Malpractice Cases

Educational Objectives

The goal of this program is to improve perioperative practices to reduce risk for malpractice lawsuits. After hearing and assimilating this program, the clinician will be better able to:

1. Apply criteria for admission to the hospital of pediatric patients after tonsillectomy.

2. Elaborate on the 4 criteria for malpractice liability.

3. Recognize economic variables in malpractice litigation.

4. Manage upper airway obstruction in pediatric patients.

5. Adopt characteristics of physicians associated with lower risk for malpractice lawsuits.

Summary

Trends in malpractice: Jena et al (2011) found anesthesiologists rank in middle range of malpractice risk among specialties; majority of high malpractice claims against surgeons

Case example 1: boy aged 11 yr scheduled for tonsillectomy for obstructive sleep apnea (OSA); body mass index >99th percentile; sleep study finds apnea hypopnea index (AHI) 80; at speaker’s institution, child with similar history would be admitted to pediatric intensive care unit (PICU), placed on “add-on list” for tonsillectomy, and readmitted to PICU after surgery; this child scheduled for last case of the day at free-standing surgery center; cancellation of case would have been most appropriate management

Course of anesthesia: anesthesiologists perform case in usual manner; give intra-and postoperative opioids; on preoperative anesthetic history and physical, boxes for respiratory issues and snoring not checked; consultant’s note regarding sleep study included in medical record; patient discharged from postanesthesia care unit (PACU) after 1 hr with prescription for acetaminophen-hydrocodone; child found dead in bed that evening

Analysis: speaker recommends against advising any patient to take acetaminophen-hydrocodone on set schedule after tonsillectomy; when speaker contacted by defense team, he suggested case bordered on negligent homicide

Admission after tonsillectomy: guidelines from American Academy of Pediatrics recommend admission of high-risk patients after tonsillectomy; criteria include age <3 yr, severe OSA (AHI 10; defined by American Academy of Otolaryngology — Head and Neck Surgery as low 20s), any cardiac sequelae, failure to thrive, obesity, craniofacial anomalies, significant comorbidities, and sickle cell disease; in cases that meet criteria, speaker recommends against surgery in surgery center

Case example 2: child aged 2 yr presents for elective magnetic resonance imaging (MRI) for follow-up for retinoblastoma; scheduled for tonsillectomy 2 wk before for OSA, but surgery canceled because child was sick; patient receives propofol and ketamine intravenously for MRI with natural airway and nasal cannula; develops upper airway obstruction; ventilated with bag and mask; procedure continued with natural airway and propofol 50 μg/kg per min; patient starts to cough and develops desaturation 20 min into MRI; taken from MRI, but anesthesia team unable to ventilate or intubate patient; neuromuscular blocking agents never administered; patient eventually intubated, but significant brain damage present; analysis — speaker hired by plaintiff’s attorney; stated anesthesia team negligent in proceeding without artificial airway and failing to give neuromuscular blocking agent; case deemed failure to resuscitate and eventually settled

Settlements: almost all cases eventually settled; malpractice cases rarely go to court; attorneys do not like to risk loss in court; plaintiff’s attorneys invest large amounts of time and money; insurance companies do not desire to risk outrageous verdict; 80% to 90% of cases settled out of court; in 80% to 90% of cases that go to court, decision found in favor of defense

“Over-under” deal: if case goes to court, attorneys agree to have defendant pay some money even if jury acquits in return for cap on damages

Economics of malpractice: typical malpractice insurance policy “1-3” policy; covers $1 million per claim per year and ≤3 claims per year; cost for, eg, child with brain damage often considerably higher; plaintiff’s attorneys do not typically seek physicians’ personal assets because appeals can last years and possibly overturn verdict; attempt to deal with hospitals with “deeper pockets”

Case example 2 (continued): attorneys attempt to bring hospital into case through MRI technician

Economics of malpractice (continued): settlements eventually reached through negotiation among all involved parties; physicians as a group ultimately pay through malpractice premiums; costs distributed throughout society

