Medical-Legal Issues: Staying In the OR

Medical-Legal Issues: Staying In the OR
and Out of Court Lynn Fitzgerald Macksey RN MSN CRNA I’m here to discuss with you medical-legal issues in anesthesia….issues to keep in the back of your mind whenever taking care of patients in the perioperative period. I hope that this information will help keep you in the OR and out of the courtroom. Let’s get started….

Anesthesia…and Medical Malpractice
“For some must watch while some may sleep….” - Shakespeare Anesthesia practice is characterized by paradoxes. Anesthesia practice is a highly technical specialty that requires a large body of theoretical knowledge coupled with good judgment, and the need for hands-on skills for invasive techniques, and discerning decision-making skills. Yet, the art of anesthesia involves maintaining life while delivering potentially lethal medications to patients with a wide variety of complex, comorbid conditions - all while relying on basic common sense, intuition, and our own five senses. And despite careful preparation, the interconnected factors that make up anesthetic care can increase the risk of patient harm and potential malpractice - as physiology, people, and equipment come together in an unpredictable manner.

Anesthesia…and Medical Malpractice
How attorneys think about you, your practice, and how to win against you during lawsuits. **examples of cases **tips and techniques During this lecture we will talk about how attorneys think about you, your practice, and how to win against you during lawsuits. We’ll discuss multiple cases, their verdicts. We’ll also go over tips, techniques we all can use to prevent patient harm and avoid being named in a lawsuit. TIPS 3

MEDICAL MALPRACTICE CASES
Criminal Usually not for medical cases unless it’s a crime against society Punishment includes incarceration and punitive damages Civil Tort Law Medical malpractice / negligence Malpractice can occur with any profession and is any professional misconduct. ~~~~ MEDICAL MALPRACTICE is based on negligence theory of “improper care” causing patient harm. Most medical malpractice is tried in Civil courts but some cases, such as the Dr. Jack Kevorkian case, may be tried as a Criminal case. A Criminal case is considered a crime against society.

MEDICAL MALPRACTICE CASES
Civil Disputes Arise when plaintiffs (patients) believe they have been unfavorably affected by the actions of another, the defendant (CRNA)— and so seek judicial relief, that is, a courtroom judgment. Let’s start the legal process itself. If the verdict is in favor of the Plaintiff (patient), Defendants must pay money (damages).

“Captain of the Ship” Surgeon liable for any errors in the OR.
This, however, has changed. Each caregiver can now be named in a medical malpractice suit and is responsible for his/her own actions. At one time, under what is called the “captain-of-the-ship” doctrine, the surgeon was liable for any errors that occurred in the operating room. The rationale was that even though the surgeon wasn’t personally responsible for patient positioning on the OR table, he was in charge of the room and therefore was responsible for any act of negligence committed by someone acting under his direction. This has changed. Each caregiver is responsible for the care of the patient and can be named.

Elements of Negligence
Four Elements of Medical Malpractice Duty Breach of duty, i.e., negligence Causal connection Injuries/Damages Without all four of these, negligence cannot be proven. Any time an attorney investigates a claim of medical malpractice, these four elements of a medical malpractice case must be present and proven. IT MUST BE CLEAR THERE WAS A DUTY - a legal relationship of care must be established. IT MUST BE PROVEN THERE WAS A BREACH OF DUTY – an IMPROPER ACTION OR A FAILURE TO ACT IT MUST BE PROVEN THAT THERE WAS A CONNECTION BETWEEN THE NEGLIGENCE AND AN INJURY - THAT HARM WAS CAUSED. Without all four elements, negligence cannot be proven.

#1 Duty It is a relationship between the healthcare provider and the patient – when care has started or anytime a patient needs help. If there is no duty…there is no case. Duty is a relationship between the CRNA and the patient. Duty occurs when the health care provider accepts responsibility for the care and treatment of that patient and care has begun – a legal and contractual duty to the patient exists. But, duty is not just about being assigned a particular case in an operating room, duty can also occur if you see that any patient needs some type of help. It is a duty to exercise care or to act in a manner consistent with how other reasonable people or a prudent person would have acted in a similar situation. No duty, no case.

#2 Negligence – breach of duty
Negligence is the failure to do that which is consistent with good and acceptable practice… the “Standard of Care”. What is reasonable and prudent? Negligence is a breach of duty Action outside of Standard of Care. A duty to exercise care or to act in a manner consistent with how other reasonable people should act. How a prudent person would have exercised in a similar situation

Who decides negligence… or standard of care?
A qualified expert witness speaks to the standard of care. Opinions are expressed in degrees of likelihood. Who decides negligence or SofC? A qualified Expert Witness speaks to the SofC….the EW **Should have comparable education and experience to that of the defendant; and **Been practicing in similar circumstances at the time of the incident in question They will speak to the SofC at the time of the incident, not time of trial. An expert witness will be hired by each side. Opinions are expressed in degrees of likelihood…… no case is perfect, no case is black or white…but did the caregiver provide Standard of Care.

Negligence Negligence occurred if the plaintiff can prove the CRNAs care fell below the Standard of Care. The plaintiffs must then prove they were injured as a direct result of the CRNAs negligence….this is known as causation. Negligence occurs if the care is outside the Standard of Care. Once negligence has been shown…the plaintiff must prove negligence resulted in injury or harm…this is known as causation.

Causation is most significant element of the case!!!!
A causal connection must be established between the breach of duty and the injury or harm to the patient / plaintiff. Who determines causation? Expert witness: nurse, physician, pathologist, toxicologist, etc. Causation is most significant element of the case!!!! Causation …this is the bridge between negligence and harm. The expert witness not only testifies to Standard of Care, they will also establish causation…that the act or lack of action caused the harm. Causation is most significant element of the case!!!!

WHAT DID YOU DO TO PROTECT THE PATIENT?!
Causation In a anesthesia med-mal case, one of the experts jobs is to identify the role of each provider involved in the case. Including actions which may have contributed to adverse outcomes ~~ and actions which may have prevented or reduced injury. WHAT DID YOU DO TO PROTECT THE PATIENT?! The EW will look at all each provider involved in the case and the actions which could have caused the harm and what actions could have prevented harm. Some complications may be completely unpredictable, even with careful preanesthetic assessment and close monitoring during the anesthetic. AND THIS IS IMPORTANT! Other complications, such as aspiration of gastric contents, have some degree of preventability associated with them, which require certain actions from anesthesia providers Prosecuting attorneys will portray an anesthetized patients as ‘vulnerable as an infant’ – to be wholly protected – by anesthesia providers. IN COURT, YOU AND I WILL BE ASKED…WHAT DID YOU DO TO PROTECT THE PATIENT.

Causation Causation is the attorney’s most important element in any malpractice case. Causation …..is the attorneys most important element. Would the outcome have come out differently if the players had acted differently? Attorneys approach causation principles several different ways.

Causation Principles The forseeability issue: was it foreseeable that a particular act could cause harm or damage? The CRNA has a responsibility to foresee harm and eliminate risks. Ex: medication errors, nerve damage Was it foreseeable that a particular act could cause harm or damage? If a potassium bolus had been given over 1 hour instead of over 10 minutes …is it foreseeable that this would this have prevented the patient from going into cardiac arrest? I.e.: It is foreseeable that the patient may suffer nerve damage if the lower leg is pressing into a metal bar during surgery in the lithotomy position? While we may not be the person to physically position a patient’s legs in the lithotomy position, we are part of that patient’s team and must check every aspect of the patient’s position and point out the outer lower leg that is pressing into the metal bar. In Hodge v. Crafts-Farrow State Hospital, a patient with no know drug allergies suffered an anaphylactic reaction to Valium. The court ruled that no evidence existed showing the caregiver had foreseeability regarding an adverse reaction to the Valium.

Causation Principles “But For The” negligence issue: that is the injury that would not have occurred “but for a particular act”. The expert witness will attempt to explain that, if it hadn’t been for the conduct of the defendant, the patient would not have been injured. An injury would not have occurred BUT FOR THE PARTICULAR ACT Oxygen is delivered at 82% as bovie cauterization is used during a tonsillectomy and an airway fire occurs. But for the FiO2 at 82%, a fire would not have occurred. If the CRNA had communicated with the surgeon and knew the cauterization was about to begin…and decreased the FiO2 to 30%...is this Standard of Care? Would decreasing the FiO2 have prevented the fire? Is fire possible even with a low FiO2? If the FiO2 was 30% and a fire occurred, did the CRNA react in a prompt, efficient manner to put out the fire? IT’S NOT THAT BAD THINGS WILL NEVER HAPPEN, BUT WAS THE CARE-GIVEER ACTING WITHIN THE STANDARDS OF CARE, PREPARED FOR AN EMERGENCY, AND ACTED SWIFTLY WHEN THE CRISIS OCCURRED?

Causation Principles Causation is more difficult to prove than duty or breach of duty. Even though the patient may have an obvious injury, the cause of the injury may not be clear. This is where the defense focuses. The defense will suggest other causes for the injury, only one of which may have been the CRNA’s negligence. Causation is more difficult to prove than duty or breach of duty. Even though the patient may have an obvious injury, the cause of the injury may not be clear. It’s fairly easy to establish duty – a legal relationship between anesthetist and patient. It’s also fairly easy to define care that is within or outside the Standard of Care. But with causation, it must be proved that the action outside the Standard of Care caused the harm. This is where the defense focuses. The defense will suggest other causes for the injury, only one of which may have been the CRNA’s negligence. i.e.: a patient who comes in for an appendectomy and has severe pain in his right shoulder postoperatively. Eventually the shoulder muscles atrophy and the arm is paralyzed. Although the plaintiff could not prove who caused his injury, it was obvious the injury occurred in the operating room. The defense may try and prove the patient had a shoulder injury before coming to the operating room.

