MEDICOLEGAL ISSUES
From the Texas Society of Anesthesiologists’, Annual Meeting, September 8-11, 2005
| MEDICOLEGAL ISSUES IN PEDIATRIC ADENOTONSILLECTOMY—Mary Dale Peterson, MD, MHA, Associate
Professor of Anesthesiology, University of Texas Health Science Center at San Antonio (UTHSCSA) and University of
Texas Medical Branch (UTMB), Galveston; Staff Anesthesiologist and Medical Director, Driscoll Children's Health Plan,
Driscoll Children’s Hospital, Corpus Christi, Texas
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| Case study: 4-yr-old male child admitted for adenotonsillectomy (T&A); symptoms snoring associated with large tonsils;
medical history (slightly premature but never required O2 ); had mild case of midfacial microsomia; anesthetic—routine induction
with sevoflurane; intubated with atracurium; given dexamethasone and ondansetron; extubated and given 1.5 mg
morphine; outcome—patient discharged 2 hr after surgery, sipping clear liquids; 3 hr later, parents called 911 from home;
child in full arrest when emergency medical service (EMS) arrived
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| Indications for tonsillectomy: recurrent sore throats (7 in 1 yr; 5 in each of 2 yr; 3 in each of 3 yr); obstructed tonsils (associated
with sleep apnea, speech defects, or failure to thrive [FTT])
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| Complications of tonsillectomy: hemorrhage (early [immediately following surgery] or late [usually 7-10 days after surgery]);
refractory emesis (can be “fairly major problem”); dehydration (probably responsible for majority of readmissions);
respiratory complications
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| General beliefs about pediatric obstructive sleep apnea (OSA): associated with snoring, seen in obese children, and associated
with daytime sleepiness (also seen in nonobese children; often associated with snoring; however, daytime sleepiness
more of adult symptom, not really seen in pediatric patients; many children instead have behavioral disturbances);
adenotonsillar hypertrophy most common cause of disorder; sleep studies not diagnostic gold standard; T&A cures majority
of cases; very young children require overnight observation in hospital after surgery
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| Sleep-disordered breathing (SDB) in children: continuum of upper airway obstruction; can be just snoring (with no apnea
or changes in saturation); upper airway resistance syndrome; or child can have full-blown OSA
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| Differences in pediatric vs adult OSA: snoring more continuous; patients may not have apnea, just hypopnea; tend to be
hyperactive; no sex predilection; T&A curative in most cases
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| Problems associated with pediatric OSA: neurobehavioral—more daytime sleepiness and hyperactivity; higher incidence
of attention-deficit/hyperactivity disorder (ADHD); poor academic performance (reversed after treatment);
cardiovascular—high diastolic blood pressure; significant reduction in right ventricular ejection fraction (reversed after
surgery); FTT—decreased appetite; reduced secretion of growth hormone; increased work of breathing
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| Symptoms of pediatric OSA: nocturnal—snoring; pauses in breathing; restless sleep, nightmares; enuresis; daytime—
mouth breathing; hyperactivity; abnormal behavior; learning problems; weight problems
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| Questions and controversies in pediatric OSA: what are diagnostic criteria; who should be tested; what are indications for
treatment; what are short- and long-term consequences of no treatment; when is postoperative monitoring required
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| Abnormal values on pediatric polysomnography (PSG): obstructive apnea index >1/hr; apnea-hypopnea index >5/hr;
peak end-tidal carbon dioxide (CO2 ) >53mm Hg or end-tidal CO2 >50mm Hg for >10% of total sleep time; minimum
pulse oximetry (SpO2 ) <92%; no gold standard for diagnosis of SDB in children; PSG can identify statistically abnormal
breathing, but cannot reliably predict clinical symptoms and treatment outcomes
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| Studies: increased behavioral morbidity in school-aged children with SDB (study of 829 children); clinical assessment of
pediatric OSA (randomized trial of 59 children)
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| T&A for pediatric OSA: curative in 85% of cases (obesity not factor); uvulopalatopharyngoplasty (UPPP) may be required
if T&A not curative in obese child; high preoperative respiratory disturbance index (RDI) not necessarily best indicator
of abnormal postoperative PSG; postoperative snoring associated with abnormal PSG in 60% of children
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| Anticipating postoperative respiratory complications: 1994 study recommended overnight observation in T&A patients
who met any of 7 high-risk clinical criteria (<2 yr of age; craniofacial abnormalities; FTT; hypotonia; cor pulmonale;
morbid obesity; previous upper airway trauma; high-risk PSG criteria); 2004 American Academy of Pediatrics (AAP)
Clinical Practice Guidelines for Diagnosis & Management of Pediatric OSA recommended postoperative monitoring with
continuous SpO2 if patients met following criteria (<3 yr of age; severe OSA on PSG; cardiac symptoms of OSA; FTT; obesity;
prematurity; recent respiratory infection; craniofacial abnormalities; neuromuscular disorders); 1997 retrospective
study found 5 predictive factors for respiratory complications after T&A (<3 yr of age; congenital heart disease; cerebral
