EDUCATION ON LITIGATION
| CLOSED CLAIMS UPDATE: DOES ANESTHESIOLOGY HAVE AN ACHILLES HEEL? —Karen B.
Domino, MD, Professor of Anesthesiology, University of Washington School of Medicine, Seattle
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| American Society of Anesthesiologists’ Closed Claims Project: started in 1985 with 35 professional liability
insurance organizations; currently, 17 insurance organizations participating, insuring ≈13 000 anesthesiologists
(one third of anesthesiologists in United States; predominantly located on coasts and in north);
claims against anesthesiologists only (not nurse anesthetists); excludes dental injuries; collection of sentinel
events; identifies areas of recurrent risk in anesthesiology to provide direction for in-depth analysis; also
provides snapshot of anesthesia liability; sentinel events include difficult intubation, esophageal intubation,
aspiration, and nerve injury (awareness under anesthesia not commonly seen in closed claims database);
closed claims lack denominator data (eg, number of patients receiving anesthesia) and therefore cannot be
used to calculate risk for lawsuit or serious complication; biased toward more severe permanent injuries
and substandard anesthesia care
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 | Complications: death, nerve damage, and brain damage account for two thirds of claims in database; variety
of other complications (eg, newborn injury in 3% of claims; awareness also only ≈3% of claims); damaging
event is specific incident that led to injury; include respiratory problems (≈25%), block-related (15%), cardiovascular
system (eg, air emboli, myocardial infarction, hypovolemia), equipment (eg, central venous
lines, intravenous [IV] catheters, warming equipment), surgical-only problems, and incorrect dosing or
drug; chronic pain becoming high-liability area of practice (≈10% of claims in 1990s); claims for obstetric
anesthesia involve >10% of database (eg, failed block, back pain)
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| Trends in complications and liability: severity of injury in anesthesia malpractice decreased since 1970s;
reduction in claims associated with death, brain damage, and respiratory events (due to reduction in claims of
inadequate oxygenation/ventilation and esophageal intubation); difficult intubation remains important mechanism
of anesthesia injury; median payment in database also decreased since 1970s; in addition, payment portion
of claims reduced; results suggest improving liability profile for anesthesiologists over last 25 yr
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| Burn injuries: operating room (OR) burns during monitored anesthesia care more often result in liability payments;
most common devices causing burns in OR include IV bag (one third of claims, mostly occurring in
1970s and 1980s), warming devices (eg, convection blankets), and cautery (increased in late 1990s; most
occur in monitored anesthesia care); triad of components must come together to ignite fire, including O2 ,
heat or ignition source, and oxidizer (eg, alcohol preparation); open-face draping, O2 administration only if
saturation low, stopping use of O2 1 min before cautery use, and avoiding use of alcohol-based preparation
solutions recommended to reduce risk for cautery-induced fires
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| Regional anesthesia: epidural hematoma—improved outcome if surgery occurs within 8 hr after onset of
symptoms; symptoms include motor block and sensory block; recommendations include monitoring for
signs and symptoms (particularly weakness, not back pain), having high index of suspicion, and ruling out
epidural hematoma promptly; neuraxial cardiac arrest—cause of death or brain damage; occurs in young,
vigorous, healthy patients (eg, obstetric procedure, cesarean delivery, orthopedic surgery); sudden unexpected
severe bradycardia or asystole occurring during neuraxial block; may occur during spinal or epidural
anesthesia; patient may be hemodynamically stable and oxygenating; recommend giving high doses of epinephrine
early in process, elevating legs, and giving fluid volume replacement; may occur at any time during
procedure, depending on anesthetic agent; commonly proposed mechanisms include blockade of
cardiac accelerator fibers with sympathetic blockade and Bezold-Jarisch reflex (low filling of left ventricle
causing paradoxical bradycardic response)
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| Postoperative visual loss: majority associated with prone lumbar spine surgery; posterior ischemic optic neuropathy
(PION) not caused by direct pressure on globe; in contrast, central retinal artery occlusion thought
to be caused by direct pressure on globe; anterior ischemic optic neuropathy may also occur; relatively few
cases with surgical duration <6 hr; suggested risk factors include large blood loss, increased venous congestion,
prolonged hypotension, decreased hemoglobin, vascular disease, and individual patient variation in
ocular vascular anatomy; increased venous pressure reduced by elevating head and using colloids
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| MEDICAL ACCOUNTABILITY vs. LEGAL VULNERABILITY —Harry K. Wallfisch, MD, Professor, Departments
of Anesthesiology and Surgery, and Chair, Professional Liability Review Committee, John Sealy
Hospitals, University of Texas Medical Branch, Galveston
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| Evaluation of medical accountability: often does not align with likelihood of winning or losing lawsuit
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| Professional Liability Review Committee: input includes incidents, claims, and lawsuits; first investigate,
then assess case to determine if mistakes made; posture to settle or defend (early resolution before claim;
meet patient and family; explain what occurred; apologize; make early offer to help during time of grief and
need; discard preconceptions about right and wrong); prevent recurrence; educate; many claims or lawsuits