Causation Principles “The thing speaks for itself.”
Because causation can be so difficult to prove, the court allows plaintiffs to argue their case using the theory of res ipsa loquitur - “The thing speaks for itself.” #1: the injury must be of a type that would not ordinarily occur unless someone were negligent. #2: the defendant had exclusive control over whatever caused the plaintiff’s injury. #3: the injury could not have resulted from anything the plaintiff voluntarily did. Because causation can be so difficult to prove, the court allows plaintiffs to argue their case using the theory of res ipsa loquitur - “The thing speaks for itself.” Rule #1 : the injury must be of a type that would not ordinarily occur unless someone were negligent. Rule #1: Because shoulder pain is not a normal result of an appendectomy, it is obvious someone had been negligent. Rule #2: the defendant had exclusive control over whatever caused the plaintiff’s injury. Rule #2: is satisfied because the defendants had exclusive control over the operating room. Rule #3: the injury could not have resulted from anything the plaintiff voluntarily did. Rule #3 is satisfied because the patient was under the effects of anesthesia and could not have contributed to his injury. The plaintiff will bring in witnesses to testify the patient had full use of his arm before the surgery…and could not use his arm AFTER the surgery.

Causation Principles When res ipsa loquitur is used, the plaintiff is allowed to prove negligence by presenting only circumstantial evidence. This is opposite from most malpractice cases Res Ipsa loquitur principles allows the plaintiff to prove negligence by circumstantial evidence only. This is opposite from assuming “standard of care” was given until proven otherwise.

The plaintiff’s attorney has the burden of proof.
#4 Damages Plaintiffs must show they suffered some type of damage and because of the injury, they are entitled to monetary compensation. The plaintiff’s attorney has the burden of proof. The plaintiff has the burden of proof in showing their client suffered some kind of harm and that they are entitled to compensation. The plaintiff has burden of proof.

Damages claimed Financial Physical Mental
Medical costs, wage loss… Physical Disfigurement Loss of sensation: hearing, touch, smell… Loss of consortium Mental Pain, anguish, loss of joy… Includes past and future loss Damage or injury can be physical, mental, financial…such as: Loss of earning Loss of consortium Emotional pain and suffering Includes past and future loss

No case is black and white!
The bottom line? Does the attorney think they can win? Are all of the elements present? Is the patient credible? Are the damages sufficient to justify the expense and time required to prosecute a case? The bottom line in taking a case…… Does the attorney think they can win? Are all four elements present? Are the damages sufficient to justify the enormous expense and time required to prosecute a case? LOTS OF THINGS CAN GO WRONG OR BE CONSIDERED OUTSIDE THE STANDARDS OF CARE WHILE REVIEWING A PATIENT’S RECORD. BUT DID THAT ACTION OR NONACTION…CAUSE THE HARM?

Does the case have merit?
Most attorneys want to see a major physical injury or a loss of earning capacity before they take on a case. Look at the degree and extent of the injury. Has full recovery been made? What is the short and long term prognosis? Most attorneys want to see a major physical injury or a loss of earning capacity before they take on a case. Has the patient completely recovered? They will look to make sure that the potential verdicts will be sufficient to make it worthwhile.

Does the case have merit?
Is the outcome someone’s fault? Doesn’t always matter. Reviews of malpractice claims show that a financial award can be given even in the absence of negligent care. Baby born with poor outcome….may not have ANYTHING to do with poor care…but juries will award BIG MONEY to these families out of sympathy

Paramedics Risk of patient injury and potential lawsuits are not unique to anesthesia or nurse anesthetists... They can occur with any care-giver – in or out of the hospital setting. Paramedics are called to a college campus...people point out a passed out young man lying the bushes just feet away. The paramedics rouse the man who smells strongly of alcohol. According the Lt Chief who interviewed the paramedics, they stated that the guy was "just drunk". In that the paramedics were a couple of guys who also liked to party, they just dragged the unconscious patient back to his room and told his friends to "keep an eye on him". Because, the paramedics said, that's what they'd want somebody to do for them. No blood glucose level, no assessment for head injury. Is this a problem?

L&D Nurse Verdict: $9 million
Shortly after birth, an infant began to have difficulty breathing. The L&D nurse suctioned out the infant’s stomach and used positive pressure equipment to force oxygen into the lungs. But, instead of responding, the infant stopped breathing. The doctor present intubated the infant and tried to suction out the infant’s lungs. However, the suction tube the nurse handed him was too large for the endotracheal tube opening. With no other way to suction the infant’s lungs, the doctor removed the endotracheal tube, suctioned out the infant’s lungs, and then reinserted the tube. Once the infant was finally reintubated, the nurse couldn’t separate the face mask from the Ambu bag so that oxygen couldn’t be administered through the endotracheal tube. The baby became deeply cyanotic, forcing the doctor to simply blow air into the endotracheal tube in an effort to ventilate the infant. After about 10 minutes, the infant began to breathe spontaneously. However, the hypoxia suffered in the interim caused significant brain damage. At trial, the jury found the doctor innocent of malpractice, but found the nurse and the hospital guilty. It was brought out at trial that it was the nurse’s responsibility to make sure that the delivery room was adequately stocked and that the resuscitative equipment was functioning properly. Verdict: $9 million

Wrong Leg, Right? Verdict: $1 million
1995, instead of having his right foot removed, a Florida diabetic man had his left leg cut off below the knee . In the end, the proper foot also had to be amputated and the patient was left with no legs. A FL man was supposed to have his right foot removed but instead had his left leg below the knee amputated. In the end, the right foot also had to be removed. The proceeding legal action and eventual $1 million reward was a landmark case that established the high-profile nature of medical malpractice suits. Verdict Verdict: $1 million

Screwed, to Say the Least
When the surgeon could not find the necessary titanium rods required for patient back surgery, the surgeon removed the handle from a nearby screwdriver and used it instead. When the surgeon could not find the necessary titanium rods required for patient back surgery, the surgeon removed the handle from a nearby screwdriver and used it instead. Verdict Verdict: $5.6 million

Left Brain, Right Brain In 2007, it was discovered that doctors at a Rhode Island hospital had performed brain surgery on the wrong side of their patient’s brain… on three different patients. The second incident prompted the state to enforce greater oversight among their neurosurgeons. In 2007, it was discovered that surgeons in Rhode Island had performed brain surgery on the wrong side of the brain on three different patients. The second incident prompted the state to come in and enforce new rules. The third incident occurred three months after the state started enforcing those new rules. Verdict The third “wrong side of the brain” incident occurred three months later.

Dr. Feelbad An Ohio doctor was arrested in 1988 for experimenting in a series of reconstructive vaginal procedures on female patients without their consent. Upon his arrest, it was discovered that the doctor had been undertaking these procedures for 22 years, on over 2000 women. Verdict information unavailable An Ohio doctor was arrested after performing reconstructive vaginal procedures on over 2000 women for 22 years without their consent.

Not as Easy as Chopping Broccoli
In 1998, Saturday Night Live alum Dana Carvey, underwent a double bypass heart operation to address recurring heart problems. Postoperatively, the star found that his chest pains continued. It was in a follow-up appointment that Carvey realized that his surgeon had bypassed the wrong coronary artery. in 1998, Saturday Night Live comedian Dana Carvey underwent a double bypass heart surgery but continued to have chest pains postoperatively. In a follow-up appointment, it was discovered the surgeon had bypassed the wrong coronary artery. Carvey filed a $7.5 million lawsuit which was settled out of court. Verdict: $7.5 million

It all sounds so obvious…
We get to work, choke down a cup of coffee, go do a machine check and head out to get our patient. Do you have an ambu...a Bougie in your room? Is a Yankauer suction in the suction tubing? Is there a suction canister? Can we become complacent??

Production pressure Unwritten organizational factors in the anesthesia and surgery environment may exacerbate human error. “Production pressure” may cause adverse outcomes as cost constraints affect clinical practice. Include such things as - inadequate preoperative evaluation necessary monitors not being used. Unwritten organizational factors in the anesthesia and surgery environment may exacerbate human error. Production pressure” may cause adverse outcomes. How many of us feel rushed to wake a patient up… turn the room over….the surgeon has left the room and he is ready for his next case!!!!…we need to move the cases along!!!!….Have you seen the patient in preop yet? Time factors involved in production pressure include such things as inadequate preoperative evaluation and necessary monitors not being used. In an effort to hurry things along, do we cut corners? How many of us do not place a temperature probe on quick cases even with succinylcholine or volatile agents are given…i.e. myringotomy tubes? Multifactorial issues causing production pressure, the bottom line falls with the individual caregiver. If you’re not prepared or too rushed to make sure the preop assessment is complete, etc. and something happens to the patient, you’re responsible.