Case example 3

Precipitating events: child aged 3 yr aspirates pistachio at home; begins to cough and become cyanotic; parents live in remote area and call 911; emergency medical technicians (EMTs) reach home relatively quickly, make assessment, and transport child to nearby community hospital; emergency department (ED) physician reminds EMTs that hospital does not treat children; EMTs argue; child has visible upper airway obstruction and audible stridor (typically indicates obstruction above glottis or, at minimum, above cricoid); objects inhaled into lungs in children do not cause stridor (respiratory distress typically not present in children); anesthesiologist called and agrees to come to hospital; ear, nose, and throat (ENT) surgeon on call contacted but refuses to come to hospital because he is too far away and treating another patient; recommends transportation by helicopter to local children’s hospital (≈1 hr away); none of the physicians have any recent pediatric experience, and the hospital does not have pediatric equipment; ED physician calls every ENT surgeon on staff, and all refuse to come to hospital; calls for transportation by helicopter; second-year pediatric resident physician at children’s hospital agrees to send helicopter but states that hospital’s policy requires secured airway before transport; resident physician does not feel qualified to deviate from policy; child tiring; oxygen saturation decreases

Further steps taken: ED physician prepares for rapid sequence intubation with etomidate and rocuronium; anesthesiologist arrives but provides little help; ED physician administers medications but is unable to intubate or ventilate patient; cardiopulmonary resuscitation performed; ED physician establishes emergency airway using adult central line kit, but too late; child dies; parents sue ENT surgeon for refusing to come to hospital

Duty: 1 of 4 criteria for malpractice; requires contractual obligation to care for patient; in case example 3, ENT surgeon’s on-call status created duty; confounding factors include fact that hospital did not treat children, ENT surgeon was busy with another patient, and ENT surgeon judged coming to hospital not in child’s best interests; anesthesiologists generally have broad duty to patients in hospital and operating room (OR) because of contractual arrangement with hospital or affiliation with surgeon; physicians in other specialties can legally refuse to care for a patient if no prior contractual obligation exists; can be found in violation of the law if they provide a reason for refusing care and the reason violates an antidiscrimination law

Negligence: second criterion for malpractice; characterized by breach of duty; ENT surgeon arguably breached his duty to child in ED, but he also had legal obligation to the other patient he was caring for

Harm: third criterion; patient in case example 3 harmed

Materiality: fourth criterion; also called causation; breach in case example arguably did not cause damage to patient

Further analysis: speaker hired by defense; argued ENT surgeon could not have helped if present; case settled; many factors contributed to child’s death (eg, child lived in rural area, child aged 3 yr should not be given pistachios, anesthesiologist lacked pediatric experience, hospital not equipped to treat children)

Management of upper airway obstruction: majority of important decisions concern whether or not to use sedatives or paralytic agents or to intubate, and whether or not spontaneous ventilation can be maintained; insertion of supraglottic airway consideration; anesthetized intubation can be performed if physician confident that spontaneous ventilation can be maintained; otherwise, intubation with patient awake or with sedation necessary; many viable options for providing anesthesia while maintaining spontaneous ventilation available; ability to provide positive-pressure ventilation allows many options (consider other options if not possible); some physicians do not use positive-pressure ventilation and instead use topical anesthetic agent as laryngoscope advanced

Unanticipated difficult ventilation: typically due to mechanical obstruction; possible maneuvers include adjustment of face mask, addition of continuous positive airway pressure (CPAP), chin lift, jaw thrust, use of oral airway, and 2-handed technique; consider intubation; common scenario in neonates difficulty with ventilation while intubation still possible; insertion of supraglottic airway among most commonly performed maneuvers; administer succinylcholine if laryngospasm suspected; turning patient lateral or prone can be effective if mediastinal mass present; measures of last resort include placing needle through cricothyroid membrane and ventilating through 14-G intravenous catheter using tube adaptor from 3.0 or 3.5 endotracheal tube attached to Luer lock or through barrel of 10-mL syringe

