PROFESSIONAL LIABILITY
From the American Society of Anesthesiologists’ Annual Meeting, October 13-17, 2007, San Francisco, CA
Karen B. Domino, MD, MPH, Professor of Anesthesiology and Adjunct Professor of Neurological Surgery,
University of Washington School of Medicine, Seattle (Moderator); Robert A. Caplan, MD, Clinical Professor of
Anesthesiology, University of Washington School of Medicine, and Staff Anesthesiologist, Virginia Mason Medical
Center, Seattle; Mark A. Warner, MD, Professor of Anesthesiology and Chair, Anesthesiology Residency Review
Committee, Mayo Clinic College of Medicine, and Dean, Mayo School of Graduate Medical Education, Rochester,
MN; Michael A. Kelly, Esq, Walkup, Melodia, Kelly, Wecht, & Schoenberger, San Francisco; Dominique A.
Pollara, Esq, Schuering, Zimmerman, Scully, Tweedy, and Doyle, Sacramento, CA
| Case 1: 70-yr-old woman undergoing total knee replacement; American Society of Anesthesiologists’ (ASA) physical status
classification 3; history of tobacco smoking, hypertension, and diabetes; epidural anesthesia with intravenous (IV) sedation;
postoperatively, epidural infusion with bupivacaine 0.25% (10 mg/mL) and fentanyl 2 µg/mL started at 10 mL/hr;
discharged to ward without continuous monitoring but with vital signs checked every hour for 4 hr and every 4 hr thereafter;
several hours later, patient still complaining of pain; epidural concentration increased to bupivacaine 0.375% and
fentanyl 3 µg/mL at infusion rate of 15 mL/hr; 2.5 hr later, patient receives hydromorphone, 2 mg, administered intramuscularly
(IM) for continuing pain; 4 hr later, patient given additional 2 mg of IM hydromorphone; level of arousal and
vital signs not assessed for 4 hr; patient found unresponsive, apneic, and pulseless; cardiopulmonary resuscitation (CPR)
initiated and successful, but patient suffered severe brain damage
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| Actions of plaintiff’s attorney: initiate review of records by expert; first questions always about monitoring; dosing
issues involve judgment, monitoring issues do not; most jurors willing to forgive problems in operating room (OR), but
less likely to forgive those that happen after leaving OR, especially when monitoring involved; speaker accepts higher
percentage of cases involving suspected monitoring error; consulting expert more likely to indicate breach of standard of
care when monitoring error involved (Kelly)
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| Analysis by plaintiff’s expert: must be able to verify that he or she is qualified to render opinion on case (based on
witness guidelines from ASA); criteria include 1) current valid unrestricted license to practice, 2) board certification in
anesthesiology, 3) active engagement in clinical practice and familiarity with this particular clinical issue at time of occurrence;
if qualified, then review case; first determine injury; then determine mechanism or physiologic process that
caused injury (in this case, brain damage) to occur; carefully examine medical records; rule out concomitant cardiac disease,
pulmonary embolism, sudden bleeding (resulting in hematocrit of 2%), electrolyte disorder, or hyponatremia; most
likely respiratory depression caused by 2 doses of hydromorphone 2 mg (excessive dose for 70-yr-old patient already receiving
epidural narcotics); determine how actions and behaviors of caregivers related to physiologic mechanism;
speaker feels continuous monitoring with pulse oximetry or electrocardiography would have allowed for detection of
event and intervention before serious injury (Caplan)
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| Point of view of defense expert: plaintiff’s attorney likely to jump to conclusion that monitoring was problem, and
therefore anesthesia provider at fault; issues to consider—cause of morbidity unclear; patient obese, inactive, and underwent
lower extremity procedure; may have had pulmonary embolus or heart disease; could have had ischemic event;
nothing to suggest respiratory depression; pain may have caused rapid heart rate, high blood pressure, and ischemia; necessary
to know degree of brain damage (autopsy indicated); no literature to definitively support use of continuous monitoring;
may not have been helpful in this case; modest dose of lipophilic drug administered epidurally; also administered
small dose of hydromorphone; cautious measured response by anesthesia provider; important to know institutional policies
for monitoring after opioid administration; determine whether nursing staff followed institutional policy; speaker
does not see any culpability for anesthesia provider (Warner)
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| Rebuttal from plaintiff’s expert: if comments in deposition similar to above comments, then defense expert taking
advocacy position; defense expert may weaken or even reverse some statements after further consideration of testimony
on witness stand or with further inquiry; expert witness must be able to give opinion “that really is [an] honest opinion”
and that will hold up to scrutiny (Caplan)
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| Defense attorney: request honest opinion from expert (not what he or she thinks attorney wants to hear); above case difficult
from defense standpoint; question expert carefully about certain opinions; jurors take negative view when either
side appears to be overreaching or dishonest; important to have expert who can point to literature or experiences that fortify
opinion; speaker makes sure expert reviews records as soon as possible; points of consideration—would focus on
monitoring, vital signs, complaints of pain, and appearance; determine whether echocardiography used to evaluate potential
cardiac cause; determine whether anesthesia provider met standard of care and whether he or she acted as reasonable
anesthesia provider would under similar circumstances; consider medication dosages, orders regarding monitoring, and
observations of nurses; evaluate extent of damages; not fruitful for physicians to “point the finger at the nursing staff”
when trying to defend case; hospital will not admit guilt (Pollara)
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| Rebuttal from plaintiff’s attorney: inexperienced attorney may be intimidated by defense expert such as Dr.