Are you adequately prepared?
In a 1991 case, an attending MDA and an anesthesiology resident were found to have failed to have a sufficiently small endotracheal tube on hand during hip surgery on a 5-month old child. Unsuccessful intubation attempts were alleged to have continued for an inordinately long period. The child suffered severe hypoxia causing a persistent vegetative state. Verdict: $9 million A 5-month old child suffered severe hypoxia causing a persistent vegetative state when an anesthesiologist and resident did not have a small enough endotracheal tube. Intubation attempt were alleged to have continued for a very long period… verdict…

Production pressure Legal verdicts increasingly address “premature extubation” as an important plaintiff’s allegation in cases where postextubation respiratory compromise results in traumatic reintubation, awareness, or hypoxemia. Recent premature extubation verdicts in Michigan and Virginia have ranged form $450,000 to $700,000. Legal verdicts increasingly address “premature extubation” as an important plaintiff’s allegation. Is Premature extubation….an aspect of production pressure? Huge amounts of money are being awarded to patients in which premature extubation has been found to be a factor.

Production pressure How can we meet production expectations while minimizing patient safety and professional liability risks - ** Maintaining safe practice guidelines. Rushed anesthetists, nurses, and surgeons can lead to a failure to communicate vital information and may directly or indirectly lead to an adverse event. There are a variety of strategies individual providers can use to meet production expectations while minimizing patient safety and professional liability risks - No matter where you are giving anesthesia, make sure you are always prepared for worst case scenarios. Make sure you communicate with all members of the team. ** Increased communication between ALL providers involved in a patient’s care.

Production pressure? A 40-year-old male died of a cardiopulmonary arrest during a surgical biopsy procedure when the anesthetist performed a premature extubation of the patient. The plaintiff contended that the defendant hospital was negligent in failing to have a twitch monitor present during the procedure. Verdict: $2 million A 40 year old having a biopsy died, it is believed, because he was given paralytics and there was not a twitch monitor in the room or Train of Four assessment done. Verdict?

Production pressure? A case involving premature extubation that also alleged the intraoperative administration of excessive fluid, leading to severe facial edema resulted in multi-million dollar verdict on behalf of an 8-year-old child. The jury formed the opinion that the MDA should have known the extubation was not safe under those circumstances. The family of an 8-year-old boy received a multi-million dollar verdict when it was found that the child was prematurely extubated after receiving excessive IV fluid that resulted in severe facial edema. The jury felt that the MDA should have known the extubation was not safe under those circumstances.

Fast-tracking A set of anesthesia techniques aimed at speeding recovery from anesthesia and improving outcomes, with the overall goal of reducing health costs. Inappropriate use of or overaggressive fast-tracking actually reduces the quality of patient care and increases liability. A set of anesthesia techniques to reduce healthcare costs. The clinical use of newer agents with rapid onset and fast emergence and the development of minimally invasive surgery are used to move patients efficiently through the surgery process. But each patient must be viewed as an individual and assessed carefully at each step in this process. If a patient is moved through too quickly, such as discharge from PACU to home when their pain is too great or they can’t stop vomiting…

If something can go wrong......
In general, 1 fatality occurs in every 500 medical encounters. An almost perfect medical process (99.9%) in an average community hospital would still result in accidents, such as: * 15 retained instruments, * 17 transfusion reactions, or * 1,000 medication delivery errors… annually!! Scary statistics In general, 1 fatality occurs in every 500 medical encounters. An almost perfect medical process (99.9%) in an average community hospital would still result in accidents, such as: * 15 retained instruments, * 17 transfusion reactions, or 1,000 medication delivery errors… annually!! MISTAKES HAPPEN in every department in every specialty…no matter who is taking care of the patients. .

Anesthesia Malpractice Data
Closed Claims Data Closed Claims are medical malpractice claims related to significant anesthesia-related patient injuries and demand of payment made by injured parties or their representatives. this data is evaluated in-depth to determine relationships between treatment, injuries sustained, and the basis of lawsuits. HOW DO WE KNOW WHAT MATTERS…WHO GETS SUED FOR WHAT????? Closed Claim Analysis contains previously identified anesthesia incidents that offer a CONCENTRATED DATA SOURCE OF EVENTS, possible causes, and outcomes. What was the treatment, injury sustained, and why was a lawsuit brought to bear? .

Closed Claim Data 1985 ASA started the Closed Claim Project 2001
the AANA published their findings regarding CRNAs involved in closed claims. Closed Claims Data is an in-depth study to determine relationships between treatment, injury sustained, and bases of lawsuit. In 1985 the ASA started the Closed Claim Project In 2001, the AANA published their findings regarding CRNAs involved in closed claims. Findings parallel the ASA data very closely. Includes cases from 35 insurance companies. This database now has 8,000 cases (spanning from 1976 to 2006) 350 cases collected annually.

Closed Claim data This data has led to higher standards of care and mandatory monitoring. Closed Claim data has led to higher standards of care and mandatory monitoring.

Closed Claim Data Using this information can help to
improve clinical practice evaluate new therapies anticipate problems In 1985, when the ASA started to look at these cases, they went back to cases starting in 1976. And while Retrospective closed claim data cannot be used to test hypotheses and no cause and effect conclusions can be gleaned from it - GOOD JUDGMENT INDICATES THE USEFULNESS of this data…. We can use this information to improve clinical practice evaluate new therapies, and anticipate problems.

Closed Claim Data Medical malpractice is not only based on medical malpractice or negligence, but other issues such as - lack of informed consent, treatment beyond scope of consent, assault and battery, and abandonment. Medical malpractice is not only based on malpractice or negligence, but other issues such as - lack of informed consent, treatment beyond scope of consent, assault and battery, and abandonment. What is your surgical department policy regarding Do Not Resuscitate orders and policies regarding rescinding such an order. What if the patient has a DNR and you do CPR during the perioperative period? You can be sued in a civil suit for battery if you touch or treat a patient without their consent.

Closed Claim Data Overall injury rate in US hospitals ~4%
1 in 8 injured patients file claims The #1 type of patient to sue: * healthy adults * undergoing routine elective surgery * females > males * 50% of claims involve obese patients Overall injury rate is ~4% of all patients Claims data is not overall incidents; 1 in 8 probably represent the tip of the iceberg….the most serious injuries This data helps us to recognize the procedures and injuries most likely to lead to malpractice lawsuits. Closed Claim data tells us the most common types of lawsuits come from…healthy adults, usually women, who undergo routine elective surgery….oh, and 50% of claims involve obese patients MOST RISK ARISES FROM EVERYDAY ROUTINE CARE. Medicine is risky!!!!

$34 to $36 million Closed Claim Data
Closed Claim Data tells us that lawsuit verdicts can range between $34 to $32 million That Dental injury is the most common anesthesia-related injury. And The most serious outcomes are associated with airway management. $34 to $36 million

Closed Claim Data – top 3 reasons lawsuits are filed
death #2 lawsuit: (19%) peripheral nerve damage #3 lawsuit: (9%) brain damage Closed Claim Data gives us the top Reasons for lawsuits #1 is because a patient has died, #2 is from nerve damage and #3 is from brain damage. Often death and brain damage are lumped together with respiratory and cardiovascular events.

Other reasons suits are filed
Central Venous Catheter placement (16.5%) Low risk incidences (15%) Emotional damage, headache, pain during regional anesthesia and back pain after neuraxial anesthesia. Misuse or failure of equipment (10%) Burns (6%) Other reasons suits are filed CVP, low risk, equipment, burns 49

Other reasons suits are filed
Wrong drug dose (4%) Eye injury (3%) Recall / Awareness (2%) Wrong drug dose Eye injury Recall / Awareness In one study, of 19 cases of intraoperative awareness, 14 involved inadvertent administration of a muscle relaxant to an awake patient; either succinylcholine or vecuronium. A patient who received vecuronium instead of cefazolin developed post-traumatic stress disorder as a result of being paralyzed while awake during surgery. 50

Death or Brain damage Death or brain damage was precipitated by
respiratory events (45%) and cardiovascular events (25%) Remember that the top #1 and #3 reasons law suits are filed are death and brain damage… These outcomes were precipitated by respiratory and cardiovascular events. Let’s talk about some not so famous cases

Undisclosed settlement in child’s death
A 6-year-old child received general anesthesia for a dental restoration procedure. His only history was mild asthma. After extubation, the child’s oxygen saturation dropped quickly; he became diaphoretic and lethargic. CRNA had the circulator get a fan to blow over the child to cool him off. The child coded. The child’s autopsy showed hemorrhagic changes to the lungs with no heart abnormality. Experts concluded the child had a unrecognized laryngospasm. Verdict: case still in review A 6 year old having general anesthesia for a dental procedure, his only history was mild asthma. After extubation, the child’s oxygen saturation dropped quickly; he became diaphoretic and lethargic. CRNA had the circulator get a fan to blow over the child to cool him off. The child coded. The child’s autopsy showed hemorrhagic changes to the lungs with no heart abnormality. Experts concluded the child had a unrecognized laryngospasm. Verdict? case still in review J. Hill, Virginia; 2010 52

Verdict Against CRNA for anoxic brain injury
20 year old female undergoing MAC sedation for cervical surgery in an ambulatory surgery center. CRNA administered deep sedation causing respiratory and cardiac arrest resulting in anoxic brain injury. The patient had sickle-cell disease which was not gleaned from preoperative interview. Patient had also taken pain medication the morning of surgery which was not known to the CRNA. Verdict: $851,000 20 year old female undergoing MAC sedation for cervical surgery in an ambulatory surgery center. CRNA administered deep sedation causing respiratory and cardiac arrest resulting in anoxic brain injury. The patient had sickle-cell disease which was not gleaned from preoperative interview. Patient had also taken pain medication the morning of surgery which was not known to the CRNA. Verdict? 53

Respiratory Events Adverse outcomes associated with respiratory events are the single largest class of serious injury in the ASA Closed Claims Study. Adverse outcomes associated with respiratory events are the single largest class of serious injury claims in the ASA Closed Claim Study. Remember that death or brain death was precipitated by respiratory events 45% of the time.

