Anesthetic complications can occur without negligence, or even when physicians follow the standard of care. However, for the patient and family, the loss of a loved one is significant, especially when it results in death. Many lay people do not accept that serious complications and death can happen without someone being at fault. Litigation over a patient’s death is an emotional event for both the patient’s family and the physician. The litigation arena is foreign to most people, particularly physicians. Anesthesiologists who may be defendants in a malpractice action clearly are concerned not only with the case, but also with the process. The same concerns apply to certified registered nurse anesthetists (CRNAs) and any other medical personnel who may be involved.

Defendant physicians or their expert witnesses have often stated, “When you hear hoof beats, you don’t look for
zebras.” In reality, beginning in medical school, first year medical students are trained in the art and science of differential diagnosis—an approach designed to reveal all potential causes for a patient’s clinical symptomatology. Using their full armamentarium of knowledge, training and experience, reasonably prudent physicians consider all possible explanations for a patient’s presenting signs and symptoms, and then systematically rule out potential causes until the correct diagnosis is reached—even if it has stripes! Attempts are made to eliminate potentially lethal conditions first, then progress to those less likely to result in significant morbidity or mortality.

We all have our tools of the trade. In the legal profession, words are the primary tool, and cross-examination is analogous to the surgeon’s scalpel. The doctor’s “tool box” contains various techniques and approaches used to meticulously narrow the list of “suspects” (i.e., competing diagnoses) until the truth is revealed, much as crossexamination is designed to reveal the truth in a court of law. The tools in this search for the truth include the detailed medical history, the meticulous physical examination, pertinent laboratory work, and various relevant diagnostic tests and/or imaging modalities. As data from these tools are collected, the list of potential diagnoses is refined and narrowed until, ideally, the proper diagnosis is reached.

In the true life example set forth, the defendant physicians heard a stampede of thundering hoof beats, and, rather than search for horses, began searching for zebras. Apparently nobody considered a perforated hollow viscus as the source of the massive subcutaneous emphysema or pneumomediastinum. Witnesses described massive swelling of the patient’s face and neck; one even described her as having a “pumpkin head.” Unquestionably, angioedema from anaphylactic shock can cause dramatic swelling but not palpable crepitus, massive subcutaneous emphysema, and pneumomediastinum. In short, the diagnosis of anaphylaxis did not adequately explain the patient’s objective signs noted with clinical examination.

No one could reasonably fault the health care team for administering counter measures for anaphylaxis, because their administration is, at worst, benign and ineffective, and, at best, life-saving. They were faulted for failing to explain the unexplained (i.e., how a patient who underwent abdominal surgery developed the sudden onset of massive subcutaneous emphysema in her face and neck in the immediate postoperative period).

The general surgeon knew that all his work was performed below the diaphragm, and therefore trapped air in the neck and face resulting from the surgical procedure was virtually impossible. Even if he had perforated the patient’s bowel, an upright chest film would only have shown trapped air beneath the diaphragm (if at all), and not trapped air in the neck and mediastinum. As the air was gradually absorbed into the patient’s system, her swelling subsided, and everyone assumed that the internist had not only made the proper diagnosis, but also possibly even saved the patient’s life with timely orders for diphenhydramine and methylprednisolone. In reality, his misdiagnosis gave everyone a false sense of security, and efforts to find the true cause of her clinical symptomatology were quickly abandoned.

The anesthesiologist’s semi-emergent re intubation of the patient at the end of the case was done without the benefit of additional sedatives or paralytics. A 4-cm linear perforation of the posterior cervical esophagus resulted, which went undiagnosed. To make matters worse, the treating anesthesiologist failed to document the reintubation in the anesthesia record or in the anesthesia PACU discharge note. Also, she did not mention the emergent reintubation to the attending surgeon, the Chief of Anesthesiology (who covered for her while she was in surgery), the consulting internist, or the radiologist. Had she done so, more probably than not, someone would have ordered a Gastrografin swallowing study to rule out a perforated esophagus, because it is a known complication of an emergency intubation and one which presents with these rather classic signs and symptoms.

The Chief of Anesthesiology claimed to have asked the treating anesthesiologist whether she knew of any possible explanation for the problems the patient had experienced in the PACU. Rather than admit to the emergent reintubation at the end of the case, she said she knew of no reason to explain the patient’s new problems. The Chief’s own credibility was an issue, however. He denied on deposition that he had ever served as the Chief of Anesthesiology at the hospital in question, notwithstanding the fact that the position was set forth on his resumé. Nothing turns an otherwise defensible case into a sure loser quicker than dishonesty or a refusal to concede the obvious.