Warner; more experienced attorney will look at Dr. Warner’s published articles and ask about his teachings on standard
of care; expert will ultimately have to “back up” (ie, reconsider) because of fundamental interest in welfare of patient
(Kelly); patience important in this case; as case develops, likely to turn toward nurses (Pollara)
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| Defense from viewpoint of hospital: every hospital should have standard policy for monitoring patients receiving
parenteral drugs, including opioids; accordingly, case should not hinge on whether anesthesiologist wrote monitoring order;
hospital administrative team should institute orders for variety of issues (Warner)
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| Standard of care: should be able to draw logical link between deviation in standard of care and physiologic process that
caused injury; ASA admonishes expert witnesses for failing to distinguish between irrelevant deviations in standard of
care (ie, unrelated to injury) and those deviations causally related to injury; in this case, plaintiff’s expert stated that fentanyl,
45 µg/hr, on top of hydromorphone, probably played role in respiratory depression; after several hours of treatment,
infusion of fentanyl into epidural space pharmacologically equivalent to IV infusion of fentanyl (Caplan); fentanyl 1 mL,
even if outside of epidural space or in vessel, similar to baseline infusion through patient-controlled analgesia pump
(Warner)
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| Assessing patient: go to bedside to make assessment, then document (in writing) essential information, including date
and time; important from defense perspective to say, “I was there, this was my assessment” (Pollara); if directions given
by telephone, and anesthesia provider not otherwise engaged in hospital, then questions arise; review of procedures—
after changing drug dosage, observation of patient should probably occur every hour; if not, jurors more likely to find
fault (unless outlined in orders) [Kelly]; stumbling blocks—if plaintiff’s expert testifies about deviation in standard of
care but cannot testify (to reasonable degree of medical probability) to its causal connection, then defense attorney can
probably block that opinion; but facts will come out; case will have “taint” of someone being careless or inconsiderate of
patient (Pollara); if conduct, composition of medications, and rate of infusion all correct, but no documentation, most
would say there has been breach of standard of care (failure to adequately chart); although not causally related to negative
outcome, jurors may get impression that practitioner sloppy (Kelly)
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| Defining standard of care: what reasonable and prudent physician would do under same or similar circumstances,
anywhere in United States at time of event; in specialty of anesthesiology, basic standards for intraoperative monitoring
explicitly defined; practice advisories—not considered by ASA to be standards and may or may not be followed, depending
on clinical conditions and constraints; practice guidelines—in general, agreed on by ≥75% of practitioners
(carry strong weight); sometimes difficult to separate guideline from standard (Caplan); from attorney’s point of view,
guidelines helpful only if they support his or her position; role of guidelines and standard of care in courtroom—
standard of care defined as what experts testifying about; experts rely on background, experience, training, and research;
jury must decide whom to believe; experts typically look at literature and guidelines, but on direct examination, may not
be able to mention specific literature or guidelines in testimony (Pollara); in most states, guidelines not admissible and do
not set standard of care; however, most competent physicians who practice in manner consistent with good training use
guidelines; prefer academicians who also have clinical practices to serve as expert witnesses; jurors sensitive to what is
taught (Kelly); defense uses similar approach; asks plaintiff’s expert what he or she teaches regarding standard of care
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| Expert testimony: looking for weaknesses—when cross-examining plaintiff’s expert, defense examines his or her
background in great detail; asks about time spent giving expert testimony, percentage of income derived from work as expert,
and time spent testifying as defense expert; makes significant impression on jurors; defense must be careful to avoid
similar problem with own experts; practitioner must look at cases and give fair opinion; most “dangerous” (ie, effective)
experts those who are even-handed, do not perform much expert work (or work for both sides), and do not “come across