Respiratory Events Two-thirds of adverse respiratory events are due to: inadequate ventilation (38%), esophageal intubation (18%), and difficult tracheal intubation (17%) Inadequate ventilation was characterized by the highest proportion of cases in which care was considered substandard (90%). 2/3rds of adverse respiratory events are due to inadequate ventilation, esophageal intubation, and difficult tracheal intubation but 90% of the (38%) of inadequate ventilation events - the care was considered substandard. The median cost of settlement or jury award was $200,000 in respiratory events.

Inadequate ventilation
A 41-year-old female having outpatient surgery for carpal tunnel syndrome died after she suffered an acute hypoxic and hypotensive episode during sedation anesthesia. The defendants denied negligence and contended that being a smoker was the proximate cause of decedent's death. Verdict Award: $0 A young patient having an outpatient carpal tunnel release died after suffering an acute hypoxic and hypotensive episode during sedation anesthesia. The defendants contended that being a smoker was what caused the patient’s death. Verdict? BARNA, ESTATE OF v. HACKENSACKTOWN COMMUNITY HOSPITAL; BODNER, M.D.; MURPHY, M.D.; ET. AL

Improper intubation Wrongful death to decedent who died after being comatose for 3 years. Anesthesiologist unable to properly intubate decedent during toe amputation surgery which resulted in lack of oxygen, cardiac arrest and subsequent comatose condition. Verdict: $1,742,000 A patient having a toe amputation became comatose, dying three years later, after the anesthesiologist was unable to intubate him. Verdict? JOHNSON, v. P.A.S.

Morbidly obese 72-year-old male for Afib ablation
Extubated at end of case, tongue noted to be swollen, sats 89% on arrival to PACU. Facemask on 10 liter flow. coughing up bloody secretions, right neck and tongue grossly swollen. Sats dropping, multiple physicians called and consulted. 1425 – Pt now unable to speak, sats 82% - to OR for emergency trach. Multiple attempts at intubation; (same) MDA tried multiple times for cricothyrotomy. General surgeon in another OR and unaware of this patient. General surgeon pulled out of another surgery and emergency trach done. Sats between 20-70% for 24 minutes. Postoperatively, patient is unresponsive to all stimuli and dies several days later. Verdict: case still in review This patient was on Coumadin and heparin drip. Despite receiving 2 units of FFP the morning of the procedure, Pre-procedure coags: PT 18, INR 1.7, PTT Surgeon and anesthesia team are aware of values. Difficult airway suspected, Glidescope asked for but not used on intubation by MDA. Extubated at end of case, tongue noted to be swollen, sats 89% on arrival to PACU. Facemask on 10 liter flow. 1253 – (45 minutes later) coughing up bloody secretions, right neck and tongue grossly swollen. Sats dropping, multiple physicians called and consulted. 1425 –(two hours and 20 minutes after extubation) Pt now unable to speak, sats 82% - to OR for emergency trach. Multiple attempts at intubation; (same) MDA tried multiple times for cricothyrotomy. General surgeon in another OR and unaware of this patient. General surgeon pulled out of another surgery and emergency trach done. Sats between 20-70% for 24 minutes. Postoperatively, patient is unresponsive to all stimuli and dies several days later. Verdict: case still in review. DO THESE CASES HAVE MERIT? Lucas; 2011 58

Respiratory events Airway trauma Larynx (33%) Pharynx (19%)
Esophagus (18%) Trachea (14%) Temporomandibular joint [TMJ] (10%) airway trauma occurs primarily to the Larynx Pharynx Esophagus Trachea Temporomandibular joint [TMJ] The outcome of airway injury cases frequently rests on the documentation in the anesthesia record.

Airway trauma In an Oregon case, a woman with prior TMJ problems underwent general endotracheal anesthesia for tonsillectomy. Postoperatively, she developed disability associated with the TMJ – she claimed she was not told of risks of endotracheal intubation in light of her condition. Settlement of $350,000 Lonnie Smith Sexton v. Kaiser Foundation Hospitals, Oregon; 1993

Airway trauma A 40-year-old female suffered perforation of the upper airway, resulting in swallowing problems, during an endotracheal intubation. She later developed a mediastinal abscess. The defendant maintained the plaintiff's swallowing problems were psychological, unrelated to intubation, that appropriate equipment was used, and that possibility of a perforation is a known risk of the procedure. The plaintiff alleged the defendant made several unsuccessful intubation attempts using excessive force because of improper equipment. A 40 year old suffered perforation of the upper way during endotracheal intubation, later developing a mediastinal abscess. The plaintiff alleged that the defendant negligently performed the intubation and made several unsuccessful attempts and that because of the improper equipment used during the procedure, excessive force was used in the attempts. The defendant maintained that the plaintiff's swallowing problems were psychological and unrelated to intubation, that appropriate equipment was used, and the possibility of a perforation is a known risk of the procedure. VERDICT? Verdict: $0 UECK v. BAIDYA, M.D.

Respiratory events Aspiration
Aspiration occurs primarily during induction but can also occur anytime intraoperatively, postoperatively, and during all types of anesthesia; i.e.: regional or sedation anesthesia. Large percentage of these patients have associated brain damage and/or death. Aspiration pneumonia generally occurs during induction but can also occur anytime perioperatively, and during regional or sedation anesthesia. A large percentage of these patients have associated brain damage and/or death.

Aspiration A sixty-four year-old woman required general anesthesia for incarcerated ventral hernia. She aspirated gastric contents at induction and died one month later. The plaintiff alleged that the CRNA failed to take extra precautions for the patient’s conditions (obesity, symptoms of bowel obstruction, narcotic medication) which all increased the risk of aspiration No mention of cricoid pressure in this case. Verdict: $210,000 No mention of cricoid pressure being used is a part of this case or its verdict. In BB v. BW, CRNA, Kanabec County, Minnesota; 1994

Aspiration In another case of a patient who aspirated stomach acids during induction of anesthesia and died. The blame was on the anesthesiologist who did not apply cricoid pressure during induction of anesthesia, despite a history of gastric reflux and obesity. This case was decided based on cricoid pressure. Verdict: $966,000 In this case cricoid pressure not being applied was the issue of the case. Verdict… Luellen Makeny v. Parisian M.D.

Respiratory events Difficult airway management during perioperative period occurs Induction 67% Surgery 15% Extubation 12% Recovery 6% Note that the time of induction is the most dangerous regarding airway management. Remember the obstruction, laryngospasm, and aspiration? Do you have all possible sized ETTs and blades ready for use?

Respiratory events During surgery a 30-year-old female died from cerebral anoxia after undergoing a cesarean section and elective tubal ligation. Surgeon noticed dark red blood; patient had an unrecognized right mainstem intubation. Verdict: $837,600 During a cesarean section for a young woman, the surgeon noted to the anesthesiologist that the patient’s blood was very dark. Soon after this comment was made, the patient's heart rate and blood pressure dropped and resuscitative measures were attempted. The plaintiff contended that the defendant was negligent in monitoring the patient's condition and that he was negligent in placing the endotracheal tube in the right main stem bronchus which resulted in improper ventilation. Verdict?…. FOSTER, ESTATE OF v. CHOI, M.D.

Respiratory events In a 2008 case, an 11-month-old infant undergoing surgery to remove a superfluous digit experienced profound hypoxic encephalopathy. The episode occurred during induction after LMA insertion but the MDA could not ventilate. Verdict: $2 million The anesthesiologist had inserted an LMA but was unable to ventilate. Whether the airway device was malpositioned or whether the child developed a LARYNGOSPASM remains unclear. Verdict…. The case settled at the start of depositions for $2 million.

Respiratory events Difficult airway algorithm – do you know it?
If you’ve inserted an LMA and cannot ventilate the patient… WHAT IS THE NEXT STEP IN THE DIFFICULT AIRWAY ALGORITHM.

Respiratory events Verdict: $2.2 million
In 2002, the family of a 61-year-old woman who died sued the anesthesiologist. The woman had been extubated following a hysterectomy, requiring an emergent tracheotomy, which was subsequently dislodged in the ICU causing hypoxia, cardiac arrest, and death. Verdict: $2.2 million That all doesn’t sound so bad…why the huge verdict? Why?…see next slide

Respiratory events Difficult original intubation (4 attempts) with swelling of throat Trendelenburg position for 7 hours Known laryngeal polyps Morbidly obese patient with a large neck The legal issue of premature extubation likely will increase as more elective cases are performed using ROBOTIC SURGERY that requires extreme Trendelenburg positioning, often resulting in severe facial edema. CRNAs will need to realize that extubation in such cases may not be accomplished safely until the facial edema resolves, necessitating postoperative admission to the ICU until intraoperative fluid shifts dissipate.

Death 87% Respiratory events Death 46%
Difficult Airway intraoperatively: Death 46% Difficult Airway outside the OR Death 87% death in and out of OR from respiratory events Legal vulnerability comes from No documented airway assessment Difficult airway not anticipated

Respiratory events All adverse respiratory events in PACU are found to be preventable with the use of continuous pulse oximetry. all PACU events found to be preventable END FIRST HOUR HERE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Are you adequately prepared?
Remember this case? An attending and a resident were found guilty and had to pay $9 million dollars for failing to have a sufficiently small ETT on hand for a 5-month old who now is in a persistent vegetative state. Remember the case of the five month old who suffered severe hypoxia causing a persistent vegetative state when an anesthesiologist and resident did not have a small enough endotracheal tube. This one tube….vs…these choices…would YOU RATHER HAVE MULTIPLE CHOICES? This is for a child having a little extra finger removed.

