© Springer International Publishing AG 2017Brendan T. Finucane and Ban C.H. Tsui (eds.)Complications of Regional Anesthesia10.1007/978-3-319-49386-2_35
35. Medical Legal Aspects of Regional Anesthesia: Legal Perspective
Faculty of Law, University of Otago, Dunedin, New Zealand
Department of Anaesthesia, Waikato Hospital, Pembroke Street, Hamilton, New Zealand
Understanding of regional anesthesia malpractice claims from a lawyer’s perspective is helpful in appreciating the legal process involved, including requirements for record-keeping, documentation of consent, and cases of practicing outside of guidelines.
Legal systems and definitions of malpractice vary around the world; however, for most jurisdictions, a successful claim requires that patient be able to establish that the anesthesiologist owed them a duty of care and that this duty was breached, resulting in injury.
Important legal issues can arise from lack of documentation of procedures, incomplete records, absence of or incomplete patient consent, issues with handover of care, and failure to adhere to recommended guidelines and practice standards.
Introduction: Lawyer’s Perspective on Common Issues in Regional Anesthesia Malpractice Claims
Lawyers and doctors have been trained in very different intellectual traditions. When a lawyer is instruct ed to defend a doctor from a malpractice claim , this is a stressful time for the doctor and these different intellectual approaches can cause frustration and confusion. This chapter therefore aims to orient regional anesthetists to the lawyer’s perspective on defending claims that might arise from their practice.
The challenge of writing a chapter on medicolegal issues for an international textbook is that there are important differences in legal systems of different countries. These differences can make generalization difficult, and, if the wrong information is given, even harmful. This chapter is therefore necessarily a broad brush, introducing readers to the lawyer’s perspective on defending claims that an aspect of a regional anesthetic has given rise to liability. What that liability is, varies between countries. In New Zealand, where we practice, there is a national no-fault insurance scheme that bars claims for personal injury for anything short of “outrageous” conduct. Patients can however complain to a tribunal that makes findings about whether a doctor has breached a patient’s rights. At the other end of the spectrum is the United States, where patients can bring civil legal claims against doctors for personal injury, and frequently do. The civil law countries of continental Europe have markedly different legal systems to that of the common law countries (the United Kingdom, Canada, Australia, United States and New Zealand). All these countries have some form legal liability for medical malpractice whether founded in tort (a civil wrong) or contract law. The form of liability can go by different names, e.g. “malpractice ” in the US and “negligence” in the UK, and we have used the term “medical malpractice ” here for consistency.
Regional anesthesia is a high risk area of practice. In a UK analysis, 44 % of the medicolegal claims were related to regional anesthesia (including spinal and epidural anesthesia) , and claims related to regional anesthesia had the largest combined dollar value of claims paid, (although the mean payment per claim was significantly less than the mean payment related to respiratory events or events related to central venous line cannulation). Unsurprisingly, previous studies have shown that fear of ligation or medicolegal concerns are in the top three worries that practitioners have in regard to their practice .
In most jurisdictions, the basic elements that a patient has to establish to make a successful claim for malpractice are that:
You, the anesthetist, owed the patient a duty of care
You breached that duty (whether by an act or omission)
The patient suffered an injury as a result of your breach
Whether a practitioner has been negligent seems to have little bearing on the likelihood of being sued or even whether there is a pay out to the claimant [3, 4]. A study published in the New England journal of medicine concluded that “the severity of the patient’s disability, not the occurrence of an adverse event or an adverse event due to malpractice , was predictive of payment to the plaintiff” . Patients and the public at large, often equate a negative outcome with malpractice . Practitioners, therefore, need to be aware of how they can give themselves the best opportunity to a successful defence.
This chapter uses three hypothetical scenarios as a starting point to discuss the lawyer’s perspective on avoiding or defending allegations of medical malpractice . Before we get started however, a legal disclaimer: these scenarios are purely fictional, and any relationship to real events is coincidental .
Ali has been practicing anesthesia at public hospital in Australia for 25 years. He performs a general anesthetic on a 65-year-old patient who presented for a left total knee joint replacement. Six weeks following the surgery at orthopaedic follow-up clinic, the patient complained of ongoing quadriceps weakness and altered sensation. Examination revealed significant weakness and paresthesia in the distribution of the femoral nerve. The surgeon suggested to the patient that it may be the result of the femoral nerve block undertaken at the time of the surgery. The patient has no recollection of a femoral nerve block being discussed during the anesthetic consent. Ali has no record of a written anesthetic consent although maintains the patient did consent to the femoral nerve block after a discussion of the risks and benefits. There is a note on the anesthetic chart indicating that femoral nerve block was undertaken. The note contains the drug dose but no other information.
The patient makes a claim against Ali alleging malpractice .
Scope of Consent
Most, if not all, jurisdictions would consider separate anesthetic consent essential. This has been a significant change in practice over the past decade, and there are several persuasive arguments in the literature for this practice that we will not revisit here [5, 6]. A cornerstone of the consent process is providing the different options for anesthesia and analgesia and coming to a shared decision with the patient. A crucial part of this process is discussing the benefits and possible complications of each of the anesthetic options.
Precisely what you need to discuss with a patient to create valid consent varies between countries. Your insurer is likely to provide up-to-date information about the scope of consent required in your country. The majority of complaints for regional anesthesia practice arise from nerve injury and failure of planned blocks, so it is a sensible defensive strategy to always discuss these risks with a patient, regardless of whether you are required to discuss them under your consent law.
In Australia, where Ali is practicing, and in some other common law countries, the standard involves asking, “What would a reasonable patient in this patient’s position want to know about the risks and benefits of this anesthetic?” This standard was developed in the Australian High Court case Rogers v Whittaker where enucleation of one eye led to sympathetic ophthalmia and blindness in the remaining eye of the patient. The patient had asked about risks and made the doctor aware that she was concerned about damage to her “good” eye. The doctor considered the risk of sympathetic ophthalmia, which was considered 1 in 14,000, was too remote to warn the patient and produced evidence from other specialists that supported his practice in not discussing this risk.
The Court found that the failure to warn was negligent and that a doctor must discuss “all material risks” inherent in the treatment . A risk is “material” if a reasonable patient in that particular patient’s situation would be likely to attach significance to it, or if the doctor “is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it”. While it is of course not possible to guess what a patient might consider important, the Court thought that the patient’s questions about risks and concern about avoiding harm to her “good” eye were sufficient to alert the doctor that sympathetic ophthalmia was a “material risk.”
The underlying policy of this consent process, and the many similar consent laws around the world, is that the doctor and patient engage in a discussion and that the doctor listens to the particular patient’s concerns, and thinks about their individual situation. This allows the doctor to provide relevant information so the patient can make an informed choice. Consider, for example, a patient coming to clinic to discuss anesthetic options for release of a Dupuytrens contracture. If the patient asks about recovery times and mentions wanting to be able to practice for an audition to the Julliard School for violin, then you should make very careful notes about your consent discussion for a brachial plexus block and the alternatives discussed. Similarly, a patient saying they must get away from clinic quickly because they are singing in an amateur production, should alert you to the need to carefully consider and document the potential risks to the voice from intubation. In this case, Ali says he did warn the patient of the risks of a femoral nerve block and the patient consented. The question is then how to prove this consent .
Litigation commonly centers on what was discussed in the consent process. What risks were identified to the patient and what was the patient’s response? Verbal and written consent are both valid forms of consent. From a lawyer’s perspective, written consent is preferable. Written consent provides an independently verifiable record of what was discussed. Verbal consent is much harder to prove, relying on the credibility of witnesses who tell the decision-maker what they say happened.