One of the best ways to avoid common anesthesia errors is to review cases in which patient injuries occurred, identify alternative practice management that might have avoided the adverse outcome, and incorporate those lessons into one’s own practice. Quality assurance (QA) or continuous quality improvement (CQI) committees for anesthesiology departments and hospitals use this strategy to improve patient safety. However, some adverse outcomes will occur despite good medical management and may eventually result in lawsuits.

Similar to the QA or CQI committee review of adverse outcomes, review of claims or lawsuits filed against anesthesiologists may also identify factors associated with specific patient injuries, as well as factors associated with patients’ decisions to file a lawsuit and unfavorable judgments against anesthesiologists. Recognizing the value of these claims, the American Society of Anesthesiologists (ASA) established the Closed Claims Project in 1985 to collect detailed information from these insurance company files from across the country by trained anesthesiologist reviewers.

For those unfamiliar with the medicolegal system, “closed claims” refer to claims that were filed by patients against doctors, allied health professionals, or hospitals for medical malpractice, and were dropped, settled, or proceeded to trial with a resulting judgment. The litigation phase is completed on these claims and thus they are considered “closed.” Since its inception, the ASA Closed Claims Project and related Registries has published >100 articles describing factors associated with particular patient injuries, with a focus on improving patient safety. It was reported in the Wall Street Fournal in 2005 as one of the leading causes of improved patient safety in anesthesiology over the last two decades, resulting in some of the lowest medical malpractice premiums for any specialty. It currently contains >7,000 closed claims in its database, spanning the last three decades. This chapter focuses on recurring themes that are associated with claims and with unfavorable judgments taken from the ASA Closed Claims Project to better inform the reader on how not to end up in a closed claim.

Though consent is frequently an issue in medical malpractice claims, it is rarely the sole reason for the lawsuit, and when consent becomes a legal concern, it is usually associated with an adverse outcome. The consent issue has been likened to an anniversary card—“obtaining one does not guarantee you a good time, but you’re asking for it if you don’t get one.” Consent issues may arise for a variety of reasons: (a) inadequate disclosure of the risks of a procedure—e.g., risk of postdural puncture headache after a subarachnoid block; (b) failure to obtain consent for a procedure—e.g., performance of a regional technique under general anesthesia; or (c) documentation of refusal of care when a patient refuses your recommendations—e.g., a patient with severe chronic obstructive pulmonary disease and congestive heart failure who refuses a regional technique for ankle surgery.

Items for consent discussion should include common complications, as well as any rare devastating complication that the typical patient would find important to decide on a particular treatment. However, these discussions should not be used to list all possible complications, as patients will lose sight of the major concerns. Documentation of the risks-and-benefits discussion with patients is key to minimizing medicolegal issues surrounding consent. Certain states and certain malpractice liability companies require a separate anesthesia consent form with a patient signature.

While the patient was still anesthetized, the anesthesiologist attempted placement at two thoracic levels but was unsuccessful. In the postanesthesia care unit (PACU) the patient was noted to have a flaccid right leg and minimal movement of her left leg. Magnetic resonance imaging demonstrated a lesion in the thoracic spinal cord at the attempted epidural insertion sites, with edema above and below. Payment was approximately $350,000.

Issues surrounding preoperative evaluation in closed claims usually involve (a) lack of documentation of an airway examination in cases of unsuspected difficult intubation or (b) lack of follow-up on abnormal preoperative tests (frequently ordered by other health care providers) in cases in which the delay in diagnosis, treatment, or consultation resulted in harm to the patient (e.g.. chest radiograph with a new cancerous lesion or abnormal electrocardiogram (EKG) with a subsequent perioperative myocardial infarction). These issues emphasize the importance of performing and documenting a
thorough preoperative evaluation and addressing any abnormal test results with appropriate treatment, consultation, or referral.

A 50ish-year-old man presented for a transurethral prostatic resection under spinal anesthesia. The patient’s EKG showed “ischemic changes with possible myocardial infarct.” The EKG was not reviewed by the anesthesiologist or the urologist before surgery. There was no medical or cardiology consult for the elective procedure. The patient developed chest pain on the first postoperative day and a diagnosed myocardial infarction on the second postoperative day. The patient eventually had coronary artery bypass graft surgery. A lawsuit was settled out of court for failure to diagnose the myocardial infarct before surgery and for the lack of consultation. Payment amount was approximately $200,000.

In this age of same-day surgery admissions and outpatient surgery, the frequency of one anesthesia health care provider doing the history and physical and another providing the anesthetic is an everyday occurrence. Pertinent medical information may be lost or specific patient promises may not be honored when poor communication occurs. Thorough documentation of any discussions with patients regarding their health history or specific wishes regarding their anesthetic management should help to avoid this problem. Patients may assume that both parties communicated effectively with each other, and that they have no need to repeat their questions, concerns, or information provided to the first anesthesiologist. Any unusual issues should be communicated directly between health care providers. Similar strategies of good documentation and direct communication during “handoffs” should improve patient care and minimize liability exposure.

A 50-year-old woman presented for major reconstructive spine surgery with instrumentation. Two anesthesiologists and two certified registered nurse anesthetists (CRNAs) were involved throughout the course of this 8-hour surgery. The first anesthesiologist started the case with the first CRNA and then left the building to take care of personal matters because he was on call that evening. He assumed that the second anesthesiologist had assumed care of the patient, but the second anesthesiologist denied assuming care for the patient, except to approve an order for lasix by the first CRNA for low urine output (<200 mL urine was measured during the first 6 hours of surgery.) During the 5 hours the CRNA was left unsupervised, she failed to recognize hypovolemia, treated low urine output with furosemide, and allowed the patient’s systolic blood pressure to run in the 80s for 5 hours in a normally hypertensive patient. (She said the surgeon requested deliberate hypotension, but the surgeon denied this allegation in deposition.) No arterial line was used and no blood gases were sent
for analysis. The patient awoke with permanent bilateral blindness secondary to posterior ischemic optic neuropathy. There was no documented preoperative plan and no anesthesiologist signature on either the preoperative form or the anesthetic record. Because of the concern that the jury would view abandonment of the patient by the anesthesiologists harshly, the case was settled for over $300,000 before going to trial.