the physician’s record. Moreover, malpractice suits, settlements, and judgments must be reported to hospital authorities as part of the credentialing process. When apply-ing for licensure or hospital appointment, all such actions must be reported. Failure to do so can lead to adverse consequences.

The litigation process begins with the delivery of a summons indicating that an action is pending. Once delivered, the anesthesia defendant must con-tact his or her malpractice insurer/risk management department, who will appoint legal counsel. Counsel for both the plaintiff and defense will identify “inde-pendent experts” to review the cases. These “experts” are paid for their time and expenses and can arrive at dramatically different assessments of the case mate-rials. Following review by expert consultants, the plaintiff ’s c ounsel may depose the principal actors involved in the case. Providing testimony can be stressful. Generally, one should follow the advice of one’s defense attorney. Oftentimes, plaintiff ’s attor-neys will attempt to anger or confuse the deponent, hoping to provoke a response favorable to the claim. Most defense attorneys will advise their clients to answer questions as literally and simply as possible, without offering extraneous commentary. Should the plaintiff ’s attorney become abusive, the defense attorney will object for the record. However, deposi-tions, also known as “examinations before trial,” are not held in front of a judge (only the attorneys, the deponent, the court reporter[s], and [sometimes] the videographer are present). Obligatory small talk often occurs among the attorneys and the court reporters. This is natural and should not be a source of anxiety for the defendant, because in most locali-ties, the same plaintiff ’s and defense attorneys see each other regularly.

Following discovery, the insurers, plaintiffs, and defense attorneys will “value” the case and attempt to monetize the damages. Items, such as pain and suf-fering, loss of consortium with spouses, lost wages, and many other factors, are included in determining what the injury is worth. Also during this period, the defense attorney may petition the court to grant defendants a “summary judgment,” dismissing the defendant from the case if there is no evidence of malpractice elicited during the discovery process. At times, the plaintiff ’s attorneys will dismiss the suit against certain named individuals after they have testified, particularly when their testimony impli-cates other named defendants.

Settlement negotiations will occur in nearly every action. Juries are unpredictable, and both parties are often hesitant to take a case to trial. There are expenses associated with litigation, and, consequently, both plaintiff and defense attorneys will try to avoid uncertainties. Many anesthesia providers will not want to settle a case because the settlement must be reported. Nonetheless, an award in excess of the insurance policy maximum may (depending on the jurisdiction) place the personal assets of the defendant providers at risk. This underscores the importance of our advice to all practitioners (not only those involved in a lawsuit) to assemble their personal assets (house, retirement fund, etc.) in a fashion that makes per-sonal asset confiscation difficult in the event of a negative judgment. One should remember that an adverse judgment may arise from a case in which most anesthesiologists would find the care to meet acceptable standards!

When a case proceeds to trial, the first step is jury selection in the process of voir dire—from the French—“to see, to say.” In this process, attorneys for the plaintiff and defendant will use various pro-filing techniques to attempt to identify (and remove) jurors who are less likely to be sympathetic to their case, while keeping the jurors deemed most likely to favor their side. Each attorney is able to strike a certain number of jurors from the pool because they perceive an inherent bias. The jurors will be ques-tioned about such matters as their educational level, history of litigation themselves, professions, and so forth.

Following empanelment, the case is presented to the jury. Each attorney attempts to educate the jurors—who usually have limited knowledge of healthcare (physicians and nurses will usually be struck from the jury)—as to the standard of care for this or that procedure and how the defendants did or did not breach their duty to the patient to uphold those standards. Expert witnesses will attempt to define what the standard of care is for the commu-nity, and the plaintiff and defendant will present experts with views that are favorable to their respec-tive cause. The attorneys will attempt to discredit the opponent’s experts and challenge their opinions. Exhibits are often used to explain to the jury what should or should not have happened and why the injuries for which damages are being sought were caused by the practitioner’s negligence.

After the attorneys conclude their closing remarks, the judge will “charge” the jurors with their duty and will delineate what they can consider in making their judgment. Once a case is in the hands of a jury, anything can happen. Many cases will set-tle during the course of the trial, as neither party wishes to be subject to the arbitrary decisions of an unpredictable jury. Should the case not settle, the jurors will reach a verdict. When a jury determines that the defendants were negligent and negligence was the cause of the plaintiff ’s injuries, the jury will determine an appropriate award. If the award is so egregiously large that it is inconsistent with awards for similar injuries, the judge may reduce its amount. Of course, following any verdict, there arenumerous appeals that may be filed. It is important to note that appeals typically do not relate to the medical aspects of the case, but are filed because the trial process itself was somehow flawed.

Unfortunately, a malpractice action can take years to reach a conclusion. Consultation with a mental health professional may be appropriate for the defendant when the litigation process results in unmanageable stress, depression, increased alcohol consumption, or substance abuse.

Determining what constitutes the “standard of care” is increasingly complicated. In the United Sates, the definition of “standard of care” is made separately by each state. The standard of care is NOT necessarily “best practices” or even the care that another physician would prefer. Generally, the stan-dard of care is met when a patient receives care that other reasonable physicians in similar circumstances would regard as adequate. The American Society of Anesthesiologists (ASA) has published standards, and these provide a basic framework for routine anesthetic practice (eg, monitoring). Increasingly, a number of “guidelines” have been developed by the multiple specialty societies to identify best practices in accordance with assessments of the evidence in the literature. The increasing number of guidelines prof-fered by the numerous anesthesia and other societ-ies and their frequent updating can make it difficult for clinicians to stay abreast of the changing nature of practice. This is a particular problem when two societies produce conflicting guidelines on the same topic using the same data. Likewise, the information upon which guidelines are based can range from randomized clinical trials to the opinion of “experts” in the field. Consequently, guidelines do not hold the same weight as standards. Guidelines produced by reputable societies will generally include an appro-priate disclaimer based on the level of evidence used to generate the guideline. Nonetheless, plaintiff ’s attorneys will attempt to use guidelines to establish a “standard of care,” when, in fact, clinical guide-lines are prepared to assist in guiding the delivery of therapy. However, if deviation from guidelines is required for good patient care, the rationale for such actions should be documented on the anesthesia record, as plaintiff ’s attorneys will attempt to use the guideline as a de facto standard of care.