Anesthesia Equipment & Monitors
TIPS: All emergency equipment ready… whether giving GETA, regional, neuraxial, sedation or out-of-department procedures. ALWAYS!!!! Suction on and ready, Bougie, ambu available, oral airways, blades and handles, OETT ready to go. Preformulated reintubation plan. Be ready and prepared no matter what Even if called out of the OR for elective cardioversion, have all emergency equipment, have a plan if it all hits the fan.

Anesthesia monitors & alarms
A 44-yr old female having left ankle surgery. She had been disconnected from the ventilator to turn from the supine to the prone position. The circuit was then reconnected and the vent was turned on BUT the ventilator did not start and alarms had been turned off. The patient suffered anoxic encephalopathy and permanent brain damage after being apneic for ~ 8 minutes. Verdict: $12 million # of monitors has mushroomed but the number of alarms has expanded with them. A 44-yr old female having left ankle surgery. She had been disconnected from the ventilator to turn from the supine to the prone position. The circuit was then reconnected and the vent was turned on BUT the ventilator did not start and alarms had been turned off. The patient suffered anoxic encephalopathy and permanent brain damage after being apneic for ~ 8 minutes. Verdict? Settlement: $12 Million Case facts L.D. is a 44-year-old female who went into the hospital to be treated for left ankle pain. At approximately 11:45 a.m., during an elective biopsy procedure, the patient was turned from the supine position to the prone position. She became hypoxic and her heart beat slowed to a bradycardic level with no pulse. The anesthesiologist, Dr. Rashidi Gani Loya, noticed the patient was turning blue. This is a late sign of hypoxia. She had the patient flipped back to the supine position and started ambu bagging her. The orthopedic doctor started chest compressions on the patient. He then started to perform manual ventilation with the ambu bag as well as chest compressions. Unfortunately, the patient had gone so long without oxygen she had sustained anoxic encephalopathy and permanent brain damage. The Plaintiff intended on proving that from the time L.D. was flipped to the supine position until the manual ventilation by ambu bag along with the chest compressions, L.D. was without oxygen, in whole or in part for approximately eight minutes which led to her brain damage. During discovery Plaintiff learned that the ventilator alarms on the anesthesia equipment did not sound, possibly due to a problem with the automatic ventilator switch which did not automatically restart the ventilator and alarms upon activation.

TIPS: Monitors and alarms are invaluable, particularly end-tidal carbon dioxide detectors, pulse oximeters, train-of-four monitors, oxygen analyzers, and ventilator disconnect alarms. Monitors and alarms are invaluable, particularly end-tidal carbon dioxide detectors, pulse oximeters, train-of-four monitors, oxygen analyzers, and ventilator disconnect alarms.

Misuse of equipment 3x more likely than equipment failure Mis/disconnects of breathing circuit largest contributor to patient injury Equipment failure Equipment misuse is 3 x more likely than equipment failure. Mis/disconnects of the circuit are the largest contributor in equipment misuse.

TIPS: Reviewers judged that over half of the claims (53%) of equipment misuse or failure could have been prevented by pulse oximetry, capnography, or a combination of these two monitors. Constant vigilance Proper equipment check before using Tips… Claims associated with gas delivery equipment are infrequent but severe and continue to occur. Proper equipment check before use and Constant vigilance is imperative.

TIPS: Check all anesthesia equipment to confirm good operation at start of each day. Adhere to all institutional safety precautions to minimize the risk of injury. Technology has advanced sooooo much but it has brought its own hazards!! You should have a systematic approach to checking the machine.

Anesthetic Plan TIPS: Formulate a patient-specific anesthetic plan and discuss with the patient. Document plan discussion.

Informed Consent Informed Consent is problematic in 1% of closed claims Anesthetic plan and possible complications not explained Failed to discuss a change in anesthesia plan with the patient. Provider failed to honor a patient request i.e.: no medical student involved Informed consent was a problem in a very small number of lawsuits but the cause was most often that the patient was unaware of possible complications or a change in anesthetic plan or that a student was involved in the case when the patient had stated they did not want a student.

Informed Consent TIPS:
Discuss the anesthetic plan and make sure you understand what your patient expects regarding the anesthetic. Discuss and document Do Not Resuscitate orders. Do not go against patient wishes regarding students in the OR. Discuss the anesthetic plan or any possible change to the anesthetic plan with the patient and make sure they understand that difficulties can arise from anesthesia. Also, discuss and document DNR orders and DON’T go against patient wishes regarding students in the operating room.

Informed Consent TIPS:
Patients should understand that no anesthetic technique is risk-free. Protecting yourself comes down to DOCUMENTATION. Informed consent should be documented, patients should understand that no anesthetic is risk free. Document the plan! Document the conversation!

Preanesthetic Assessment
A cursory review of a patient’s history can lead to patient harm and medical malpractice. In one emergency case, a patient required emergency surgery for left hemothorax. The patient had several serious medical problems, including a very recent cardiopulmonary arrest. The CRNA only received an oral report preoperatively from the anesthesiologist. ….. The CRNA did not review the medical records thoroughly. Without full appreciation for the severity of the patient’s status, the anesthetic course included techniques and dosages that were inappropriate. Story about female with cervical rods and I didn’t check her neck extension

Remember the patient with sickle cell who had taken pain medicine that morning…. Would it have changed your anesthetic if you had known about the chronic disease and the preoperative opioid? What questions could you have asked to help glean this information from the patient? ????? What other health problems do you have? Do you have any other conditions that would be important for me to know about? Did you take any medications in the last 24 hours? Story about woman who denied cardiac history but in fact had been having chest pain, had been told she needed an aortic valve replacement but she had refused. Her aortic valve was 0.8 cm…..critical stenosis! She denied it all.

TIPS: A thorough preoperative assessment is mandatory and leads to appropriate planning to reduce the chance for difficulties during anesthesia care….you cannot reduce risk to zero but will minimize any catastrophe. Documentation of preanesthetic evaluation is essential. A thorough preoperative assessment AND MEDICAL RECORD REVIEW is mandatory and leads to appropriate planning to reduce the chance for difficulties during anesthesia care….you cannot reduce risk to zero but will minimize any catastrophe. Documentation of preanesthetic evaluation is essential.

TIPS: Preexisting Conditions Know what the condition of the patient is in when you begin care – has patient already experienced trauma? has a neuro deficit? teeth missing?... …anything that has not been documented… chart it! Know what the condition of the patient is in before you begin care – has patient already experienced trauma? has a neuro deficit? teeth missing?...HAS CARDIAC STUDIES? …anything that has not been documented… chart it! Knowing this may change your anesthetic plan!

TIPS: Complete and thorough assessment including - Medical and surgical history Previous anesthetics Current medications Cardiac status: METS score Respiratory/Pulmonary status etc…. A complete assessment can help you glean information the patient doesn’t know is important to tell you. METS metabolic equivalent – score to assess cardiac status, < 4 poor physical ability

Respiratory - perioperative
TIPS: Good preoperative airway assessment Have all emergency airway equipment available for any suspect airways…ambu, Bougie, oral airways, laryngeal mask airways. Be intimately familiar with Difficult Airway Algorhythm. Continuously monitor capnography and oxygen saturation. Alert, timely recognition of respiratory emergencies & action saves lives. Remember that- Two-thirds of adverse respiratory events are due to: inadequate ventilation (38%), esophageal intubation (18%), and difficult tracheal intubation (17%) If the patient is a difficult intubation and you have not addressed or charted the airway and a Mallampati score…get out your checkbook. Surgeons should be informed of a difficult intubation but patient who is going home should also be told what to look for. Patients should be also educated to alert future anesthesia caregivers about difficult airway. 89

Respiratory - intubation
TIPS: Make your first look your best look with intubation. Known difficult airway? Surgeon should be readily available to perform a surgical airway if needed. Make your first look your best look with intubation. Questionable airway? Have difficult airway cart, Glidescope, Bougie, ambu, and O2 tanks available. Difficult Airway Guidelines need to be applied throughout the perioperative period. Known difficult airway? Remember the man having the ablation, he was brought back to the OR emergently. The general surgeon didn’t even know anything was going on. Have a surgeon present in OR, ready to perform a surgical airway. 90

Respiratory - intubation
For any difficult or esophageal intubation, alert the surgeon and the patient to watch for – early signs (pneumothorax and subQ emphysema) late signs (mediastinitis or retropharyngeal abscess). Letter to patient? For any difficult or esophageal intubation, make sure you alert the surgeon AND THE PATIENT to watch for these signs…early…and late. Send a letter to patient? Chart this communication

Respiratory - monitoring
Before capnography- it took > 5 minutes to confirm correct placement of endotracheal tube. With capnography- confirmation occurs within seconds and death / brain damage from esophageal intubation ↓ from 11% to 3% of claims. Before capnography- it took > 5 minutes to confirm correct placement of endotracheal tube. With capnography- confirmation occurs within seconds and death / brain damage from esophageal intubation ↓ from 11% to 3% of claims. 92

TIPS: Use Capnography monitoring along with Pulse ox monitoring 93

One study demonstrates that 72% of negative respiratory outcomes could have been prevented by combined oximetry with capnography monitoring….so use both monitors whenever possible. Preventable injuries are 11x costlier in medical-malpractice cases. One study demonstrates that 72% of negative respiratory outcomes could have been prevented by combined oximetry with capnography monitoring. Preventable injuries are 11x costlier in medical-malpractice cases. 94