palsy; seizures; prematurity)
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| Safety of pediatric short-stay tonsillectomy: retrospective study of 189 patients; 54 patients excluded; 46 scheduled for
planned inpatient admissions; 8.2% had unscheduled admissions; observation period averaged 144 min; of 123 patients
discharged, 3.2% readmitted for bleeding and poor oral intake; authors concluded relatively short period of postoperative
observation safe and cost-effective
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| Risk factors for complications: criteria for admission and monitoring—severe OSA symptoms or diagnosis of OSA on
PSG; age ≤3 yr; neuromuscular and craniofacial abnormalities; genetic syndromes; other possible considerations (respiratory
tract infection with fever within 2 wk; prematurity)
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| AAP Clinical Practice Guideline for Diagnosis and Management of Childhood OSA Syndrome (2002): all children
screened for snoring; complex, high-risk patients referred to specialist; thorough diagnostic evaluation; T&A first-line
treatment; high-risk patients monitored as inpatients postoperatively; patients should be reevaluated postoperatively with
objective testing
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| Summary: scope of childhood OSA wider, symptomatology broader, and prevalence higher than previously believed; no
gold standard for diagnosis; RDI indicating T&A unknown; continuous positive airway pressure (CPAP) and bilevel positive
airway pressure (BiPAP) used increasingly in severe cases; T&A curative in mild and some moderate cases of OSA
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| Other pearls: opioid requirements reduced in young children with OSA (speaker usually does not use muscle relaxants during
T&A; tends to use inhalation agents; usually extubates patients while asleep; then, as patient starts to arouse, titrates
morphine as necessary); dexamethasone reduces vomiting, improves oral intake, and decreases pain; question of bleeding
associated with cyclooxygenase-2 (COX-2) inhibitors (speaker does not use them)
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| Case study: 4-yr-old underwent T&A for airway obstruction and procedure for flat feet; given normal premedication;
“fairly usual” anesthetic (given narcotics up front, both morphine and fentanyl); procedure time 1 hr 45 min; patient extubated
asleep; had oral airway and stable vital signs in recovery room; given morphine (used adult orders with medication
amount crossed out, and dose of morphine put down as 1 mg; rest of orders read “q5min x 3”); essentially, patient given
overdose of morphine and died; case study defense issues—use of preprinted adult orders; code management
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| Case study: 4-yr-old underwent T&A for snoring and apnea; medical history—premature (32 wk), had patent ductus arteriosus
(PDA) ligation and some respiratory distress syndrome (RDS) requiring O2 for 1 mo; at 2 yr of age, had uncomplicated
adenoidectomy and insertion of pressure-equalizing (PE) tubes; normal induction done; normal amounts of anesthetic given;
surgery time 31 min; noted in anesthetic record that patient had prolonged apnea; given naloxone (Narcan) and extubated 25
min after surgery; in recovery room, patient had stable vital signs, but required “little bit” of jaw thrust; treated with racemic
epinephrine (Vaponefrin); seen by anesthesiologist before discharge (1.5 hr later); next morning, child found nonresponsive
in parents’ bed; no definitive cause of death noted at autopsy
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| Final conclusions: will see more requests for T&A (and not just for chronic tonsillitis; many will be for pediatric OSA syndrome);
each institution needs to set up guidelines for postoperative observation of these children; pain control important,
but so is breathing (children cry for many reasons; does not necessarily indicate need for more narcotics); much more research
needed to determine who should have surgery and who should be monitored postoperatively
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| WHEN TO SETTLE FOR SETTLING—Lydia A. Conlay, MD, PhD, Professor and Chair, Department of Anesthesiology,
Baylor College of Medicine, Houston
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| Malpractice case example: patient with Von Recklinghausen’s disease presented at speaker’s institution for computed tomography
(CT) with contrast for suspected posterior fossa tumor; patient aural psychic, performed séances, and worked
with Philadelphia police department; told radiologist that last time given contrast material, she became nauseated, vomited,
and got headaches that “lasted for months”; thus, patient did not think she should have test; after discussion, patient and radiologist
agreed to proceed with scan under monitoring; patient received test dose of contrast material and had no problems;
but when given full dose, she became nauseated, vomited, got headaches, and developed welts on her body; patient treated
with epinephrine and diphenhydramine (Benadryl); underwent procedure, appeared to be fine, and sent home same day;
however, headaches persisted for months; claim that headaches prevented her from going into trance and earning her livelihood
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| Trial outcome: case went to jury; judge instructed jury they could not consider that patient had lost wages, but could consider
whether appropriate for physician to have performed test in first place; jury came back with $988,000 verdict for
plaintiff and against speaker’s institution; case illustrates that juries not necessarily predictable; many factors can determine