Because of the missed diagnosis, the esophageal perforation went unrepaired for more than 7 days, and, as the patient’s diet was gradually advanced, food and fluids tracked down into the mediastinum, ultimately resulting in suppurative mediastinal sepsis, multiorgan failure, and death.

In reasonable medical probability, the answer is “yes”. Had the treating anesthesiologist been forthcoming about her experience with the patient, most credible expert witnesses would have said, “There but for the grace of God go I” (i.e., that it could just as easily have happened to them.) The diagnosis would have been confirmed by Gastrografin swallow, and the patient taken promptly back to surgery for mediastinal drainage and primary repair of the esophagus, followed by aggressive parenteral antibiotic therapy.

A skilled defense attorney could easily defend the following facts, had they been present:

Unfortunately, rather than admit to what had transpired in the OR, the anesthesiologist attempted to hide the truth by refusing to document the emergency reintubation in the medical record, by failing to disclose it to her professional colleagues (even after serious complications arose with her patient), and by never admitting to an honest mistake. As a result, she tendered her million dollar policy limit at mediation and was thankful to do so.

Tort law evolved to punish wrongdoers and to compensate those harmed by wrongful actions. The philosophy of such a system is to achieve justice by shifting loss to the wrongdoer rather than to the victim or society. As the philosophy is applied to real life situations, this simple system, with its basic tenets of right and wrong, quickly becomes complex. Numerous competing interests exist between the injured, the alleged wrongdoer, and third parties such as insurers, creditors, and society in general. Along with the complexity and competing interests inherent in all claims, extreme animosity between doctors and lawyers has also developed in medical litigation. Perhaps at no other point in history have lawyers been so bitterly distrusted by physicians as now.

Physicians are often targets in civil tort litigation in medical malpractice claims. To protect themselves, they attempt to obtain adequate professional liability insurance to cover potential malpractice losses.¹ The most common type of professional liability insurance is “claims-made” coverage. It provides coverage for claims that occur and are reported while the policy is in effect. Unless both conditions are met during the policy period, there is no coverage for the physician for the claim.

A less common, harder to secure, and more expensive type of coverage is “occurrence” insurance. It provides coverage for any incident that occurs during a policy period, regardless of when it is reported.

“Tail” coverage is an additional type of policy. It is a supplemental type of policy, which insures for incidents that occur during the “active” period of a claims-made policy but are not brought as claims or reported to the insurer by the time the claims-made policy is terminated. Tail coverage is important for situations in which a physician changes his claims-made carrier or when a physician retires or dies. It is typically purchased from the previous claims-made carrier at a cost of 125% to 250% of the previous year’s premium. Many physicians now opt for self-insurance programs with physician groups. Others practice without insurance coverage. In some communities, hospitals provide coverage. In addition, some physicians select higher deductibles and lower coverage limits in exchange for lower premiums.

In recent years, insurers have increased premiums, imposed various limitations on coverage, and dropped out of the insurance market. Physicians blame the civil tort system and trial lawyers for increases in medical claim payouts and the escalation of professional liability insurance premiums.

We, as a society, place great value on our health. We demand the most technologically advanced care, with treatment by highly skilled physicians who utilize state-of-the-art equipment and procedures and the finest pharmaceuticals in an attempt to relieve every chronic and acute health problem. We demand that care be available immediately. We want life-threatening conditions reversed, limbs salvaged, and pain eliminated. We look to our physicians and other health care providers to meet these demands and, for the most part, they do. The Centers for Disease Control recently indicated that life expectancy is greater than ever in this country. For white men, the life expectancy was 75.4 years in 2003 and 75.1 in 2002. For white women, the life expectancy was 80.5 in 2003 and 80.3 in 2002.²

We recognize that physicians should be very well compensated for the years of training that never really cease, for the long hours of work that continue through nights, weekends and holidays, and for the chronically disturbed sleep and missed family times that are a part of the profession. We know that the price paid by our health care providers is very high, and the suicide,³ divorce,
and substance abuse rates among physicians confirm this premise. Shockingly, it is reported that this country loses the equivalent of one medical student class per year due to physician suicide,³ and substance abuse is estimated to affect one in six medical residents.⁴

Physicians believe that their present and future income is at risk and that they must practice under conditions that compromise their professional life. They attribute these problems, in large part, to our legal system and the lawyers who drive it. A major “disconnect” between physicians and patients exists. Patients and their lawyers often do not realize the plight of physicians who are caught in a constant battle to survive the pressures of practice. On the other hand, patients and their lawyers could well argue that physicians do not understand the inherent unfairness of having to accept a negligently inflicted life-altering injury that could have been readily avoided. All have a common goal: To have the best possible patient outcomes; yet, so far, with rare exceptions, we have not been able to work together to find the best way to accomplish that goal. We have no Saint Anthony of Padua to facilitate understanding and mediate conflicts, and therefore the competing interests continue to collide unchecked.

