Anesthesia practice: avoiding legal liability.

• Author: Gore, George

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.

ESTABLISHING LIABILITY

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

1. 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.

2. 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.

3. 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.

4. 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...