as being an advocate” (Pollara); ASA guidelines on experts—speaker opines that experts can say whatever they want;
ASA trying to “put some reality checks on that”; guidelines state that expert should give testimony that reflects generally
accepted standards in relevant literature (in August 2007, ASA expert witness review program issued first censure against
testimony given by anesthesiologist) [Caplan]; fees rarely at issue; frequency of testimony does make difference, but only
if extremely disproportionate; gross number of times irrelevant (Kelly)
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| Causation and burden of proof: not “beyond reasonable doubt,” but “more likely than not” (ie, >50% probability)
(Pollara); in case of “sloppy medicine,” basing defense exclusively on scientific niche (ie, technicality) rarely productive
(viewed as excuse) [Kelly]; if expert cannot be found who supports that being presented as standard of care, “it is a losing
case to try it on causation alone”; would probably try to settle case; be patient and see how facts come together; tough
case to win
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| Award beyond malpractice cap: complicated; depends on whether practitioner confronting that type of exposure
consents to settle case; settling—speaker typically able to settle for amount equal to insurance policy limit, even if liability
greater than limit; imperative that physician in this situation have informed consent discussion with attorney (Pollara);
in 30 yr of law practice, speaker has never seen situation where physician’s assets taken in excess verdict case; in
majority of cases, before trial, demand made to settle in amount equal to practitioner’s policy limits; if practitioner,
against advice of insurer, does not want to settle, better than 50-50 likelihood of putting some assets at risk (Kelly); policy
limit demands taken seriously; generally time sensitive; if exposure above policy limit, speaker advises practitioner to
consent; shifts liability from practitioner to insurance carrier (Pollara); always consent if insurance carrier requests; carrier
has “tremendous leverage” when practitioner refuses to consent (Kelly); policy recommendations—policy of $1
million per claim, $3 million per policy period more than adequate; larger policy may place bullseye on practitioner; before
consenting, look at case, look at exposure, talk with attorney, and determine best course of action (Pollara); consent
in case of limits demand, but not in all cases; recommends $2 million malpractice insurance policy (Kelly)
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| Case 2: 40-yr-old man; gastric bypass surgery; anesthesiologist performed awake fiberoptic intubation; before giving his
informed consent before surgery, patient was warned of airway problems and increased risk for brain damage and death
because of excessive weight; patient received general anesthesia with isoflurane; to speed emergence, isoflurane discontinued
2 hr before end of surgery and propofol infusion administered; morphine, <20 mg total, also administered; at end of
surgery, patient appeared strong, was extubated, reached for endotracheal tube, and opened eyes to verbal command; O2
given and patient transported to recovery room; patient then became less responsive and SpO2 dropped to ≈60%; practitioner
then attempted mask ventilation but was unsuccessful; intubation attempted but also unsuccessful; patient became cyanotic
and bradycardic; ventilation also impossible with laryngeal mask airway (LMA); ultimately, patient went into
cardiac arrest; cricothyrotomy performed during ongoing CPR; patient resuscitated but declared brain-dead next day and
support withdrawn
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| Conferring with family and staff: dos and don’ts—provide support teams for direct care-providers of patient; pull
together objective description and understanding of sequence of events; talking with family and disclosing events morally
correct, but make sure caregivers who feel badly about devastating outcome do not make confessions or admissions
that are guilt-driven and irrelevant to facts; surgeon concerns—not always possible to accompany surgeon, but missing
member of care team always gets blamed; easy for surgeon to make comments (intentional or not) that lead family members
to believe surgeon’s performance impeccable and error rested with someone else on care team; making disclosure
to family—be efficient, morally correct, and helpful; mnemonic of one system, TEAM (tell truth, show empathy to
family, apologize for error [if necessary], and manage situation completely) [Caplan]; dealing with anger—patient or
family often angry because they felt ignored or were not given honest answers; only way to get answers to file lawsuit; in