with no adverse event or injury; more injuries do not result in claim or lawsuit; one person at bedside should
know of problem or incident (difficult to retrieve; sharing errors in punitive system causes embarrassment or
more substantive consequences); honesty important; plaintiff’s attorney does not have access to results of internal
investigation in medical malpractice
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| Malpractice elements: negligence (defined by duty to patient and violation of duty); error (action or inaction;
must be what causes subsequent injury); causation (often unclear)
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| Claim triggers: poor outcome (corrective surgery and curative therapies “don’t make people perfect
again”; patient expectations high and often unrealistic); greed; anger (missing work; life changing because of
surgery; large payment required; kept waiting by anesthesiologist, colleagues, or hospital); claim triggers often
play more instrumental role than negligence, causation, and injury in initiating malpractice cases; threshold
issues
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| Hindsight: common in peer review; often influenced by presupposition (eg, competency of colleague);
knowledge of outcome makes it seem that events leading to outcome should have been more predictable
than they were in reality; means that accident analysis inherently inaccurate; outcome knowledge poisons
ability to recreate view of practitioner before decision or error resulting in injury; works against clinicians
involved; professionals at peer review and juries also have hindsight bias
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| Outcome: study from 1991 showed that often, standard of care less when injury worse; 112 anesthesiologists
reviewed 21 pairs of cases; 110 board certified; >60% in private practice; all qualified experienced reviewers;
cases resulted in either temporary or permanent injury; no obvious serious errors; cases amenable to
having outcome changed; “in the cases, the medicine, the decisions, the doses were exactly the same”; no
one clinician had both sides of any pair; when care resulted in temporary injury (resolved without sequelae),
standard of care met in 70% of cases; but, if injury permanent, standard of care met in only 35% of
cases; anesthesiologists who understand care affected by outcome; problem with implicit review
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| Error: Cheney looked at paid cases and whether standard of care met; found that when standard of care met
(anesthesia reviewer’s assessment), payment made in 40% of cases; when standard of care not met, payment
made in >80% of cases; ≈20% of patients may have had injury from violation of standard of care or
negligence but did not receive payment; error bias >2 to 1 against clinician
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| Plaintiff recovery probability: ≈33% of medical malpractice cases that go to trial (most contentious cases);
only 33% of claims become lawsuits; remainder often result in settlements (because of biases, defense attorney
and clinicians may not trust jury; plaintiff’s attorney also may not trust jury; both parties willing to settle
in advance); higher percentage of jury verdict for plaintiff when childbirth injury involved
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| Time frame: in Texas, injury-to-claim ≈2 yr; claim-to-deposition ≈1.5 yr; claims involving children may continue
for several years; emotional burden over legal time frame (what will colleagues think? how will this affect
credentialing? was mistake really made?); nationally, incident-to-trial >4 yr
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| Monetary cost: from 1997 to 2003, national median jury awards in medical malpractice almost doubled; mean
skewed upward by large judgments; concern that plaintiff’s attorney may be good enough, injured party or
family may be sympathetic enough, or jury will become angry at clinician (eg, due to perceived arrogance or
belief that mistakes made) and “make some kind of blockbuster award”; clinician may exceed limit and face
prospect of being financially crippled; caps remove “lottery effect” (massive judgments; in Texas, $250 000
each for clinician, hospital, and nursing home; total of $750 000 for noneconomic damages); however, jury
may still deliberate on economic damages (still risk for large judgment); in anesthesia, payments (settlements
and jury awards) lower (1990s dollars); ≈50% lower than in 1970s; temporary nondisabling injuries approximately
equal; lower payments for death as result of what may or may not have been anesthesia malpractice;
significantly lower for permanent disabling injury; standard of care met 20% of time in 1970s, ≈50% of time
in 1980s, and ≈60% of time in 1990s; in 1970s and most of 1980s, may have been only implicit determinations
of standard of care; specific rules established in 1990s; less risk for inflammatory judgment when clinician
adheres to standards
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| Texas physicians with claims: from 1989 to 2002, 50% had claims against them; specialties with ≈80% having
claims include plastic surgery, cardiothoracic surgery, orthopedics, trauma surgery, and neurosurgery;
≈2500 anesthesiologists in state; ≈1200 with claims against them (≈2400 claims total); geographic area or
type of practice may determine susceptibility to malpractice claim; internal medicine and public health less
than average number of claims
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Educational Objectives
| The goal of this program is to educate the listener about the American Society of Anesthesiologists’ Closed
Claims Project and medical malpractice. After hearing and assimilating this program, the clinician will be better
able to:
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| 1. Describe the most common injuries and their mechanisms resulting in anesthesia liability.
