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Anesthesia practice: avoiding legal liability.

Like other medical procedures, anesthesia offers liability pitfalls, but adherence to standards makes the defense easier

The practice of anesthesia continues to be fraught with relentless allegations of medical negligence and multimillion-dollar jury verdicts against anesthesia practitioners. It appears, however, that the adoption by the American Society of Anesthesiologists of basic standards for perioperative monitoring has had a significantly beneficial effect on anesthesia practice. Moreover, the continued development of and increased use of sophisticated monitoring devices such as pulse oximetry and capnometry also have had similar salutary effects.(1) Nevertheless, the contingent fee system and lottery-mentality juries continue to increase the amounts of the "pot of gold" awards to patients allegedly injured as a result of anesthesia negligence.


In medical negligence cases, the plaintiff must prove three essential elements in order to establish liability. First and foremost, the plaintiff must prove negligence.

A. Negligence

1. Standard of Care

Negligence is a deviation from the requisite medical standard of care. Generally speaking, to establish negligence the plaintiff must present evidence that in the care and treatment rendered to the patient the defendant did something that an anesthetist of ordinary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing that an anesthetist of ordinary skill, care and diligence would have done under the same or similar circumstances. The phrase "under the same or similar circumstances" is extremely important. It is a subjective standard.

The adequacy and propriety of the actions of the anesthesiologist must be judged in the context of the specific facts and circumstances under which care is rendered. Each case has its own particular circumstances. Just as the various aspects of a patient's condition affect the medical care and treatment to be rendered, all aspects of that condition, the nature of the procedure, the availability and quality of equipment, etc. must be taken into consideration.

Another factor that might be considered is the particular locale where the procedure took place. Historically, according to what was known as the "locality rule," anesthesiologists met the standard of care if they practiced in the same manner as other anesthsiologists in that local community. While some courts still adhere to the locality rule, the great majority do not. In light of modern and sophisticated national and international communications, publications, instruction and testing, there is a national (if not international) standard of care, rather than a standard determined by the local community or region. Courts have held that, given human tolerance levels for anesthetics, there are certain minimum procedures required regardless of locality.(2) Nevertheless, communities have to be taken into account on occasion when considering particularly sophisticated equipment, tests and special personnel available in some areas and not in others.

It is important also to focus on the time at which the event giving rise to the lawsuit occurred. There have been many beneficial developments in anesthesia practice in recent years, but courts have held that it is inappropriate and essentially unfair to consider recent developments in judging the actions of an anesthesiologist that occurred prior to those developments.

2. Proof

To establish the standard of care, in the great majority of cases the plaintiff must present the testimony of a qualified expert witness. Years ago, any physician could testify against an anesthesiologist, regardless of whether the physician might not have administered anesthesia for many years. Courts ruled that such a lack of current experience would be a matter for the jury to consider in weighing the witness's testimony but would not preclude the testimony from being presented.

Fortunately, the law has evolved so that in virtually every case against an anesthesiologist today, the plaintiff is required to present the expert testimony through a trained, qualified (and in some states, a currently practicing) anesthesiologist.(3) If there is a serious question about the qualification of the expert, a motion can be made before trial to preclude the witness from testifying. If an expert is deemed qualified, that expert may testify not only about the standard of care but also precisely how the defendant anesthesiologist deviated from or fell below that standard of care.

There is an exception to the rule that a plaintiff needs expert testimony to prove negligence. This exception--the common knowledge doctrine--recognizes that negligence is, in some situations, comprehensible to the lay person without the guidance of expert evidence. For example, if a surgeon inadvertently removes the wrong leg, the common knowledge doctrine applies. However, because of the scientific complexities of anesthesia procedures and techniques, the applicability of the common knowledge doctrine in these cases is extremely rare--indeed, practically non-existent.(4)

Consequently, in almost every anesthesia case, to establish the first element of negligence, the plaintiff must prove (1) the requisite medical standard of care (2) extant at the time of the incident that gave rise to the lawsuit (3) through the testimony of a qualified anesthesiologist.