Case example 4: older man undergoes uneventful coronary artery bypass grafting; extubated later same day in intensive care unit (ICU); develops respiratory distress and fever overnight; next morning, patient’s temperature 105°F, and generalized rigidity present; anesthesia department called for reintubation; cardiac ICU located next to cardiac OR; pediatric cardiac anesthesiologist leaves cardiac OR, intubates patient with succinylcholine, and returns to OR; patient’s temperature rises to 108°F, and rigidity generalized; patient dies later that day from disseminated intravascular coagulation; cardiac surgeon writes in chart that patient died from malignant hyperthermia (MH); speaker hired by defense; family sues anesthesiologist

Analysis: in this type of case, speaker first tries to determine whether diagnosis of MH accurate (surgeons commonly blame anesthesiologists in cases of fatal postoperative surgical infections or sepsis with high fever); in this case, nothing in medical record suggested increased levels of carbon dioxide or hypermetabolism during surgery; intraoperative signs or symptoms of MH lacking

Postoperative MH: textbooks claim postoperative MH can occur day after surgery; however, Litman et al (2008) analyzed North American Malignant Hyperthermia Registry and identified 11 cases of postoperative MH; all occurred within 10 min of end of anesthesia, and signs began intraoperatively but were missed in several cases; reports of delayed postoperative MH likely derived from cases of postoperative rhabdomyolysis after patient with underlying myopathy received succinylcholine; delayed postoperative MH does not occur; fever after surgery or emergency intubation among most common types of calls received by MH hotline

Analysis (continued): patient was taking citalopram preoperatively; cardiac surgeon used methylene blue during procedure; result serotonin syndrome; serotonin syndrome — symptoms similar to those of MH; features include hyperthermia, rigidity, and agitation; unlike MH, serotonin syndrome includes ocular clonus; treated with cyproheptadine; in 2011, US Food and Drug Administration issued warning about intraoperative use of methylene blue in patients who take selective serotonin reuptake inhibitors

Resolution: defendants asked judge for summary judgment (characterized by dismissal of case in face of clear facts); summary judgment rarely granted, but judge agreed in this case; case dismissed

Case example 5: girl aged 10 yr presents for ureteral reimplantation; essentially healthy; given ibuprofen within previous week; documented allergy to cefprozil (Cefzil); surgeon asks anesthesiologist to administer cefazolin during surgery; participants in OR remind surgeon of patient’s allergy; surgeon asks anesthesiologist to give test dose; anesthesiologist complies; test dose uneventful; remaining dose of cefazolin given; surgery uneventful; child presents to ED several days later with vomiting and creatinine level 8.3 mg/dL; admitted to hospital; kidney biopsy indicates acute allergic nephritis; kidney transplantation required; take-home message — test dose never appropriate except when testing epidural catheters

Case example 6: child aged 1 yr has laryngomalacia sufficiently severe to interfere with growth; supraglottoplasty performed (involves intubation); surgeon uses laser to make incisions on either side of epiglottis; movement improved; obstruction reduced; surgery performed in community hospital with strong pediatric experience and PICU; uneventful; child transferred to PICU from PACU at end of day with instructions from surgeon that no one other than surgeon may touch airway if problem arises; child experiences respiratory distress in PICU; oxygen and CPAP ineffective; child develops hypoxia; ventilation unsuccessful; anesthesia service called on urgent basis; newly hired pediatric anesthesiologist arrives in PICU to find child with saturation level in 20s and heart rate in 30s; PICU physicians attempt ventilation using bag and mask and perform chest compressions; anesthesiologist informed that ENT surgeon on his way, and instructions that no one other than surgeon may touch airway repeated; surgeon expected to arrive in ≈20 min; anesthesiologist chooses to wait for ENT; ENT arrives and intubates child relatively quickly; saturation level and heart rate increase