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| 2. Examine severe complications of neuraxial blockade, including neuraxial cardiac arrest.
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| 3. Discuss how to prevent operating room fires during monitored anesthesia care.
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| 4. Document the factors associated with visual loss after prone spine surgery.
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| 5. Compare medical accountability versus legal vulnerability.
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Discussed on This Program
Atropine sulfate (several trade names)
Ephedrine sulfate [Pretz-D]
Epinephrine (several trade names)
Suggested Reading
Barker SJ et al: Fire in the operating room: a case report and laboratory study. Anesth Analg 93:960, 2001; Benumof
JL et al: Multifactorial etiology of postoperative vision loss. Anesthesiology 96:1531, 2002; Caplan
RA et al: Effect of outcome on physician judgments of appropriateness of care. JAMA 265:1957, 1991; Caplan
RA et al: Unexpected cardiac arrest during spinal anesthesia: a closed claims analysis of predisposing
factors. Anesthesiology 68:5, 1988; Cheney FW et al: Standard of care and anesthesia liability. JAMA
261:1599, 1989; Cheney FW et al: Nerve injury associated with anesthesia: a closed claims analysis. Anesthesiology
90:1062, 1999; Cheney FW: The American Society of Anesthesiologists Closed Claims Project: what
have we learned, how has it affected practice, and how will it affect practice in the future? Anesthesiology
91:552, 1999; Domino KB et al: Airway injury during anesthesia: a closed claims analysis. Anesthesiology
91:1703, 1999; Domino KB et al: Injuries and liability related to central vascular catheters: a closed claims
analysis. Anesthesiology 100:1411, 2004; Fitzgibbon DR et al: Chronic pain management: American Society
of Anesthesiologists Closed Claims Project. Anesthesiology 100:98, 2004; Hickson GB et al: Factors that
prompted families to file medical malpractice claims following perinatal injuries. JAMA 267:1359, 1992; Hickson
GB et al: Obstetricians' prior malpractice experience and patients' satisfaction with care. JAMA 272:1583,
1994; Lee LA et al: Causes of elevated intraocular pressure during prone spine surgery. Anesthesiology 97:759
2002; Lee LA et al: Injuries associated with regional anesthesia in the 1980s and 1990s: a closed claims analysis.
Anesthesiology 101:143, 2004; Lesser JB et al: Severe bradycardia during spinal and epidural anesthesia
recorded by an anesthesia information management system. Anesthesiology 99:859, 2003; Peterson GN et al:
Management of the difficult airway: a closed claims analysis. Anesthesiology 103:33, 2005.
Faculty Disclosure
In adherence to 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.
Dr. Domino was recorded at the Eleventh Annual Advances in Physiology and Pharmacology in Anesthesia and
Critical Care, held November 6-9, 2005, in Hilton Head Island, South Carolina, and sponsored by Wake Forest
University School of Medicine; Dr. Wallfisch, at the Annual Meeting of the Texas Society of Anesthesiologists,
held September 8-11, 2005, in San Antonio, Texas. The Audio-Digest Foundation thanks the speakers and the
sponsors for their cooperation in the production of this program.
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