Aspiration of gastric contents
TIPS: In aspiration risk cases, analysis should focus on risk identification and reduction. Patients who are at extra risk for aspiration of gastric contents require special preparation with preoperative medication and choice of anesthetic techniques. i.e.: if patient is obviously distended…keep head of bed up until stomach can be drained. We often see patients we suspect may be at risk for aspiration…obese, diabetic, bowel issues….we need to position these patients with the HOB up, given them bicitra preop, DO NOT place an LMA! Chart the interventions “due to risk of aspiration”. 95

Aspiration of gastric contents
TIPS: Cricoid pressure has both bad press and good but better to do it. Any aspiration prevention techniques must be documented. The risk of aspiration may never be completely eliminated. Cricoid pressure has both good and bad press but it is better to do it but know that the risk of aspiration may never be completely eliminated. 96

Respiratory - extubation
TIPS: Make sure patient is not in Stage II depth of anesthesia, respiratory rhythm is regular, tidal volume adequate, able to lift head and/or following commands; 4/4 twitches on Train of Four monitor are present. Preformulated reintubation plan Make sure all the positive signs that the patient is ready for extubation are present but have a preformulated reintubation plan at the ready. Where is the laryngoscope handle and blade? Do you have a stylet ready? 97

Cardiovascular events
Cardiovascular events occurs most often during.… maintenance of general anesthesia > 50% due to blood loss or electrolyte mismanagement. Most often occur during general anesthesia with half caused by blood loss or electrolyte mismanagement.

Cardiovascular TIPS: All patients get pre-induction EKG – print out a strip, note ST values Patient’s history worrisome? Perioperatively, monitor ST segment changes, electrolytes, labs, ABGs… Keep up with blood losses Treat electrolyte imbalances Print off an EKG strip while you’re pre-oxygenating the patient… note normal ST segment values (done in Lead II and V). Have soooo many cases every day….did this patient have a first degree AV block before induction????? Obviously, keep up with blood losses and treat electrolyte imbalances. 99

Peripheral nerve damage
Ulnar (25%) Brachial plexus (19%) Lumbosacral nerve root (92%) Spinal cord (13%) Successful nerve damage lawsuits due to: undocumented padding (57%) undocumented positioning (55%) improper positioning (36%) EACH POSITION HAS ITS OWN SET OF CONCERNS – NERVE PALSIES, TRACTION, PRESSURE, DIRECT DAMAGE TO NERVE Ulnar nerve is #1 nerve injured, especially under general anesthesia. Successful lawsuits involving nerve damage are most often due to undocumented padding or positioning, or improper positioning.

Peripheral nerve damage
A 38-year-old female suffered a foot drop after undergoing a laparotomy. The plaintiff contended that the defendant was negligent for failing to properly pad the stirrups. The defendant contended that alternate padding could have posed a larger risk. Verdict: $400,000 GLASCOCK v. SIMPSON, M.D.

TIPS: Peripheral nerve damage
Meticulous positioning and padding in all patients. Supine position - document “bilateral shoulders < 90º; bilateral arms on padded arm boards; cervical spine in neutral position, etc.” Prone position - swimmers position with arms above head: “bilateral shoulders and elbows < 90º. Eyes and nose checked q15.” Remember, patient’s under anesthesia are considered as vulnerable as an infant…we must protect them in every way. Meticulous positioning and padding in all patients. Supine position - document “bilateral shoulders < 90º; bilateral arms on padded arm boards; cervical spine in neutral position, etc.” Prone position - swimmers position with arms above head: “bilateral shoulders and elbows < 90º. Eyes and nose checked q15.” 102

TIPS: Peripheral nerve damage
Assess and document – preexisting patient conditions and deficits positioning padding Assess and document any preexisting patient conditions and deficits…document positioning and padding! Patient can’t straighten arm normally??, indicate extra padding placed under lower arm so not hanging. We so often so all these things but in a court of law… if you don’t chart it, you didn’t do it. 103

Peripheral nerve blocks
A 72 year old man underwent a nerve block to his left leg. The patient claimed he suffered permanent nerve and musculature injury in his left leg. Patient was taking Coumadin for a prosthetic heart valve, The anesthesiologists did not determine the patient’s coagulation profile before attempting the block. The patient needed surgery for a hematoma. Both anesthesiologists denied the plaintiff's negligence claims; they stated they acted within the applicable standard of care at all times. This gentleman was on anticoagulants when he received a nerve block – he developed a hematoma and permanent nerve and muscular injuries. VERDICT? Verdict: $127,500 Robert Cormier v. Duane Dixon, M.D.; and Robert Steinberg, M.D.

TIPS: Peripheral nerve injury
Risks are associated with any nerve block. Nerve damage can occur no matter how perfect the block is placed or how well you position the patient…. …protecting yourself comes down to patient education and documentation! Risks are associated with any nerve block and nerve damage can occur no matter how perfect the block is placed or how well you position the patient …protecting yourself from a lawsuit comes down to patient education and documentation! Patient’s need to know what to expect and the risks involved. Chart what was covered in conversation…risks… 105

Peripheral nerve blocks
There is an increase in claims in patients that receive blocks, especially in anticoagulated patients. TIPS Assess and document preexisting nerve deficits and coagulation status before inserting peripheral nerve block. There has been an increase in claims from peripheral nerve blocks especially in anticoagulated patients. As with any nerve damage, assess and document preexisting nerve deficits. Make sure to check for coagulation status.

Drug errors Drug-related errors occur in 1 out of 5 doses hospital patients. Annual cost of drug-related errors was estimated to be $2.8 million for a 700-bed teaching hospital. There are often immediate and major physiologic effects associated with a drug administration errors. There are many deaths. Drug errors occur very often…1 out of 5 doses in hospitalized patient causing major physiologic effects and death associated with enormous financial cost.

Drug errors succinylcholine was involved in 35 cases, and
While a wide variety of drugs were involved in drug errors, two drugs in particular were most commonly involved. In one study - succinylcholine was involved in 35 cases, and epinephrine was involved in 17 cases and had deadliest outcomes While a wide variety of drugs are involved in errors, two drugs in particular were most commonly involved with medical malpractice claims. Succinylcholine was administered to five patients with a previous history of definite or probable pseudocholinesterase deficiency, resulting in prolonged neuromuscular blockade. Hyperkalemic cardiac arrest occurred in two paraplegic patients and a patient with Guillain-Barré syndrome who received succinylcholine. Succinylcholine infusions were involved in 14 of the 35 succinylcholine-related cases. Drug administration errors involving epinephrine were particularly dangerous, with death or major morbidity resulting in 11 of the 17 epinephrine-related cases. Six of the 17 cases involving epinephrine were caused by ampoule swaps where epinephrine ampoules were confused with ampoules of the intended drugs. (with ephedrine, pitocin, and hydralazine)

Drug errors - Drug substitution
During an elective hysterectomy on a 64 yo female, the CRNA believed the patient was low in blood volume and decided to hang a bag of Hespan. Instead of Hespan, a lidocaine drip was hung. The patient went into cardiac arrest and later died. Verdict for $1,560,700 During an elective hysterectomy, the patient’s blood pressure was low and the CRNA wanted to hang Hespan to help with blood volume. Instead of Hespan… Verdict… E.D., IND. & AS EXECUTOR OF ESTATE OF F.D., DECEASED v. UNITED STATES OF AMERICA

Drug errors TIPS: Bar coding of anesthesia-related drugs in the operating room has been designed for anesthesia. Whether these systems are effective in preventing drug administration errors is unknown at the current time. bar coding ….. IT MAY BE HELPFUL but we must always go back to basics. NEXT SLIDE

Wrong drug or wrong dose
TIPS: Don’t assume!!! Check each vial label as you remove from drawer. Label syringe with appropriate label. Be able to see the label as you draw up drug into syringe. Check syringe and label before giving drug to patient. Don’t assume…always check before, during, and after drawing up drugs and giving them. 111

Drug errors - Drug omission
A 53 yo female developed rapid breathing and tachycardia in PACU after surgery for a fractured elbow. No temperature was taken for two hours after surgery. When checked it was 103 degrees F. Dantrolene was discussed by anesthesiologists but never given. The defendants argued the decedent did not have malignant hyperthermia and it was not the cause for her death. Verdict: $367,360 Woman developed s/s similar to MH but a temperature was never taken. Dantrolene was discussed but not given. The defendants argued was not the cause of her death. VERDICT? This is one reason for the recent emphasis on temperature monitoring as a standard of care. Leal vs. (1) Freeman, M.D. (2) Latif, M.D. (3) Macklin, M.D.

Drug omission in MH case
TIPS: When a MH crisis arises, providers must focus on identification of the problem and rapid intervention. You must be aware the MH can occur during and 24 hours after at the end of anesthesia. Delays in diagnosis of MH greatly increases the chance of death. When a MH crisis arises, providers must focus on identification of the problem and rapid intervention. You must be aware the MH can occur during and 24 hours after at the end of anesthesia. Delays in diagnosis of MH greatly increases the chance of death.