B. Causation

The second element of a plaintiff's case involves causation. To establish liability, it is not enough simply to prove that there was negligence. There also must be proof that the specific act of negligence--the deviation from the requisite standard of care--proximately caused or contributed to cause the claimed injury. In some cases, there may be some intervening or superseding cause that breaks the chain of causation between the original negligence and the eventual injury. A break in the chain of causation is rare in anesthesia cases because the care usually is rendered in a limited time frame by one person or a team.

Here again, appropriate qualified expert testimony must be presented as to how the established negligence directly caused or contributed to cause the injury.

C. Extent of Injuries

The final element of a plaintiff's case includes the extent of the claimed injuries and all compensable damages (past, present and future) claimed to result therefrom.

D. Case Study: Dr. W

With these basic principles in mind, review of an anesthesia case, Rounsaville v. Dr. W et al.,(5) is illustrative of various aspects of anesthesia care and treatment. It also points out significant medical-legal problems.

The Rounsaville case was tried for three months in Fort Worth, Texas, in 1989. The jury returned a $13.6 million verdict in favor of Rounsaville and his family against the anesthesiologist, his anesthesia department chairman (who had no direct involvement in the case), the anesthesiologist's former partner (who also had nothing to do with this specific case), a neurologist who was the hospital chief of staff, and the hospital itself.

In April 1985, Rounsaville was a 44-year-old project estimator for General Dynamics Corp. earning $50,000 a year. A myelogram performed about a week before the operation in question confirmed the need for a lumbar laminectomy. The patient had some problems following the myelogram, including an apparently untoward reaction to the contrast dye used for the procedure, an adverse reaction to meperidine and seemingly some unusual reaction to diazepam. Consequently, the scheduled surgery was postponed, and he was discharged from the hospital to give him some time to overcome these reactions and prepare for surgery.

After readmission, Dr. W, the anesthesiologist, met with Rounsaville the night before his scheduled surgery. Among other things, he learned that the patient had had no previous surgery. He did, however, learn about the prior problems with drugs, including the apparent reactions to meperidine and diazepam, as well as some possible difficulty with nitrous oxide during a previous dental procedure.

The patient indicated to Dr. W that although he had never had surgery before, he wanted to be put to sleep and did not want to know anything about the operation. There was no question that he desired and requested general anesthesia. Nevertheless, the following morning Dr. W administered tetracaine as a spinal anesthetic. Either an insufficient amount was administered, or the tetracaine was administered in the wrong place, for when the surgeon pulled on the S2 nerve root, Rounsaville moaned, obviously in significant discomfort. Dr. W decided to convert to general anesthesia.

Thus, the anesthesiologist was presented with a 190-pound man with an unknown amount of tetracaine, in the prone position, without intubation or assisted ventilation, and with the drug history outlined above.

In spite of this, Dr. W then administered 10 mg diazepam and either 1, 2 or 5 ml sufentanil. There was uncertainty as to exactly how much sufentanil was administered. Dr. W testified that he thought he gave 1 ml; the anesthesia record indicated 2 ml; the hospital pharmacy record showed that a 5-ml ampoule was checked out for the case and that there were no wastage records to document disposal of any of these 5 ml. (One of the many questions raised during the trial was whether some of the 5 ml sufentanil checked out of the pharmacy was administered to the doctor rather than to the patient.)

It is understandable that because of these circumstances, Rounsaville became totally apneic. After some discussion between Dr. W and the surgeon, the patient was turned over, intubated and ventilated as he should have been much earlier, and resuscitated to a limited extent. But he was left with devastating brain damage, awake and aware, trapped in his body, totally cognizant of his pitiful plight.

