Guidelines for Risk Management in Anesthesiology

Risk management in anesthesiology applies not only to surgery but to preoperative and postoperative care as well. To help you stay abreast of the most recent developments in those areas, The Doctors Company offers the following information, which highlights common oversights and offers suggestions on how to prevent them.

Taking the following precautions may help you avoid undeserved litigation and will make any claim against you more defensible.

Record Keeping

Anesthesia records are, by necessity, abbreviated and concise. That leaves little room for detailed descriptions of unusual events. If something outside of the ordinary happens (i.e., anaphylaxis, respiratory arrest, Code Blue), it is extremely useful to have a separate narrative that details the sequence of events, documents the time as closely as possible, and records the treatment rendered. If you are ever called upon to defend your care and treatment, it is better to have a record that reads “narrow complex bradyarrhythmia unresponsive to atropine” than one saying “patient coded, resuscitation performed.” Care of the patient always comes first, and no one expects you to fill out the record during an emergency situation, but you should write the narrative, with times and dates, while events are fresh in your mind.

When an untoward event occurs, there is the tendency to want to make sure your anesthesia record is perfect. Do not make alterations after the fact. One anesthesiologist, after a patient’s respiratory arrest, decided to rewrite his anesthesia record and threw the first copy into the trash. When the case became a malpractice claim, the first copy was produced by the surgery center, thereby casting doubt on the anesthesiologist’s veracity and motives. Similarly, it is unwise to chart ahead or write notes in advance. Subsequent events may not correspond to what you have written.

Informed Consent

Many anesthesia malpractice cases require settlement because the records include no evidence that the patient gave informed consent. Patients often testify that they do not recall their anesthesiologists discussing any risks. The frequent use of amnestics as premedication, given shortly after the preoperative interview, is one possible explanation. Often, there is no third-party witness to the interview, and the anesthesiologist will have only a written record of the informed-consent process. What is surprising, however, is that many anesthesia records omit this important notation. Your documentation need not be extensive: “Discussed general anesthesia risks with patient, including sore throat, dental injury, pneumonia, and death.”

No patient entering surgery wants to hear about possible death. You can, however, phrase the risks in a reassuring light: “Anesthesia is becoming safer all the time. Death during surgery is extremely uncommon these days, but I need to mention this as a rare complication of anesthesia.” That advisory is important from a malpractice standpoint. Patients who have consented to the remote possibility of death will have difficulty arguing that they never would have had anesthesia had they known a dental crown could be loosened.

You should explain in advance to patients who have consented to regional anesthesia the possible need for general anesthesia. If a spinal wears off intraoperatively or a high block develops, you will not be able to gain a second consent from the patient—and attorneys pay extraordinary attention to the informed-consent process. Determine a verbal informed-consent procedure that you are comfortable with, and make sure to document in the record what you explain to the patient. For greater liability protection, The Doctors Company encourages anesthesiologists to document patient consent separately rather than rely on a surgical consent form for addressing anesthesia issues. Combining these issues inappropriately diminishes the importance and significance of the administration of anesthesia.

When a surgeon operates on the wrong limb or performs a procedure not listed in the surgical consent, the anesthesiologist is usually named if a malpractice case results. State laws vary as to how much legal responsibility the anesthesiologist actually has for surgical procedures. Still, the best defense against a malpractice case is prevention. Verifying a patient’s identity and reading the surgical consent take less than a minute. Taking that time can save you, the surgeon, the nurses, and the hospital a considerable amount of anguish should a discrepancy arise. Make such procedures a routine part of your preoperative checks.

Dental Damage

Damage to natural teeth or cosmetic dental work causes many anesthesia claims. In addition to traumatic intubation, damage often occurs in the recovery room when patients bite down on rigid plastic oral airways.

Dental damage claims are usually settled by paying for the dental repair work. The cost escalates markedly, however, when either the patient or the anesthesiologist becomes angry. As a rule, dental injury should be mentioned as a possible risk to all patients who have consented to general anesthesia.

As with any indication of patient dissatisfaction, notify The Doctors Company if a patient has complained of possible dental injury.

Pending Tests

In the rush to start a case, an anesthesiologist often may not wait for lab values to return. You must not neglect pending laboratory tests. For nonemergency cases, all preoperative labs that could potentially change your course of action should be available and read.

One anesthesiologist had placed a patient under general anesthesia for an arteriovenous shunt placement procedure before a potassium level of eight was reported to the operating room. The patient suffered an arrest before the case could be terminated.

Obtaining the EKG result is also important. An EKG may not be available to you if it is performed at an outside office that is not open in time for a 7:30 a.m.case. It is wise, however, to secure at least a verbal report from a physician who has seen the EKG and believes it presents no problem. Even if you would not have ordered an EKG on an otherwise healthy patient, if another doctor has ordered one, you should consider the possibility that it might return reading “lateral ischemia, severe left ventricular strain.” Would that change the anesthetic technique you would use?