Acute Pain Care - postoperatively
Interaction of sedatives, opioids, and intermittent monitoring of patient postoperatively greatly increases risk of adverse outcomes. 1/3 involved respiratory depression 1/3 involved death or brain damage 114

Postoperative pain care
A patient alleged that she suffered hypoxic brain damage, with cognitive deficits, when morphine was administered to her following knee surgery. Claimed that staff negligently administered an excessive amount of morphine and caused a lack of oxygen and brain damage. Verdict: $999,999 A female alleged that she suffered hypoxic brain damage, with cognitive deficits, when morphine was administered to her following knee surgery. Claimed that staff negligently administered an excessive amount of morphine and caused a lack of oxygen and brain damage. The plaintiff contended that the defendant failed to provide an adequate staff with the skill and knowledge necessary to administer her medications properly, and that the defendant failed to provide the proper standard of care. Verdict… PETERSON v. LARAMIE COUNTY MEMORIAL HOSPITAL D/B/A UNITED MEDICAL CENTER

Postoperative pain care
A 54-year-old patient recovering from reconstructive breast surgery suffered hypoxemia and permanent brain damage after overdosing on morphine through a patient-controlled analgesia pump. The patient was not on telemetry and was not considered to be at high risk for respiratory depression. Verdict: $1.7 million A 54-year-old patient recovering from reconstructive breast surgery suffered hypoxemia and permanent brain damage after overdosing on morphine through a patient-controlled analgesia pump. The patient was not on telemetry and was not considered to be at high risk for respiratory depression. Verdict?… The increasing availability of pulse oximetry has resulted in claims against hospitals for failure to monitor postoperative patients. Atkisson v. Miami Veterans Affairs Medical Center,

NonOperative Pain Management (NOPM) – peripheral blocks, neuraxial
Major negative outcomes in chronic pain management include nerve injury, paralysis, brain damage, death, meningitis, pneumothorax from – Inadequate follow-up Insufficient monitoring (i.e. continuous pulse oximeter) Major negative outcomes in chronic pain management include nerve injury, paralysis, brain damage, death, meningitis, pneumothorax from - Inadequate follow-up Insufficient monitoring (i.e. continuous pulse oximeter)

Acute & Chronic pain care
TIPS: Continuous oxygen monitoring for patient’s receiving PCA or epidural anesthesia. Intermittent but frequent neurologic monitoring. Have narcan readily available. Patients with OSA may require a higher level of monitoring…possibly treated with CPAP? Have both capnography and pulse ox monitors on high risk patients at all times! (all patients??) These tips should be followed when delivering pain medications or sedatives to a patient that is on a general floor. Stay aware that the use of pulse oximetry alone is widely known to be inadequate as an indicator of ventilation because desaturation occurs late, frequently as a preterminal event. Remember that when the sat is 90% the PaO2 is 60. MONITORING OF THE CAPNOGRAPHY WAVEFORM IS ALSO ESSENTIAL, as its absence can alert the anesthesia provider to apnea long before oxygen saturation falls.

Neuraxial Anesthesia Sympathetic blockade and cardiovascular events
54% of cardiac arrests after neuraxial anesthesia were thought to be undetected respiratory insufficiency and sympathetic blockade (profound hypotension). 54% of cardiac arrests after neuraxial anesthesia were thought to be undetected respiratory insufficiency and sympathetic blockade (profound hypotension).

Neuraxial – cauda equina
Plaintiff presented for cesarean, received a spinal, and allegedly developed severe hypotension resulting in a permanent and disabling injury to the cauda equina. Defendants' claimed that plaintiff's injuries were more consistent with childbirth than with medical malpractice. Last Demand: $2,500,000 Last Offer: None After receiving a spinal for cesarean section, a patient allegedly developed severe hypotension resulting in a permanent cauda equina injury. Plaintiff alleged that defendant anesthesiologist and CRNA negligently failed to detect and treat hypotension; and anesthesiologist negligently failed to properly administer and monitor epidural anesthesia, resulting in post-birth bowel and bladder problems. The defendants stated her injuries were related to childbirth (even though she the infant was born by cesarean). Verdict… C.K. v. COUNTY GENERAL HOSPITAL, MB, M.D., SJ, M.D. AND IH, M.D.

Neuraxial – neuro deficits
A woman received epidural analgesia postoperatively after total knee replacement. She contended that she continued to receive epidural medication for two and one-half days even though she suffered increasing neurological deficits in her legs and feet. Verdict: $5 million A woman complained of increasing inability to move her legs and feet for two and ½ days while an epidural pump was infusing local anesthetic. But isn’t that expected? Occurrence of side effects does not in itself indicate negligence; negligence is likely to occur when providers fail to monitor and react appropriately if such effects occur. Would it have been better if the epidural had been turned off and a neuro check had been done? Clearly, the jury expected this to have occurred. Verdict?…. Bothe, et al. v. DelaCruz et al., Lee County Illinois 1999

Neuraxial - paraplegia
A 62-year-old female alleged that she suffered a spinal nerve injury that resulted in total paraplegia after she received a spinal catheter after a vehicle accident. Verdict: $22 million Total paraplegia after a spinal catheter placed…but the patient had been in a motor vehicle accident. No documentation as to whether this patient had neuro deficit prespinal, or that it had been assessed? Verdict?… DVG, M.D.; K, M.D.; R, M.D.; W, M.D.; Southern XXXX Medical Center

Spinal vs. epidural - death
A 20-year-old woman in labor received epidural analgesia. She was found 20 minutes after an infusion pump for the epidural had been started. She was in cardiopulmonary arrest. Plaintiff contended that the anesthesiologist and CRNA failure to recognize that the medication was being given into the subarachnoid space rather than the epidural space and failed to properly monitor the mother’s vital signs. Verdict $2.3 million This young woman dies after, allegedly, the anesthesia caregivers failed to realize an epidural catheter had been incorrectly placed in thecal space and that local anesthesia was given into the spinal fluid via a pump. Verdict?… Britteny And Ariel Lingold, Minors, B/N/F And Natural Father, William Lingold, Jr. V. John Bowden, M.D. And Rockdale Anesthesia

Spinal vs. epidural - death
25 year old female was in labor with her second child. Defendant anesthesiologist administered an epidural at the patient’s request. For ~ 30 mins, the patient was awake and alert. The patient then went into cardiopulmonary arrest. Plaintiff alleged that defendant negligently administered the epidural in the spinal space instead of the epidural space. Last Demand: $2,000,000 Last Offer: $100,000 After receiving an epidural, this 25 year old female decedent was awake, alert, moving her arms and legs and conversing with people in the delivery room for approximately 30 minutes BEFORE she went into cardiopulmonary arrest. Plaintiff alleged that defendant negligently administered the epidural in the spinal space instead of the epidural space. Defendant contended that the decedent would have suffered immediate cardiac arrest had the needle been misplaced. VERDICT?....

Neuraxial anesthesia TIPS:
Patient is nauseous? – immediately check blood pressure, treat if hypotensive. Sympathetic blockade and cardiovascular event practice suggestions – Prophylactic atropine administration Use of epinephrine early in resuscitation Prevention of sympathetic blockade and CV collapse may be prevented or helped with these tips…prophylactic atropine and the use of epi early in resuscitation.

Severe hypotension can occur even with appropriate local anesthetic doses Constant vigilance and preparedness for emergency management of airway, breathing, and circulation is paramount This vigilance requires frequent monitoring of the anesthetic dermatome level as well as the patient’s vital signs and ability to communicate verbally Vigilance and preparedness to control airway, breathing, and circulation is important whenever neuraxial anesthesia is given.

Again, occurrence of side effects does not in itself indicate negligence; negligence is likely to occur when providers fail to monitor and react appropriately if such effects occur. Unintentional injection of the local anesthetic high into the subarachnoid apace creates a high spinal with cardiopulmonary arrest. Even injection into an epidural vein may also cause seizures and cardiorespiratory arrest from local anesthetic toxicity. Occurrence of side effects does not in itself indicate negligence; negligence is likely to occur when providers fail to monitor and react appropriately if such effects occur.

Burns Burns attributable to – IV bags or bottles (35%) Warmers (23%)
Cautery with fire (19%) Cautery without fire (12%) Airway lasers (2%) MRI at pulse oximetry site (2%) Defibrillator paddles ((1%) EKG leads (1%) surgeon provides heat source (cautery, laser); nurses provide fuel source (prep, drapes); 55% of cases involve a fuel source of alcohol or drapes (nursing) Our liability arises from control of oxygen (>30%) - anesthesia provides oxidizer (any FiO2 > 30% is considered enriched oxygen – oxygen and nitrous oxide ARE both oxidizers; act as accelerant for fires and greatly increases risk of combustion. Most burn claims result from operating room fires caused by surgeon's cautery or laser. All these claims involve the use of supplemental oxygen and 95% occurred during head, eye, face, or neck surgery.

Airway Fire The plaintiff alleged that the fire started when a Bovie ignited 100% oxygen that was being administered by a CRNA. The fire resulted in burns to patient’s throat and face. Verdict: $250,000 The plaintiff alleged that the fire started when a Bovie ignited 100% oxygen that was being administered by a CRNA. The fire resulted in burns to patient’s throat and face. At the time of the fire, the oxygen had just been increased to 100% by facemask from 31% by nasal cannula due to respiratory difficulty. Verdict?…. 129

Burns TIPS: Prevent burns by:
Arrange surgical drapes to avoid trapping high concentrations of oxygen; avoid nitrous oxide. Communication with surgeon is KEY when using laser or cautery during surgery FiO2 decreased as low as possible when either laser or cautery is used Do not use Bair Hugger tube without connecting to upper or lower body Bair blanket

Eye injury- Postoperative Visual Loss (POVL)
81% of POVL claims related to ischemic optic neuropathy and correlated with large blood losses, prolonged hypotension, prone positioning, and vaso-occlusive disease. 13% of POVL claims correlated with direct pressure on the eye globe, emboli and low retinal perfusion pressure. POVL claims are related to both ischemic optic neuropathy related to blood losses, prolonged hypotension, prone position, and vaso-occlusive disease. They are also related to direct pressure on the eye globe. It is interesting to note in one study that Patient movement during eye surgery led to blindness in all 21 cases – 16 during GETA and 5 cases during MAC anesthesia.