At this stage, there should be no doubt as to why Dr. W was held liable. But why all the other defendants? There was substantial evidence presented that Dr. W had sustained some permanent neurological deficit as a result of a stroke experienced a few years earlier. The evidence showed that he had consulted the hospital's chief of staff, a neurologist, at the request of his former partner and of his chairman (both anesthesiologists) about six months before Rounsaville's operation. Dr. W was sent to a neurological specialist for examination and preliminary testing. Additional tests were required and planned, but everyone involved knew that Dr. W had a neurological problem of some significant potential.

In addition, there was evidence that six weeks before the Rounsaville operation, Dr. W had major problems with another anesthetic case. He failed to monitor a young patient properly, and as a result that patient died. Within days of that tragedy, Dr. W's two former partners, one of whom was the chairman, professionally dissociated themselves from him.

Compelling evidence also was also presented that at the time of Rounsaville's operation, Dr. W was chemically dependent--unquestionably alcoholic and possibly involved with other substances. Some or all of this was known to the chief of staff, the hospital administration and the other anesthesiologists.

The Rounsaville case provides numerous examples of acts and omissions that can expose an anesthesiologist and others to legal liability. The jury found Dr. W liable based on his own gross negligence. The hospital, the chief of staff, and the other anesthesiologists were liable for what might be termed administrative negligence. The jury found that based on what these parties knew prior to the Rounsaville surgery about Dr. W's personal problems and professional incompetence, they should have taken definitive action to preclude him from practicing anesthesia until he resolved the problems.


With this foundation, a practical review of the aspects of anesthesia care and practice will illustrate the pitfalls of medical negligence commonly encountered by various anesthesia practitioners.

A. Pre-operative

There are certain matters in the pre-operative phase that consistently present legal problems for anesthesiologists.

1. Consent

The law of informed consent is evolving in different ways in many jurisdictions in the United States. The fundamental assumption is that the surgeon has obtained proper consent for the surgical procedure and that in doing so there has been some, at least tacit, understanding that the patient will have to be anesthetized. From the anesthetic standpoint, it is generally not necessary to obtain a second, totally separate, consent with another form or to provide another detailed explanation of potential risks of the procedure. However, if there are any special potential anesthetic problems, particularly in light of some unusual condition of the patient, it is advisable, and in some cases required, that the patient be informed of such significant risks. Similarly, any questions that the patient has about the anesthetic technique or risks of anesthesia must be answered.

2. Special Instructions

During the pre-anesthetic visit, the anesthesiologist must consider any specific instructions from the patient. If the patient tells the anesthesiologist that he or she does not want, and will not permit, the physician to use a particular anesthetic technique, such as a spinal, or a particular drug, it is appropriate for the physician to attempt to change the patient's mind. Without talking the patient into it, the anesthesiologist, through appropriate professional dialogue, including explaining to the patient the value of the anesthetic technique, possibly can overcome this problem.

Anesthesiologists must not use any patient-prohibited drug or technique, since they do not have the patient's consent to do so. If they use a drug or technique that has been prohibited by the patient, they could be liable for technical assault and battery, even though there might not have been any injury at all.

3. Patient history and condition

The patient-anesthesiologist dialogue in the pre-induction phase must include attention to the patient's history and current condition. For example, in the Rounsaville case, despite the fact that Dr. W was aware of some apparent prior sensitivity of his patient to both meperidine and diazepam, meperidine was administered pursuant to his order as part of the pre-anesthetic medication. Then, when the patient got into trouble during the procedure, one of the drugs administered by Dr. W was diazepam.

An anesthesiologist must be aware not only of the patient's physical condition, but also of the patient's mental state. This problem was presented in another case involving a relatively short, 240-pound man scheduled for a lumbar laminectomy.(6) This patient was extremely apprehensive and anxious during the pre-anesthetic visit. He told the anesthesiologist that he did not want to know anything at all about his operation: "Just put me to sleep and get it over with."