Remember that all lab tests and results will be on the patient’s chart when it is reviewed in a malpractice case. You may appear negligent not to have reviewed all of the information potentially available to you. The argument that “my surgeon was in a hurry to start the case” will not be well received.

Consultations

A similar caution applies to outside consultation and surgical clearances. If the surgeon states that a patient has been cleared by another physician, you should either review a copy of the dictated consult or speak to the physician involved. There may be medical information in the consult that is not available elsewhere in the chart. The consultant may have had access to old records or to history from the patient’s relatives that is not available to you. Some consultants may write things like “cleared for local standby only,” or “needs Swan-Ganz catheter monitoring.” You should address such issues before starting the case. If you do not agree with the suggestion, it is best to discuss this with the consulting physician and to document the discussion in a note: “I have discussed this case with Dr. Jones in detail, and he understands that this amputation cannot be done under local standby. He believes the patient is medically optimized for general anesthesia or spinal.” Such a note will avoid the appearance that you are acting against another physician’s advice.

Labor and Delivery

Informed consent always presents a special problem in the case of labor and delivery. Often, an anesthesiologist meets the patient for the first time when the patient is in the throes of active labor. How can the patient reasonably be expected to understand the risks of labor epidurals in such a condition? Preferably, as the anesthesiologist, you should meet the patient earlier and discuss the risks in more relaxed circumstances. Your remarks could begin: “I know you are not uncomfortable now, but you may be during your labor: I would like to introduce myself and to discuss what to expect if you decide on a labor epidural.” If such discussion is not possible, still mention the risks, however briefly, to the labor patient. Include her partner if present, and allow them to ask any questions they may have.

Patients often have misconceptions about epidurals or have heard alarming information about possible paralysis or spinal damage. While you should reassure them, avoid comments like “there is no chance of any permanent damage.”

Although rare, there have been cases where patients developed unusual neurological syndromes, including muscle weakness or autonomic dysfunction. When these cases are taken to court, the plaintiffs’ expert witnesses can often convincingly relate those problems to the epidurals. Such cases might require settlement—even without apparent negligence on the part of the anesthesiologist—if there is no evidence of informed consent.

A brief informed consent for a labor and delivery epidural patient is: “Infrequently, patients get headaches from placement of the epidural. If you do, there are treatments available. Other uncommon complications are backache, neurologic damage, or death.”

Documentation is frequently less complete in labor and delivery records than in those from the operating room, but make no mistake—they are equally important. Pertinent information about the insertion of an epidural, the interspace level used, or the absence of paresthesias is often missing from charts reviewed in malpractice claims.

The Doctors Company frequently receives questions about the provision of anesthesia services during labor and delivery. How available does an anesthesiologist need to be? Whether there is a dedicated on-call anesthesiologist for labor and delivery or the same doctor generally covers the main operating room depends on hospital policies and community standards. Regardless of your hospital’s coverage plan, be aware that the American College of Obstetrics and Gynecology has established a national guideline declaring that there should be an incision time of 30 minutes or less for emergency C-sections. That means that once an obstetrician declares that a C-section is needed urgently for maternal or fetal well-being, the patient should be ready for an incision within 30 minutes. Anesthesiologists have been faulted in malpractice cases for failure to arrive within this time period. Many anesthesiologists have the misconception that they cannot be sued for not being available if they have never met the patient. If you are responsible for covering labor and delivery and do not respond in a timely fashion, you may be held responsible for the delay of a C-section. The argument that the surgeon could have done the surgery under a local anesthetic may not relieve you of responsibility.

Postspinal Headaches

Wet taps and postspinal headaches are an increasingly common cause of malpractice claims. Patients with such complaints often are angry about not receiving appropriate care when they complain about postprocedure headaches. Patients who receive prompt treatment, such as IV fluid and blood patches, are less likely to sue.

Discuss the possibility of a wet tap with your patient before discharge if you think he or she may have unintentionally received one. Give the patient a phone number to contact you or another anesthesiologist should additional treatment be required.

Make sure your anesthesia department has a procedure for blood patching for postspinal headaches should your patient require treatment after leaving the hospital. Check to be sure that the on-call anesthesiologist will take responsibility if you are unavailable. A patient who has to make multiple phone calls or who gets a large hospital bill for the blood patch is more likely to consider legal recourse. Most hospitals will provide space in labor and delivery or in the recovery room at no charge.

Conclusion

Even in the most conscientious of practices, it is not always possible to prevent being sued. Remember, in the event of a lawsuit, your best defense will be an accurate and detailed written record. You can protect yourself from undeserved liability if you routinely remember to obtain informed consent from your patients and to keep written documentation of all your activities related to each case.

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