Because health care is valued by all, we must continuously examine our legal system to assure that it is fair and just and not a detriment to good health care. We must ask the following questions:

Few special interest groups or industries have consistently voiced opposition to the current civil justice system. Chambers of commerce, associated industries, and other pro business entities have regularly lobbied for certain legislation and opposed other measures that could affect businesses. However, there has been no consistent agenda of specific reforms/changes that have been advocated by these groups. The American medical profession, however, has been vocal in the last 35 years about its opposition to the American medical negligence justice system. As an industry, health care professionals have declared on multiple occasions that a crisis exists in American health care.

The phrase, “malpractice crisis,” recently reared its ugly head after a fairly stable medical-legal world since the problems of the 1970s and 1980s. Close attention has been paid by professional medical and legal associations, consumer groups, insurance specialists, actuarial companies, state legislatures, and federal agencies to determine whether a crisis exists, and, if so, why. Perhaps the most important question we should ask is, “what can be done about it, if such a crisis exists?”

When one refers to malpractice crisis, the implication is that physicians are being sued with greater frequency than the norm, with claims based on more questionable grounds than usual, resulting in both greater payouts of insurance benefits and the unavailability of affordable medical liability insurance coverage. It is difficult to evaluate all the components accurately, but the irrefutable fact is that, in recent years, some physicians have been unable to obtain adequate professional liability coverage at an affordable price. However, the American Society of Anesthesiologists Committee on Professional Liability announced in its annual survey of premiums that the 2005 premiums for anesthesiologists were essentially unchanged from the 2004 premiums ($20,572 average in 2005; $20,611 in 2004). Between 2002 and 2004, however, the premiums increased an average of >30% for anesthesiologists.⁵

That component alone may be sufficient to justify some type of intervention on behalf of anesthesiologists; however, determining what that intervention might be would be quite a difficult task.

Presently, no adequate long-term solution has been proposed. Until a remedy is in place, physicians can gain a great deal of benefit by understanding the legal system. Lore and exaggerated horror stories are too often repeated and gradually assume the status of truth. Misapprehension of the system can obviously result in a flawed analysis of any given legal situation. Knowledge of the system is empowering and will help physicians to be effective self-advocates.

Legal claims cannot be brought merely because an adverse medical outcome occurred. Some states have statutes prohibiting legal claims based solely on a bad outcome. For example, Florida Statute Sec.766.102(3) provides that “the existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by
the health care provider.” In other words, the plaintiff or claimant must demonstrate by some means, other than the bad outcome, that a legal duty was breached which caused harm.⁶

The sole exception occurs when the theory of “Res Ipsa Loquitor” (the thing speaks for itself) can be applied. Although rarely available in medical negligence cases, when it is applied, expert testimony is still generally provided to show that the injury typically does not occur in the absence of negligence. To use the theory, the plaintiff must also show that the instrumentality responsible for the harm was in the exclusive possession of the health care provider, and the patient is without responsibility for the injury. Leaving medical instruments in the patient’s body following a surgical procedure is an example in which res ipsa loquitor may be appropriate. The jury can still find that the standard of care was not breached even when the theory of res ipsa loquitor is used. Although it is true that most client inquiries about medical malpractice occur because of a bad result, numerous procedural, evidentiary, and statutory protections are in place to protect against claims being brought solely on that basis.

A legal claim for medical negligence requires that several independent elements be demonstrated:

Failure to prove each of the elements can result in the dismissal of a medical negligence claim. Although the elements sound simple and straightforward, failure to analyze each element will permit some claims to go forward which technically should not. For example, some medical experts opine about how a particular medical procedure should be done. However, such an opinion is totally irrelevant to medical negligence litigation and should not be presented to a jury. The only relevant proof for the jury is the standard of care in the community during the subject time frame—that is, what a reasonable and prudent health care provider would do under similar circumstances.

Community for purposes of medical negligence claims most often refers to the “national” medical community rather than a specific locale, although the circumstances in which the care is provided can be taken into account. A small community hospital without magnetic resonance imaging (MRI) capability would not be expected to have the same diagnostic standards as a sophisticated tertiary care center with all the latest imaging modalities. Yet, physicians practicing at the two facilities would each be expected to diagnose the same illnesses. There is no excuse for one at a smaller rural hospital to have diagnostic skills that are lesser than a physician at a large urban hospital.