some instances, honest answers given but family not in position to hear because of grief, or were too angry and not interested
in explanation; providing information—communication important during adverse outcome, even if not due to error;
enlist assistance of risk management or social work department; “take a breath” and make sure facts correct before
talking with family; incorrect information makes situation worse; sensitivity and sincerity—important to be compassionate,
not defensive; discussion should occur privately (not in hallway) and without interruptions; if family asks questions
and answer not known, “it’s okay to say we don’t have the answer for that, but we will find the answer and we
will get back to you”; always follow up; unlikely that you will talk with family just once; should be ongoing dialogue until
questions sufficiently answered and family feels comfortable (Pollara); other members of care team may often try to
“figure out a way not to talk to [family]”; surgeon may say, “[patient] was fine when they rolled him out of the OR”;
averting litigation—in case such as that described above, 99% of families would consult an attorney; number could be
reduced by half if care team would talk to family and honestly explain what happened (Kelly); speaker flabbergasted at
ability of families to understand and forgive outrageous medical errors; mostly based on having face-to-face dialogue and
being able to admit mistake (Caplan); know how to assemble team in your hospital; ensure policy exists; speaker’s institution
invites family to be part of review process and improvements (Warner); “saying ‘I’m sorry’ doesn’t mean ‘I’m
sorry I messed up’”; empathetic communication not admission of guilt (Pollara)
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Suggested Reading
Aitkenhead AR: Informing and consenting for anaesthesia. Best Pract Res Clin Anaesthesiol 20:507, 2006; Bhananker
SM et al: Injury and liability associated with monitored anesthesia care: a closed claims analysis. Anesthesiology
104:228, 2006; Cheney FW et al: Trends in anesthesia-related death and brain damage: A closed claims analysis. Anesthesiology
105:1081, 2006; Crosby E: Medical malpractice and anesthesiology: literature review and role of the expert
witness. Can J Anaesth 54:227, 2007; Jimenez N et al: An update on pediatric anesthesia liability: a closed claims analysis.
Anesth Analg 104:147, 2007; Kent CD et al: Awareness: practice, standards, and the law. Best Pract Res Clin Anaesthesiol
21:369, 2007; MacRae MG: Closed claims studies in anesthesia: a literature review and implications for
practice. AANA J 75:267, 2007; Mavroforou A et al: Malpractice issues in modern anaesthesiology. Eur J Anaesthesiol
24:903, 2007; Robbertze R et al: Closed claims review of anesthesia for procedures outside the operating room.
Curr Opin Anaesthesiol 19:436, 2006; Winslade W et al: To tell or not to tell: disclosing medical error. J Law Med
Ethics 34:813, 2006.
Educational Objectives
| The goal of this activity is to improve understanding of medical liability issues. After hearing and assimilating this
program, the clinician will be better able to:
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 | 1. Explain how experts evaluate standard of care.
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| 2. Review the role of informed consent in medical malpractice.
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| 3. Describe how malpractice attorneys evaluate liability and settle a claim.
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| 4. Analyze causation and burden of proof in medical malpractice and predict the outcome of a jury award exceeding
the malpractice insurance cap.
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| 5. Inform medical staff of essential steps to take before informing a family about an adverse outcome.
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Faculty Disclosure
In adherence to ACCME Standards for Commercial Support, Audio-Digest requires all faculty and planning committee members
to disclose relevant financial relationships within the past 12 months that might create any personal conflicts of interest. Any identified
conflicts were resolved to ensure that this educational activity promotes quality in health care and not a proprietary business
or commercial interest. For this program, the faculty and planning committee reported nothing to disclose.
Acknowledgements
Drs. Domino, Caplan, and Warner, and Mr. Kelly and Ms. Pollara spoke in San Francisco, CA, at the American Society of Anesthesiologists’
Annual Meeting, held October 13-17, 2007. The Audio-Digest Foundation thanks the speakers and the ASA for
their cooperation in the production of this program.
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