Eye injury TIPS: Maintain mean arterial pressures at > mm Hg especially for patient in prone or sitting positions. Maintain hemoglobin > 9.4 Keep neck in midline to prevent venous congestion in the head. Normothermia, euglycemia, and urinary output > 0.5 mL/kg/hr. Chart “eyes and nose check” along with vital signs on anesthesia record in any patient in prone position. tips…. Recent data has suggested that patient in the prone position with risk of POVL should have their hemoglobin maintained at > 9.4.

Central Venous Line TIPS:
Increase in CVP-related claims in last decade from both injury and death due to cardiac tamponade vascular injury. TIPS: Almost half of these claims deemed preventable by the - implementation of ultrasound, waveform to confirm cannulation of vein, interval or continuous waveform monitoring. Cardiac tamponade and vascular injury were sited as the reasons for increased claims related to insertion of CVP lines. Almost half of these claims deemed preventable by the - implementation of ultrasound, waveform to confirm cannulation of vein, interval or continuous waveform monitoring. Chart that these were implementations were used.

Peripheral IV Liability from peripheral catheters: 2% of database
Median payout $50,000 Most claims due to soft tissue injury from IV catheter (extravasation); strongest association occurred in setting of cardiac surgery; results from delayed recognition of IV catheter malfunction in tucked arm. While only a small portion of claims, liability from peripheral IV’s has a median payout of $50,000. Most claims are associated with patients who have undergone cardiac surgery and had their arms tucked.

Peripheral IV TIPS: Especially with caustic or vasoactive additives in solution…can cause tissue destruction. Certain drugs should only be given by central line. Questionable PIV?…taped securely, ability to check during surgery…don’t just force fluid through. Have multiple PIV when arms are tucked and can’t get to them during surgery. Tips,,, IF PIV is difficult to flush when arm is tucked and site unable to be checked, stop using line.

Awareness/Recall Substandard care judged in 42% of cases involving intraoperative awareness and due to: Failure to turn on agent vaporizer Vaporizer malfunction Failure to anesthetize sufficiently during induction Inadvertent paralysis of conscious patient Substandard care was found in almost half of all cases of intraoperative awareness due to ….. Failure to turn on vaporizer, vaporizer malfunction, not giving them enough drug during induction, or inadvertent paralysis of a conscious patient.

Awareness/Recall Recall claims occurred most often during general anesthesia given to - Women Opioids used Muscle relaxation used No volatile anesthetic used Recall claims occurred most often during general anesthesia given to - Women Opioids used Muscle relaxation used No volatile anesthetic used Awareness during general anesthesia is a frightening experience which may result in serious emotional injury and post-traumatic stress disorder. For patients who have experienced recall, allow patients to discuss their feelings fully and provide support.

“The most important “monitor” is the anesthesia provider.”
Awareness/Recall TIPS: Prevent awareness – Use BIS monitor, maintain between 40-60 Monitor for unexpected tachycardia and or hypertension Monitor volatile anesthetic levels in vaporizers Use BIS monitor, maintain between 40-60 Monitor for unexpected tachycardia and or hypertension Monitor volatile anesthetic levels in vaporizers The provider receives many pieces of information from instrumental monitors and his or her own observations, discards artifacts, makes analysis and judgments and takes appropriate actions. “The most important “monitor is the anesthesia provider.” “The most important “monitor” is the anesthesia provider.”

Fast-tracking TIPS: The medications and techniques used in fast-tracking must be part of a carefully planned program with close surveillance of patients and outcomes. We must assess the patient and how they have tolerated surgery and anesthesia. The medications and techniques used in fast-tracking must be part of a carefully planned program with close surveillance of patients and outcomes.

Important to remember…
Mistakes by humans are inevitable BUT they become either difficult to correct or permanent when not caught early. We must be prepared for something to go wrong – inspect your work at every step and frequently during care! Mistakes by humans are inevitable BUT they become either difficult to correct or permanent when not caught early. We must be prepared for something to go wrong – inspect your work at every step and frequently during care! Given the complexity of both patient comorbidity and surgical procedures, continued diligence is paramount!!

Worst Outcomes in CRNA database
Not Correlated Preop physical status Patient age Type of surgery Age of anesthesia provider Years of CRNA certification Correlated with outcomes Inappropriate care Lack of vigilance Preventable outcomes Airway incidents We may think that the ASA status or the age of the patient is more predictive in bad outcomes but what really correlated with bad outcomes was inappropriate care, lack of vigilance, airway incidents, preventable outcomes!!! CRNA lack of vigilance was a contributing factor in 79% of claims.

In defense of your care…
While unforeseen difficulties can occur, even with poor outcomes, the defense of the anesthesia provider may focus on the lack of forseeability and that appropriate crisis interventions were provided. While unforeseen difficulties can occur, even with poor outcomes, the defense of the anesthesia provider may focus on the lack of forseeability and that appropriate crisis interventions were provided. This is a scary fact! If a lawsuit is filed against you….you are named….it may be too costly to try and defend you and the lawyers and insurance company will decide to settle. IT DOESN’T MATTER IF YOU WERE GUILTY OR NOT? Your name will be on the books in a case that was settled. No one goes to work thinking “today is the day harm will come to my patient”…no one. The goal is to avoid being named in a law suit. LET’S WRAP THIS UP!

How to help avoid patient injury and being named in a lawsuit
We must improve identification of high-risk patients and recognize the insufficiency of intermittent monitoring, and move toward having continuous monitors on high-risk patient at all times. We must improve identification of high-risk patients and recognize the insufficiency of intermittent monitoring, and move toward having continuous monitors on high-risk patient at all times.

Aware and mindful check of anesthesia machine and all equipment before every case Have plenty of choices and sizes of endotracheal tubes, LMAs, laryngoscope blades, suction, emergency airway equipment (bougie’s, Glidescope, etc.) Check your ventilator and all equipment before every case and have plenty of supplies to intubate! Have plenty of choices and sizes of endotracheal tubes, LMAs, laryngoscope blades, suction, emergency airway equipment (bougie’s, Glidescope, etc.)

Be Prepared for Emergencies Basic emergency care and back-up plans are an integral part of anesthetic care. Be prepared for emergencies…have a back-up plan to your back-up plan.

Perform a thorough assessment of patient’s airway and Mallampati score. Ask if patient has had previous anesthetic and/or ever been told they have a “difficult airway”? Anticipate or known difficult airway? Where is difficult airway cart?….need an airway surgeon?....have Glidescope in room?....have extra anesthesia providers in the OR? Assess your patient’s airway thoroughly…no short-cuts here. If you even THINK you’re going to have a problem, have everything you need at the ready!

Address specific risks based on patient’s medical/surgical history. Obtain informed consent for the patient-specific planned anesthetic. Discuss common anesthetic risks and chart conversation. Address specific risks based on patient’s medical/surgical history. Obtain informed consent for the patient-specific planned anesthetic and chart conversation.

Check your syringe and drug vial before, during, and after drawing up a drug. Check labels before starting drug or drip. Consider patient’s history and allergies before starting drug or drip. Check your syringe and drug vial before, during, and after drawing up a drug. Check labels before starting drug or drip. Consider patient’s history and allergies before starting drug or drip. Giving a beta blocker….does patient have asthma?

Monitor the patient’s physiologic condition as appropriate for the anesthetic. Implement and adjust the anesthetic based on the patient’s physiologic response. Monitoring includes patient position. Watching patient is relegated to secondary importance by some people. Patients react differently to drugs, to the surgery itself…we must adjust our anesthetic on their response. Anesthesia is responsible for the positioning of the total patient…not just the arms, shoulders, and head (I.e. lithotomy position with legs in stirrups). The anesthetist’s vantage point from the head of the bed provides another angle to check for potential pressure points or stretch problems.. Should include protective aspects of positioning the patient.

Don’t just extubate a patient at the end of the case! Any question of fluid overload, assess the patients ability to breathe around the ETT. Don’t just mindlessly extubate a patient at the end of the case! Any question of fluid overload, assess the patients ability to breathe around the ETT. Disconnect ETT from circuit, deflate pilot balloon, put your finger over the end of the ETT, and listed for air moving in and out of mouth.

Of all pertinent information - show physiologic responses, adjustments that are made, and outcome from those interventions. Chart “who” knew “what”, and “when” they knew it. If the patient is hypotensive, show vasopressor given or write in head of bed lowered. Is this too much charting? Well, if the patient suffers a poor outcome….

If you do it? If you do it? Chart it!!! Knowing that specific surgical procedures and patient positioning, intubation, response to drugs, etc. have specific known difficulties or challenges with law-suit potential - Chart what you do for patient safety and good outcomes!!!

A huge truth! Good documentation supports your defense…
while poor documentation supports the plaintiff’s case. 153

Thank you very much! What questions do you have?

The End

Medical-Legal Issues: Staying In the OR

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Medical-Legal Issues: Staying In the OR

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