The anesthesiologist knew that the neurosurgeon scheduled to perform the operation preferred to do so with the patient under spinal anesthesia. So with no further discussion with the patient, the anesthesiologist administered a spinal. Despite substantial doses of preoperative medications, the patient was apprehensive, crying and actively moving on the table in the operating room. Several attempts at spinal punctures were necessary.

Perhaps those factors contributed to cause the high spinal, the respiratory arrest and the resultant brain damage. Of course, it would have been preferable during the pre-anesthetic visit for the anesthesiologist to have discussed the situation with the patient, to have explained the value of the proposed spinal anesthetic technique, and to have attempted to allay the patient's concerns, perhaps thereby avoiding the injury that occurred.

In the pre-induction phase, the anesthesiologist must give careful consideration to the current condition of the patient as reflected not only in the examination but also, perhaps more significantly, in the medical chart. A particular concern here is what the chart reflects with regard to preoperative medications, administration of fluids and the patient's laboratory picture.

Consider, for example, a 24-year-old woman who underwent a cholecystectomy without incident, was found to have post-operative internal bleeding the following morning, and had to be returned to surgery to resolve that problem.(7)

First, after the surgeon determined that there was post-operative bleeding and that re-operation was required, he ordered two units of blood to be administered as quickly as possible before the second operation. The first unit was started without a pump about half an hour before the patient was taken to the operating room. The second unit was started after induction. No doubt, anesthesia was induced while the patient was anemic and at least relatively hypovolemic.

Second, the patient had a 10-year history of hypoparathyroidism, which required regular administration of calcium. Her internist had ordered calcium subsequent to the cholecystectomy and prior to the second operation, but that order was not carried out. This contributed in some degree to the calcium level of 1.5 mmol 1-1 (6 mg d1-1) reported in the chemical profile for blood drawn approximately six hours before the second operation.

Finally, that chemistry profile never found its way to the chart until after the second operation. When anesthesia was induced for that procedure, the anesthesiologist did not know that virtually all the laboratory values reported were significantly abnormal. He testified that if he had known, he would not have induced anesthesia without at least resolving the calcium problem. He also testified that he did not know that the patient was hypoparathyroid because the surgeon had not told him. However, the patient's hypoparathyroidism was well-documented throughout her chart. The anesthetist would have known this if he had only looked.

B. Intra-operative

1. Equipment

In the operating room, one of the first areas of concern must be the equipment utilized by the anesthesiologist. A number of problems have arisen with that equipment, and many of them are the responsibility of the anesthesiologist. In many instances, it is insufficient to say that the condition of the equipment is the hospital's responsibility because the hospital owns the equipment and provides it to the anesthesia personnel. Often it is the anesthesiologist's legal responsibility to make certain, to the extent practicable, that the equipment is appropriate and functioning properly. In some instances the hospital as owner or the manufacturer of the equipment may be liable for injuries caused by defects, but that does not always absolve the anesthesiologist. If the defect in the equipment is patent--that is, one about which the anesthesiologist knew or should have known--then the anesthesiologist too is liable.

At times, problems are encountered with rather routine equipment. One example is the case of a 27-year-old woman who was delivering her first child by emergency Caesarean section at midnight.(8) The baby was born healthy, but the mother suffered cardiac arrest while the incision was being closed. She remained comatose with electrocerebral silence for five years until her death. One of the principal problems the anesthetic personnel and the hospital had in this case was explaining why, at the time of the arrest, the only available defibrillator was in the hospital basement, two floors below the operating suite. Of course, resuscitative equipment that may be necessary must be readily available in the operating suite.

The anesthesiologist also must consider the anesthetic agents to be used. Gases must be checked before use to avoid the type of devastating injuries that have occurred as a result of inadvertent oxygen and nitrous oxide mixtures. It is important to check that anesthetic personnel have available not only all the agents they intend to use, but also those which they may not intend to use but might need.