Some physicians may have practices that exceed or fall below the community standard of care, which changes over time. The defendant physician in a medical negligence case should understand the significance of the standard of care as it applies to his or her case. For example, if the standard of care is to order a computerized tomographic (CT) scan and plain film in the emergency department to evaluate an acute abdomen, the emergency room (ER) physician cannot be held liable for failing to also order a MRI, even if the MRI would have revealed the problem. A plaintiff may offer expert testimony to show that MRI was available, that it could have been readily performed with minimal risk, and that it would have yielded a diagnosis and led to effective treatment. Such testimony could be compelling and result in an adverse verdict for the physician; however, it should not be heard in the courtroom.

What an extraordinary physician does, or what the standard of care used to be, or has evolved to be since the incident, should not be a part of the evidence that the jury considers.

In Linn vs. Fossum,⁷ the defendant physician offered the testimony of an “extraordinary” expert witness who performed above the standard of care. Her method of practice was not offered to show what the defendant physician should have done. Instead, she testified that the standard of care was less than what she typically did in her practice. She opined that the defendant physician complied with the standard of care that other physicians in the field follow.

The plaintiff’s lawyer attempted unsuccessfully to preclude the testimony. The jury apparently understood the distinction between the standards practiced by an extraordinary physician and the lesser standard that was regularly practiced by physicians in the same circumstances as the defendant physician. The jury ruled that the physician met the applicable standard of care.

Interestingly, review was granted by the Florida Supreme Court about this method of proof by the defendant physician. The plaintiff claimed that the defendant improperly acted as a conduit for the admission of opinions of nonwitnesses and that she was prejudiced by her inability to cross-examine the physicians with which the “extraordinary” physician expert conferred to determine the applicable standard of care. She also challenged the ability of the defendant physician to offer the testimony of an expert who does not adhere to the standard of care in the expert’s own practice. No final opinion has been issued by the Court, but the general proposition—that a physician should be judged by the applicable standard of care followed by similar health care providers under similar circumstances—is certain to remain intact.

The physician’s attorney must properly identify the differences between mere opinions, matters of “judgment” that are discretionary from physician to physician, and true standards of care. A defendant physician should be held liable only for violations of the standard of care. Determining which, if any, of the opinions constitute standard of care must be determined before the evidence is heard in open court. If a judge erroneously permits the evidence, it is critical that the physician’s attorney makes
the proper objections on the record and preserves the issue for the appellate court. Untimely or unstated objections are generally viewed as waived by appellate courts.

The flip side of this issue arises when objective proof reveals a breach in the standard of care, which resulted in loss to the claimant. In some instances, the physician’s attorneys and insurance carrier either fail or refuse to acknowledge that the physician has any substantial liability, perhaps because the possible award to the claimant may exceed the physician’s applicable insurance coverage.

Another essential component to a medical negligence claim is the presence of documented damage. The burden of proving the damage is on the plaintiff. Simply because a plaintiff may require future surgeries or may be unable to work is not enough for the jury to award damages for those losses. In addition, in nearly every jurisdiction, even the loss of a chance of incurring those losses is not sufficient to support a claim for medical negligence. Such a loss is deemed too speculative, as an undetermined loss in the future is just as likely not to occur as to occur. If the plaintiff cannot prove by the greater weight of the evidence that he would have had a better outcome with reasonable care, as opposed to an improved chance for a good outcome, the case must be dismissed. However, dismissal is not self-executing. The physician’s attorney must present the issue to the court by a motion for summary judgment or other appropriate dispositive motion.

Other aspects of medical malpractice litigation, which are often seen, include:

An inherent conflict exists between the physician, the insurance-retained attorney for the physician, and the insurance company. That is not to say that the attorney and carrier will always abdicate their responsibilities to the physician. This is certainly not the case. However, it is in the physician’s best interest to recognize that the physician’s role in litigation is not necessarily consistent with that of the defense attorney and carrier.