outcome of malpractice case; to settle or not often becomes just simple business decision (can be difficult for physicians
to accept, especially when case defensible)
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| Facts of case: before malpractice case can go to verdict, 3 issues must be satisfactorily addressed (negligence [deviation
from standard of care], proximate cause, and damages); however, juries do not always remember that all 3 components
must be in place and must be linked
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| Reasons for settling: evidence missing; slipshod documentation; conflicting recollection of testimony; doctor does not remember
facts of case (if physician does not remember what occurred, refuting claims of plaintiff’s attorney difficult, if
not impossible); “doctor is not helpful to his or her defense” (comes across as unsympathetic or arrogant; antagonistic toward
attorneys)
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| Dangers of not settling: may allow more time for evidence to become apparent (can work to advantage of either side, but
frequently of benefit to plaintiff); can also provide time for economic damages to increase
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| External reasons: decision to settle can be influenced by external factors (eg, presiding judge, potential jurisdiction of trial)
that have no relation to actual facts of case, but, nevertheless, affect ultimate outcome (example of case against speaker’s
institution brought by plaintiff who suffered ruptured uterus)
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| Personal factors for settling: judgment could exceed policy limits; personal reasons (eg, arrival of malpractice case in conjunction
with other personal disasters can cause physician to feel persecuted from all sides or overwhelmed and unable to
deal with trial)
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| Consequences of settlement: settling of malpractice case requires that it be reported to National Practitioner Data Bank; insurance
premiums may increase; publicity from settlement may imply negligence; institution that settles frequently may
be viewed as “deep pocket”
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| Questions to consider if faced with possibility of settling: will premiums increase? (obtain documentation from carrier
confirming whether this would happen); is confidentiality involved in settlement enforceable? (generally, confidentiality
clauses not considered enforceable); whether case can be settled without physician’s consent (in many states, laws passed
allowing this)
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| Defense triad in Texas: in malpractice cases, important to understand and be aware of who insurer and representing attorney
actually work for and to whom they have primary responsibility (insurer generally works for person or institution
paying for policy, while attorney primarily working for insurance company); Texas state law established that attorney-
client privilege belongs to physician, and attorney has fiduciary responsibility to act in his or her client’s best interest; so
while defense may be conducted by physician’s employer, academic center, or medical group, in Texas this responsibility
has led to defense triad
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| Relationship with hospital can work to physician’s advantage: speaker has seen institutions take responsibility for settlement
to prevent doctor from being reported to National Practitioner Data Bank (particularly true for resident physicians)
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| Decision whether to settle: depends on how malpractice case comes together; settle cases in which potential for damage
great, where liability clear (or marginal), or some combination of 2; great variability and many concerns that must be considered
in each case; bottom line is that decision to settle not necessarily related to facts of case
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| Concluding comments: some comments on tort reform in Texas; only 2% of negligent injuries result in claims, and just
17% of claims involve negligent injury (ie, few true injuries result in claims, while claims do not come from injuries); injured
patients who sue get only 40% of compensation amount awarded; physicians who go to trial win in 80% of cases;
still, many good reasons to settle malpractice cases (even when defensible)
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Educational Objectives
| The goal of this activity is to provide a better understanding of certain medicolegal issues—specifically, the risk management
issues in pediatric adenotonsillectomy (T&A) and the factors that determine when to settle a malpractice case. After
hearing and assimilating this program, the listener will be able to:
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 | 1. Cite the indications for and complications associated with pediatric tonsillectomy.
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| 2. Describe the characteristics and symptoms of and problems resulting from pediatric obstructive sleep apnea (OSA),
and explain how it differs from the adult syndrome.
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| 3. Discuss the role of adenotonsillectomy (T&A), possible complications, and the risk factors that indicate a need for
postoperative monitoring.
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| 4. Analyze the various factors influencing the outcome of a malpractice case.
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| 5. Understand and recognize those cases that are best settled rather than taken to trial.