2. Position of Patient

It also is important to consider carefully the position of the patient during the procedure. What position does the surgeon request for this particular procedure? Under the specific circumstances in which the anesthesiologist finds the patient, can the anesthesiologist permit that particular position? One must be aware, for example, of significant respiratory problems that can occur with certain positions, including the prone jack-knife position. There are also significant circulatory problems that can be presented in the sitting position during a long procedure.

After considering all the factors pertinent to the patient's condition and the probable duration of the surgical procedure, if the anesthesiologist determines that the position desired by the surgeon cannot be tolerated by the patient, the anesthesiologist should not proceed with induction. In such situations, the anesthesiologist has not only the right but also the responsibility to advise the surgeon of the potential dangers, recommend an alternative position (if any is available) and, if necessary, refuse to proceed with induction.

The relative seniority or political position within the hospital of the surgeon and the anesthesiologist is irrelevant in these situations. The anesthesiologist has the responsibility to the patient, to himself or herself and to the surgeon to refuse to proceed with induction if the facts and circumstances so require. The anesthesiologist must take full control of the anesthesia procedure for the protection of the patient and all others involved.

3. Anesthetic Agents

Among the most important concerns for the anesthesiologist intra-operatively are the anesthetic agents to be administered. It is recognized that even today there is a lack of precise understanding of how those agents work. From experience, however, it is known what they do, generally how fast they do it, and for how long. There is also considerable understanding of how they interact with, and perhaps potentiate, the effect of other anesthetic agents or adjuvants. All of these factors must be considered in administering such agents.

Many anesthesiologists support the use of balanced anesthesia as a fine technique in some cases and of considerable value for many procedures. However, balanced anesthesia is one thing while polypharmacy is quite another. In one case, no fewer than 23 different agents were administered in the operating room during the course of a long procedure, cardiac arrest and an unsuccessful attempted resuscitation.

Anesthesiologists are expected to keep abreast of the currently available information about the drugs they use. It is well-known and understood that there are controversies in the literature about how to use certain drugs and whether to use a particular agent under certain circumstances. However, as long as anesthesiologists are up-to-date on the literature and take into consideration their own clinical experience, they should be in a very defensible position. Among the many sources of information about anesthetic agents, anesthesiologists can rely on peer review journals and symposia, particularly with regard to new agents.

Another basic and important source of information is the manufacturer's package insert containing the prescribing information approved by the Food and Drug Administration. The package insert must be kept in proper perspective, however. Contrary to the assumptions of many plaintiffs' attorneys, the package insert does not instruct a physician how to practice medicine, and it is not a legally binding document. It contains valuable guidelines and recommendations, and it should be evaluated in that context.

On more than one occasion, the FDA has acknowledged that package inserts do not always contain the latest information.(9) Anesthesiologists must premise their use of these agents on sound pharmacological bases and good clinical judgment, even if such use might be inconsistent with the specific recommendations from the manufacturer. If an anesthesiologist is using an agent contrary to or inconsistent with the indications, dosage recommendations or other significant data in the package insert, the anesthesiologist must be prepared to support and defend that use based on clinical experience and recognized literature sources.

For example, a few years ago, a 40-year-old obese, hypertensive, diabetic woman was scheduled to undergo arthroscopic knee surgery under general anesthesia.(10) For a considerable period of time pre-operatively she had been taking chlorothiazide, furosemide and guanethidine. She remained on these medications at the time of the operation. She suffered cardiac arrest during the procedure and died after several weeks in a coma. It was determined at autopsy that death was caused by a previously unknown cardiac condition.

The anesthesiologist was charged with negligence in inducing anesthesia without having insisted that the patient be taken off guanethidine before this elective surgery. At the time of the operation, and even at the time of the trial three years later, the manufacturer's package insert for guanethidine specifically recommended that it be discontinued two or three weeks before the induction of anesthesia. It was clear that the anesthesia had been administered contrary to the explicit recommendations of the package insert. However, it was relatively easy to support and defend the anesthesiologist's action with testimony about valuable clinical experience and with reference to well-recognized anesthesia literature from the United States and the United Kingdom.

