Anesthesia-related legal actions in Canada decreased over a decade or so between 1995 and 2004. Legal actions related to Obstetric anesthesia are miniscule by comparison over the same period
In Canada, about 60 % of cases that arise from anesthesia practice are dismissed, and approximately 30 % of claims against anesthesiologists are settled. Cases are settled when expert support is lacking. Experts are peers who are familiar with the practice of anesthesiology relevant to the claim. The remaining 10 % go to trial. When going to court, anesthesiologists win about 75 % of cases, but the courts find against the doctor in the remaining 25 %. CMPA protection provides no limit to the cost of legal help which the member is eligible to receive. Similarly, there is no dollar limit on damages paid to patients, but structured settlements are encouraged.
Disabilities and Legal Outcome
Not all harm suffered by patients during anesthesia is attributable to negligent anesthetic care. Therefore, the severity of physical disabilities suffered by patients may not be related to the legal outcome of claims. Physical disabilities for the purpose of legal action in Canada can be classified as: minor: pain, scarring; major: disabilities that interfere with the activities of daily living; catastrophic: resulting in severe neurologic impairment; and death.
Legal outcomes are divided into four categories: (1) consent dismissal—plaintiff(s) withdraws or abandons the legal action before trial. (2) Settlement—legal action is resolved by way of a payment by CMPA on behalf of the defendant member before trial. (3) Judgment for the defendant—the court decides in favor of the defendant at trial (case won). (4) Judgment for the plaintiff at trial (case lost).
Claims Experience in Regional Anesthesia
Until recently 20 % of medical legal actions in anesthesia were related to regional anesthesia . In the most recent reporting period (2008–2012), 50 % of the actions were related to regional anesthesia , including pain procedures and obstetric regional cases. The legal outcome was overall better in these cases than litigation related to general anesthesia—in that 80 % were dismissed and only 10 % were settled. Should the case go to court, the outcome is the same: 7 of 10 cases are decided in favor of the defendant.
If the patient experiences a complication, even resulting in a significant disability, but there is no fault in the standard of care, the case is usually dismissed or won in Canada. Vigorous defense of doctors who practice within the standard of care results in fewer lawsuits. Good plaintiffs’ lawyers in Canada know this, and most investigate the validity of a claim before taking the case.
Neuraxial blocks (spinal and epidural) comprise the majority of cases that lead to medical legal difficulties (75 %), and this trend has not changed in more than 30 years. In the most recent report (2008–2012) one third of the complications related to neuraxial block involved obstetric patients. Peripheral nerve blocks also give rise to complications that may trigger complaints and lawsuits. Regional anesthesia is increasingly used in postoperative pain management, and recently we have seen cases arise from both acute and chronic pain management. Major risk factors associated with neuraxial block include : obesity , pre-existing anatomic deformity and anti-coagulation.
Cases arising after spinal and epidural anesthesia can fall into any one of the four categories of outcome. Paraplegia is a catastrophic outcome. Postdural puncture headache (PDPH ) is a relatively “minor” outcome but can seriously impact the family when protracted. To date, no such case has been settled against a Canadian anesthesiologist. In contrast, in the vast majority of cases of paraplegia resulting from an epidural anesthetic, the legal outcome was unfavorable to the physician.
Overall, the patient outcome from malpractice claims related to regional anesthesia was similar to that of all anesthesia claims, with a slightly higher percentage of patients suffering minor or major disabilities, but fewer catastrophic outcomes and deaths.
Analysis of Regional Anesthesia Claims over a 20-Year Period
The CMPA database allowed for analysis of closed claims related to litigation against anesthesia practitioners who performed regional anesthesia in Canada. The cases closed in the years 1990–2002, but the actual medical care or procedures that gave rise to these claims happened from 1977 to 2000. The average claim can take between 3 and 4 years to process and complete. Data from the most recent reporting period (2008–2012) have not yet been fully analyzed at this time.
There were 77 cases related to regional anesthesia performed in operating suites or pain clinics across the country. The procedures were for intraoperative anesthesia, postoperative pain relief, or treatment of chronic pain. In addition, there were 41 cases arising from obstetric anesthesia and analgesia in the same period. These will be discussed separately.
Patients who sue doctors or hospitals do so for many reasons, but usually litigation arises when the patient or the family believes that the outcome of the procedure has caused damage. Unsatisfactory outcome will not in itself lead to legal actions; there are usually a number of factors that may influence the patient or family to launch a legal complaint. These include communication failure, lack of consent, permanent disability, unexpected catastrophic outcome, or death .
Epidural or spinal analgesia and anesthesia is frequently used in the operating setting and in the pain clinic. We do not know how many such procedures are performed daily in Canada, but the trend is to use neuraxial blocks as an adjuvant to anesthesia for thoracic, abdominal, and lower body surgery. Spinal anesthesia is frequently used for pelvic and urologic procedures. Combined spinal and epidural anesthesia is also used frequently. The denominator is therefore probably very large, and the number of cases leading to legal problems very small. We cannot put a number on this ratio.
There were 25 cases involving epidural injections. Of these, nine were epidural steroid injections, three epidural blocks for chronic pain relief, seven cases of epidural catheters inserted for postoperative pain relief, and six cases of epidural anesthesia for surgery. The complications associated with these epidural procedures varied widely. There was one broken catheter, where the tip could not be found. Other minor outcomes (see above) were two cases of PDPH and one case of lipolysis of the back. Numbness, temporary weakness, and ongoing back pain led to complaints in some cases. One patient complained of awareness! There was a case of “vasomotor instability” and one case of intravascular injection with seizures. Viral hepatitis, contracted months after the epidural, led to a complaint against the anesthesiologist. Two patients developed foot-drop, one after an epidural steroid injection and one after attempted epidural for hernia repair. Total or high spinal anesthesia necessitating resuscitation occurred in three cases, one after an epidural steroid injection and two after epidural analgesia for postoperative pain relief. Even though one of these patients had a cardiac arrest, the resuscitation was successful in all cases, and no permanent sequelae resulted. All the cases mentioned above were dismissed.
More serious outcomes were four cases of paraplegia and one case of organic brain damage. These cases are instructive, in that all except one case were settled on behalf of the doctors involved because they could not be defended. However, one case of paraplegia was dismissed, because the lesion occurred well above the insertion site of the epidural and the etiology of the cord damage could not be ascertained. The four cases that could not be defended hinged on lack of consent for the procedure, lack of monitoring during hypotensive anesthesia, and use of a non-approved drug for epidural injection. In the fourth case, the epidural steroid injection was not related to the development of paraplegia; it resulted from a sequestered disc, but the case could not be defended because the doctors involved did not adequately assess the patient before going ahead with the injection. There were no deaths in the epidural group.
Eleven legal actions arose from spinal anesthesia for surgery. That is a remarkably small number over a 20-year period considering the commonality of spinal anesthesia. All these actions were dismissed. Two complaints were for PDPH . Persistent back pain or sciatica occurred in several cases; one of these was thought to be attributable to aseptic meningitis, the others to preexisting conditions. One complainant had multiple attempts at insertion of the spinal needle. One patient developed persistent tinnitus and hearing loss. There was one case of cauda equina syndrome of unproven origin, and a complaint of leg weakness that presented 6 months after the spinal anesthetic and was found to be caused by disc disease.