Physicians are free to obtain independent personal counsel for the physician’s protection during the pendency of litigation at the physician’s expense. When a physician is facing what could potentially result in a judgment in excess of applicable insurance coverage, a personal attorney can help the physician avoid an excess judgment and assure that the insurance carrier acts in good faith in the handling of the claim; that is, the personal counsel can demand that a proper defense is mounted and that settlement efforts are made if the case should be settled before trial. In instances where the physician has learned, after an excess judgment has been rendered, that his carrier did not act in good faith, the physician may still be able to avoid paying personally for the judgment. Some states allow a resolution for the physician and/or the injured patient against the carrier based upon a theory of insurer bad faith. Bad faith may be founded on common law contract and tort principles or statutory rights, and it binds an insurance carrier to act fairly and honestly in the handling of claims for its insureds or to bear the financial losses caused by its failure to act in good faith.

Ultimately, only the physician faces the jury and must abide by the jury’s ruling. The insurance carrier is not a party to the legal case and has limited liability, and the insurance-retained attorney has no financial stake in the outcome of the trial. In the case summary at the introduction of this chapter, four of six defendants (the surgeon, the Chief of Anesthesiology, the attending anesthesiologist, and the hospital) all gave consent and settled at mediation for $1.65 million. The consulting internist and the consulting ENT surgeon each gave their consent for settlement, but their liability insurance carrier refused to offer anything to get the claims against them settled and released. The plaintiffs had three qualified experts who were highly critical of their respective care and treatment of the patient that proximately resulted in her death. The defendant physicians wanted the case settled, but the carrier was intent on “rolling the dice” with their economic well-being. As a result, the case proceeded to trial against the two nonsettling defendants. After an emotional two-week jury trial, the jury returned a unanimous verdict against the consulting internist for $2.92 million. No liability was found against the ENT surgeon. The plaintiffs had offered to settle with the two remaining defendants for $150,000 at the original mediation and again at a second court-ordered mediation.

The carrier for medical malpractice insurance coverage undertakes two duties:

In most instances, the insurance carrier retains the right to hire a defense counsel of their choice. The carrier will assign the defense of the case to a lawyer or law firm on their “approved list.” The defense attorney and firm may be reliant on the insurance carrier as a major source of their annual billings. From an ethical standpoint, the physician is the client. From a practical standpoint, however, the defense counsel’s allegiance may be tilted in favor of the entity that is paying his or her fee bills each month—the insurance carrier. Physicians should be aware that this financial allegiance can make it difficult for some insurance defense attorneys to demand that the insurance carrier pays money to settle the case, thereby ensuring the physician’s financial protection from an adverse jury verdict.

Neither the insurance defense counsel nor the insurance carrier should roll the dice with the physician’s financial future if the circumstances are such that reasonably prudent persons in the conduct of their own business affairs would try to get the case settled for an amount up to and including the policy limits.

Sometimes, the insurance carrier, or even defense counsel, will try to persuade the physician to withdraw the consent to settle the case. In most medical malpractice insurance policies, the insurance carrier cannot settle a case without the consent of the insured. By withdrawing the consent to settle a malpractice claim, the physician has effectively taken the insurance carrier off the hook for negligently failing to settle a claim within policy limits. The insurance carrier cannot be faulted for failing to settle a claim when their hands are tied through a lack of consent to settle. A wise defendant physician never agrees to withdraw his or her consent to settle a case without an agreement, in writing, in which the insurance carrier agrees to pay the entire judgment, plus interest, in the event of an adverse jury verdict. Stated simply, if the carrier talks the physician out of giving the consent to settle, thereby making any settlement impossible, the carrier should be willing to indemnify the physician for the entire judgment in the event that an excess jury verdict is rendered against the physician.

Physicians should consider retaining an independent counsel to monitor the case and ensure that both the carrier and defense counsel are looking out for their best interests. In a serious case that should settle, but for reluctance on the insurance carrier’s part to tender its policy limits, a board certified personal injury plaintiff’s attorney with experience in handling medical malpractice litigation can be your best friend. An experienced plaintiff’s attorney will not allow the carrier or their chosen attorneys to roll the dice with the physician’s financial well-being when the only prudent course of action is to tender the policy limits to secure a release of all claims on the physician’s behalf.

Physicians and other providers such as CRNAs and Anesthesia Assistants (AA) should be wary of the insurance representative who urges to you to “be strong” by not insisting that they settle the case on your behalf and/or by withdrawing your consent to settle and proceeding to trial. Like the police detective investigating a murder case, you have to ask yourself, Qui bono? (Who benefits—or who has a motive to commit the crime?). What is the insurance carrier’s motive by encouraging you to withdraw your consent or by urging you to proceed to verdict in a case, which you feel should settle? If the case results in a defense verdict, no harm is done. However, if the case should result in an adverse jury verdict in excess of the policy limits, you will be personally liable for that portion of the verdict, which exceeds the limits of your liability insurance coverage.