4. Anesthesia Record

Perhaps with the exception of monitoring issues, anesthesia records and charting problems have provided the most frequent bases for liability of anesthesia practitioners. However idealistic it might sound, all anesthetic chart notations should be timely, accurate and legible. Timely recordings, including those noting agents administered, vital signs observed and problems encountered, must be made as near as possible to the time the events occurred.

It is axiomatic that when difficulties are encountered with the patient, resolving those difficulties must take precedence, and that is far more important than charting. It is essential, however, that as soon as feasible after the difficulty occurs, someone should record what the problem was, when it occurred and what was done about it. In the Kries case, discussed earlier, an anesthetist testified that after the patient went into the intensive care unit, she and one of her colleagues wrote the entire anesthesia record, both pre- and post-arrest, for the first time. This was neither medically justifiable nor legally defensible.

It goes without saying that accuracy is essential. In the Rounsaville case, the anesthesia record included specific notations in two different places that no difficulties were encountered during the operation and that the patient was taken to the post-anesthesia care unit (PACU) in satisfactory condition. Those notations were totally erroneous, and one could not tell from the anesthesia record whether 1 or 2 ml sufentanil had been administered. Although the administration of diazepam was charted, there was no indication as to when it was administered.

The importance of legibility of anesthesia records is also obvious. Although everyone makes written errors that must be corrected, there is really only one legally defensible way to correct an error in an anesthesia record. The correction should be made as soon as the error is realized. It should be made in such a way that it is clear that a correction is being made--usually drawing a line through the erroneous notation. It is important never to erase or obliterate a notation. Regardless of how insignificant that notation might have been, erasing or obliterating it will immediately raise the red flag of suspicion with anyone reviewing the record. The anesthesiologist then may be faced with testimony presented not only by an expert anesthetist, but also by a handwriting expert, who probably will be able to decipher precisely what had been written and by whom.

Another important aspect of accurate charting is the relief of one anesthesiologist by another during a lengthy procedure. There is nothing legally wrong with one qualified anesthesiologist relieving another under these circumstances, but the fact that such relief occurs and the timing of same should be charted on the anesthesia record.

Any untoward event that affects the patient s condition at that time or that is likely to affect the patient s condition in the future must be charted. Failure to do so is not only unfair to the patient, but also indefensible from a legal standpoint and might subject the anesthesiologist to a charge of fraud. That is precisely what occurred in a case involving a subtotal gastrectomy during which the anesthesiologist interrupted the oxygen flow by kicking a long, makeshift oxygen hose.(11) Neither that incident nor the interruption of the oxygen flow was charted. When this came to light, the trial judge, at the request of the plaintiff s attorney, set aside a pretrial settlement with the anesthesiologist on the grounds of fraud. It is far easier to explain a problem that did occur and that was properly charted than to defend against charges of cover-up and fraud.

Improperly altered anesthesia records also present significant problems. This was just one of the difficulties an anesthetist had in a case involving a seven-year-old boy who sustained an accidental gunshot wound to his knee.(12) He was taken to a hospital where a general surgeon attempted to remove the bullet but was unable to do so. During that procedure, an anesthetist administered 4.5 ml fentanyl.

The boy then was transferred to a larger hospital where, within hours of the first procedure, an orthopedic surgeon successfully removed the bullet. During that second procedure, another anesthetist administered a total of 15 ml fentanyl. Despite the fact that this anesthetist was very well-trained and had significant experience with the agents in question, in this particular case he clearly administered an irrational overdose. The patient experienced post-operative respiratory depression, eventually arrested, and sustained severe brain damage. He died about three years later.

This record problem was evident from a simple comparison of two different copies of the chart. The first was obtained some considerable period of time after the operation but before the filing of the lawsuit. The second was obtained after the filing of the lawsuit. The first record contained no reference to the administration of naloxone. The second copy, obtained after the anesthetist was sued, indicated that naloxone was administered at the end of the procedure. Such altered records cannot be defended.