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Discussed on This Program
Acetaminophen with codeine [many preparations and trade names]
Atracurium besylate [Tracrium]
Dexamethasone [Aeroseb-Dex, AK-Dex, Decadron, Decadron Phosphate, Decaspray, Dexameth, Dexamethasone Intensol,
Dexone, Hexadrol, Maxidex]
Diphenhydramine HCl [Benadryl, others]
Epinephrine [Adrenalin Chloride, Adrenalin Chloride Solution, Epifrin, EpiPen, EpiPen Jr., Glaucon, microNefrin,
Nephron, Primatene Mist, S2]
Fentanyl citrate [Sublimaze]
Hydrocodone bitartrate and acetaminophen [Vicodin, others]
Ketorolac tromethamine [Acular, Acular LS, Toradol] Meperidine HCl [Demerol]
Morphine sulfate [Astramorph PF, Avinza, DepoDur, Duramorph, Infumorph, Infumorph 200, Infumorph 500, Kadian,
MSIR, MS Contin, Oramorph SR, RMS, Roxanol, Roxanol 100, Roxanol T]
Naloxone HCl [Narcan]
Ondansetron HCl [Zofran, Zofran ODT]
Racepinephrine (racemic epinephrine) [microNefrin, Nephron, S-2, Vaponefrin]
Sevoflurane [Ultane]
Suggested Reading
Biavati MJ et al: Predictive factors for respiratory complications after tonsillectomy and adenoidectomy in children. Arch
Otolaryngol Head Neck Surg 123:517, 1997; Brennan TA et al: Relation between negligent adverse events and the outcomes
of medical-malpractice litigation. N Engl J Med 335:1963, 1996; Dawson GS et al: Improved postoperative pain
control in pediatric adenotonsillectomy with dextromethorphan. Laryngoscope 111:1223, 2001; De Serres LM et al: Impact
of adenotonsillectomy on quality of life in children with obstructive sleep disorders. Arch Otolaryngol Head Neck
Surg 128:489, 2002; Erler T, Paditz E: Obstructive sleep apnea syndrome in children: a state-of-the-art review. Treat
Respir Med 3:107, 2004; Gerber ME et al: Selected risk factors in pediatric adenotonsillectomy. Arch Otolaryngol Head
Neck Sur 122:811, 1996; Goldstein NA et al: Clinical assessment of pediatric obstructive sleep apnea. Pediatrics 114:33,
2004; Griffith JL: Why defensible malpractice cases have to be settled. Med Econ 72:153, 1995; Horan DW et al: Trials,
settlements, and arbitration. The plaintiff's perspective. Clin Plast Surg 26:93, 1999; Johnson LJ: Is any malpractice settlement
really confidential? Med Econ 77:154, 2000; Kerr CE: Why I settled a malpractice suit I thought I could win. Med
Econ 76:215, 1999; Lalakea ML et al: Safety of pediatric short-stay tonsillectomy. Arch Otolaryngol Head Neck Surg
125:749, 1999; Martello J: Trials, settlements, and arbitration. The defendant's perspective. Clin Plast Surg 26:97, 1999;
McColley SA et al: Respiratory compromise after adenotonsillectomy in children with obstructive sleep apnea. Arch Otolaryngol
Head Neck Surg 118:940, 1992; Nixon GM et al: Sleep and breathing on the first night after adenotonsillectomy
for obstructive sleep apnea. Pediatr Pulmonol 39:332, 2005; Rieder AA, Flanary V: The effect of polysomnography on
pediatric adenotonsillectomy postoperative management. Otolaryngol Head Neck Surg 132:263, 2005; Rosen CL: Obstructive
sleep apnea syndrome in children: controversies in diagnosis and treatment. Pediatr Clin North Am 51:153, 2004;
Rosen CL et al: Increased behavioral morbidity in school-aged children with sleep-disordered breathing. Pediatrics
114:1640, 2004; Rosen GM et al: Postoperative respiratory compromise in children with obstructive sleep apnea syndrome:
can it be anticipated? Pediatrics 93:784, 1994; Section on Pediatric Pulmonology, Subcommittee on Obstructive
Sleep Apnea Syndrome. American Academy of Pediatrics: Clinical practice guideline: diagnosis and management of
childhood obstructive sleep apnea syndrome. Pediatrics 109:704, 2002; Wolf WJ, Neal MB, Peterson MD: The hemodynamic
and cardiovascular effects of isoflurane and halothane anesthesia in children. Anesthesiology 64:328, 1986.
Faculty Disclosure
In adherence with ACCME guidelines, the Audio-Digest Foundation requests all lecturers to disclose any significant financial
relationship with the manufacturer or provider of any commercial product or service discussed. For this issue, the faculty reported
nothing to disclose.
Drs. Peterson and Conlay were recorded at the Annual Meeting of the Texas Society of Anesthesiologists, held September
8-11, 2005, in San Antonio. The Audio-Digest Foundation thanks Dr. Peterson, Dr. Conlay, and the Texas Society of Anesthesiologists
for their cooperation in the production of this program.
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