Analysis: most important problem was failure to establish clinical environment of collegiality and trust; speaker hired by ENT’s attorneys; patient’s family sued hospital, ENT, and anesthesiologist; ENT’s attorneys asked speaker to testify against anesthesiologist to create basis for insurance companies to split settlement; speaker complied because he felt anesthesiologist caused harm by failing to intubate

Risk types of physicians: high-risk physicians (those with high risk of being sued) account for >50% of all claims; primary factor lack of communication skills; failure in communication primary reason patients sue physicians (eg, unhappiness with personal relationship, perception that information being withheld after a complication); factors that increase risk for lawsuits include television advertisements and advice from health care workers; patients who do not sue perceive their physicians as communicative, caring, honest, and apologetic

Converting high-risk physicians to low-risk physicians: identifying and talking to physician about high-risk status effective in 50% of cases; apology programs not as effective as previously perceived and can increase rate of lawsuits; low-risk physicians provide immediate unbiased investigation and complete disclosure; disclose everything (do not try to protect family); show respect, empathy, and justice; apologize; and dismiss all medical bills

Anesthesiologist not affiliated with a hospital: situation complicated; check with employer to confirm coverage; examine certificate of malpractice coverage; ask malpractice insurance carrier about coverage; every insurance carrier should have attorneys to represent physicians being sued; whether having separate attorney effective depends on, eg, case and experience of attorney

Readings

Bookman K and Zane RD: Surviving a medical malpractice lawsuit. Emerg Med Clin North Am. 2020 May;38(2):539-48; Friedberg FJ: Surviving your deposition: a complete guide to help you prepare for your deposition. Schiffer Publishing; 2007; Jena AB et al: Malpractice risk according to physician specialty. N Engl J Med. 2011 Aug 18;365(7):629-36; Litman RS et al: Postoperative malignant hyperthermia: an analysis of cases from the North American Malignant Hyperthermia Registry. Anesthesiology. 2008 Nov;109(5):825-9; Metzner J et al: Closed claims’ analysis. Best Pract Res Clin Anaesthesiol. 2011 Jun;25(2):263-76; Prevatt HA et al: Anatomy of a malpractice lawsuit. Surg Innov. 2007 Mar;14(1):62-4; Yeh T et al: What we can learn from nonoperating room anesthesia registries: analysis of closed claims liability data. Curr Opin Anaesthesiol. 2020 Apr 18; Online ahead of print.

Disclosures

For this program, members of the faculty and planning committee reported nothing to disclose.

Acknowledgements

Dr. Litman was recorded at the 67th Annual Conclave and Convention, held September 15-18, 2019, in Philadelphia, PA, and presented by the American Osteopathic College of Anesthesiologists. For information about upcoming CME opportunities from the American Osteopathic College of Anesthesiologists, please visit aocaonline.org. The Audio Digest Foundation thanks Dr. Litman and the American Osteopathic College of Anesthesiologists for their cooperation in the production of this program.

CME/CE INFO

Accreditation:

The Audio- Digest Foundation is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians.

The Audio- Digest Foundation designates this enduring material for a maximum of 0 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

Audio Digest Foundation is accredited as a provider of continuing nursing education by the American Nurses Credentialing Center's (ANCC's) Commission on Accreditation. Audio Digest Foundation designates this activity for 0 CE contact hours.

Lecture ID:

AN622801

Expiration:

This CME course qualifies for AMA PRA Category 1 Credits™ for 3 years from the date of publication.

Instructions:

To earn CME/CE credit for this course, you must complete all the following components in the order recommended: (1) Review introductory course content, including Educational Objectives and Faculty/Planner Disclosures; (2) Listen to the audio program and review accompanying learning materials; (3) Complete posttest (only after completing Step 2) and earn a passing score of at least 80%. Taking the course Pretest and completing the Evaluation Survey are strongly recommended (but not mandatory) components of completing this CME/CE course.

Estimated time to complete this CME/CE course:

Approximately 2x the length of the recorded lecture to account for time spent studying accompanying learning materials and completing tests.