Finally, there is the problem of no anesthesia records at all. A recent case involved a 19-year-old man in sickle-cell crisis who underwent cholecystectomy, common duct exploration and liver biopsy.(13) The anesthesiologist testified that a number of anesthetic agents were administered preoperatively and intraoperatively. In the post-anesthesia care unit, the patient experienced what some described as seizures, what others described as malignant hyperthermia, and what all agreed were severe neurological sequelae.

The dosage, time of administration and any significant reactions to the intra-operative anesthetic agents were unknown because the intra-operative anesthesia record apparently was lost. Moreover, there were no pre-anesthetic or post-anesthetic notations in the record. At trial, the jury returned a verdict for the patient and his family of $2.6 million.

For the past several years, there has been much discussion about and technical development of equipment for automated anesthesia records. Not surprisingly, there is also considerable controversy about the advantages and disadvantages of such systems. It seems, however, that the goals of timely, accurate and legible anesthesia records will be much better served by automated records systems when they are perfected. Not only medically but also legally the benefits of automated anesthesia records will outweigh the risks.

5. Monitoring

Unquestionably the most fertile area of anesthesia practice for allegations of negligence is monitoring. The failure to monitor patients carefully, observe problems and remedy them before harm are the principal causes of most anesthetic disasters.

Although the law continues its unrelenting intrusion into medical practice, there is fortunately to date no statute or judicial decision requiring that every patient be monitored with pulse oximetry, capnometry, an esophageal stethoscope, Swan-Ganz catheter, and so on. At least to this point, the law leaves to the clinical judgment of the anesthesiologist the determination as to precisely which monitors are needed for each procedure. Sound clinical judgment must be exercised in each case, taking into consideration all the pertinent factors.

There can be no more important monitor than the anesthesiologist. Too much reliance on monitoring equipment can be dangerous to both the patient and the anesthesiologist. The importance of personal, clinical observation cannot be overemphasized. It is surprising how many cases are encountered in which the anesthesiologist was out of the room at the time of the patient's arrest or some other crucial event. Those practices cannot be tolerated or defended.

Even if the anesthesiologist is in the operating room, it does not help the patient if the anesthesiologist is not aware and alert. Being present and alert and monitoring properly are absolutely essential. If the patient gets into trouble and the anesthesiologist does not act quickly and decisively, however, all the monitoring is for naught. Anesthesia personnel cannot afford to be reticent. They must take whatever definitive action is necessary, even if it includes aborting the procedure.

C. Post-operative

1. Recovery

After the operation, the anesthesiologist continues to be responsible for the patient. Here the first and most important principle is that the anesthesia personnel must accompany the patient to the PACU. It is not enough that the surgeon and assistants go with the patient. It does not matter whether the patient has been extubated in the operating room and is awake and apparently fully responsive. Anesthesia personnel must accompany the patient to the PACU in all instances. A myriad of events can and have occurred en route to the PACU, and the patient must have anesthesia personnel immediately available to respond.

Once the patient is in the PACU, it is proper and appropriate for the anesthesiologist to turn the patient's care over to the PACU staff, provided it is safe and reasonable to do so. It is not appropriate to leave a patient in a PACU that is obviously understaffed. A surprising number of cases have involved incidents that occurred in the PACU during the lunch hour, when a number of operative procedures are ending, several patients are being taken to the PACU, and half or more of the regular PACU nurses are at lunch or elsewhere. There is no legally mandated ratio of PACU nurses to patients. However, if it is clear that the PACU is insufficiently staffed, the anesthesiologist owes it to the patient to stay and make whatever arrangements, by telephone or otherwise, are necessary to resolve that problem before leaving.

It also is important to communicate directly and verbally with PACU personnel and advise them of any special concerns or problems they should anticipate. If unusual agents with which they might not be familiar were utilized, it is not sufficient simply to leave the chart with the patient and expect the nurses to review, analyze and act on it. Direct, personal communication is essential for the well-being of the patient.

D. Post-anesthesia Visit

The post-anesthesia visit and evaluation is an excellent opportunity to reinforce (or perhaps establish for the first time) rapport between the patient and the anesthesia personnel. It is an ideal time to reassure the patient, to respond to questions or concerns that the patient might have, and to record observations about the patient's condition.

This also is an excellent opportunity to review and recheck the anesthesia record and to change any erroneous notations. While such action may be significant to a legal defense, that is not the primary purpose for doing so. It is for the benefit of the patient. The patient needs to have the anesthesia care accurately recorded because it may be reviewed in the future if the patient undergoes further surgical procedures.


While it is important for all anesthesia personnel to be aware of and concerned about the legal aspects of medical care and potential exposure to liability, it is equally important that the these concerns do not control or interfere with the administration of proper care. If anesthesiologists are overly concerned about potential legal problems, if they try practice what has been called defensive medicine, they inevitably will practice inadequate or improper anesthesia, to the detriment of both patient and anesthetist.

If problems occur in the operating room, the smartest thing anesthesiologists can do is simply to practice the best anesthesia they know how and to let defense counsel worry about potential legal problems later. (1.) J.H. Tinker et al., Role of Monitoring Devices in Prevention of Anesthethic Mishaps: A Closed Claim Analysis, 71 ANESTHESIOLOGY 541 (1989); C.J. Cote, A Single Blind Study of Combined Pulse Oximetry and Capnography in Children, 74 ANESTHESIOLOGY 980 (1991).

(2.) See, e.g., Webb v. Jorns, 488 S.W.2d 407 (Text 1972), rev'g 473 S.W.2d 328 (Tex.Civ.App. 1971).

(3.) See, e.g., Cornfeldt v. Tongen, 262 N.W.2d 648 (Minn. 1977).

(4.) See McKinney v. Nash, 174 Cal.Rptr. 642 (Cal.App. 1981).

(5.) State court, Tarrant County, Texas, 1989.

(6.) Kries v. McNeil Lab. Inc., state court, Lexington, KY, 1975.

(7.) Norwest v. Presbyterian Intercommunity Hosp., state court, Multnomah County, Oregon, 1979.

(8.) Dubinsky v. McNeil Lab. Inc., U.S.D.C. E.D. Mo.,1976.

(9.) Regulations for the Enforcement of a Federal Food, Drug and Cosmetic Act and the Fair Packaging and Labelling Act, 40 Fed. Reg. 28585 (1975).

(10.) Hollingsworth v. Akron City Hosp., state court, Summit County, Ohio, 1982.

(11.) Apicella v. McNeil Lab. Inc., U.S.D.C. S.D. N Y., 1975.

(12.) Swayze v. McNeil Lab. Inc., 807 F.2d 464 (5th Cir. 1987).

(13.) Cooper v. Sams, 628 So.2d 1181 (La. 1994).

IADC member and President (1996-97) George Gore is a partner in the Cleveland office of Arter & Hadden. A graduate of Notre Dame University (A.B. 1961) and Western Reserve University (J.D. 1964), he concentrates in the areas of medical products and medical professional liability.

IADC member Janet H. Smith, also an Arter & Hadden partner, concentrates her practice in the same areas. She is a graduate of Bucknell University (B.A. 1969) and the Cleveland-Marshall College of Law (J.D. 1986).

This article is adapted from a chapter entitled "Anaesthesia and the Law--U.S. Practice," which appears in a two-volume medical text published in the United Kingdom by Butterworth Heinemann, International Practice of Anaesthesia, edited by Cedric Prys-Roberts and Burnell R. Brown Jr. Defense Counsel Journal thanks the publisher for permission to use this edited version of material from the work.
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Author:Gore, George; Smith, Janet H.
Publication:Defense Counsel Journal
Date:Apr 1, 1997
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