February 15, 2016

Being sued by a patient who had a poor outcome is one of the more unpleasant experiences most doctors can contemplate.  The impact of a malpractice lawsuit can be potentially devastating to one’s financial, professional and personal well-being.  But it is not often that bad.  In a survey conducted by Medscape among 4,000 physicians (Peckham C. Medscape Malpractice Report 2015:  Top Reasons Doctors Get Sued—Anesthesiologists.  January 22, 2016), the responding anesthesiologists reported that trial resulted in a verdict for the plaintiff in only two percent of cases.  Another 33 percent were dismissed either by the court or by the plaintiff.  Twenty-four percent were dismissed from the suit either before any depositions were taken or within the first few months.  Forty-one percent settled before reaching the verdict stage, and 10 percent resulted in a verdict in the anesthesiologist’s favor.

Malpractice litigation usually ends in the anesthesiologist’s favor or with a settlement that is considerably less than the amount of damages sought in the “complaint,” the document that launches the lawsuit.  Most anesthesiologists will face a malpractice suit during their careers, nevertheless.  Among the respondents to the Medscape survey, 62 percent of men and 42 percent of women had been sued, usually with other co-defendants.  The reason for the gender-based difference may be that more male anesthesiologists have been in practice for longer periods of time; 100 percent of respondents aged 70 or older had been named in at least one lawsuit.

Anesthesiologists are more likely to be sued in the West (CA, HI, AK) and the Southeast (SC, GA, FL, AL, MS, TN, KY) and least likely in the Southwest (AZ, UT, CO, NM, NV).

Win or lose, being sued is going to cost the defendant anesthesiologist a lot of valuable time.  Thirty-seven percent spent more than 40 hours preparing for trial.  Thirty-six percent spent more than 50 hours in court.  Fifty-nine percent of case lasted for 0-2 years, but 41 percent lasted three years or more. 

The harm most commonly alleged was “patient suffered an abnormal injury (47 percent)” ranging from loss of life to dental damage.  Failure to diagnose was second, at nine percent.  Errors in medication administration and “poor documentation of patient instruction and education”—both are the subject of various active quality measures—tied at four percent.

Medscape references a 2011 JAMA study that “reported that 48 percent of paid claims were for events in inpatient settings, 43 percent in outpatient settings, and nine percent in both.  Suits in the outpatient settings were more likely to be due to diagnostic issues and surgical errors were more often the cause in the inpatient setting.”  (Bishop TF, Ryan AM, Casalino LP. Paid malpractice claims for adverse events in inpatient and outpatient settings. JAMA. 2011;305:2427-2431.)  Those proportions were rather different over the nine year period (2005-2013) for which Richard J. Kelly, MD, JD, MPH, FCLM, an anesthesiologist from the University of California, Irvine School of Medicine, examined the change in outpatient anesthesia-related malpractice payments with a comparison of important inpatient and outpatient malpractice claim characteristics: payment size, patient demographics and clinical outcome, presenting his study as abstract A2097 at the 2015 ASA Annual Meeting.  Overall spending on anesthesia-related claims, Dr. Kelly noted, had decreased by $83.3 million, or 41.4 percent. 

Using National Practitioner Data Bank data, Dr. Kelly found that of the 2,408 payments made by anesthesiologists during the period studied, 567 (23.5 percent) were for outpatient events and 1,841 (76.5 percent) were for inpatient events. (Doyle C.  Medical Malpractice Claims against Anesthesiologists Decrease and Shift to Outpatient Anesthesia Services.  Anesthesiology News, December 7, 2015.)  While the proportion of outpatient claims increased along with the number of cases being done in outpatient departments or surgery centers, the amounts paid for those outpatient claims remained significantly lower ($189,349 vs. $261,742). 

If the number of anesthesia-related claims from inpatient procedures has been decreasing, another team of researchers led by Karen B. Domino, MD, MPH, professor of anesthesiology at the University of Washington, reported at the same ASA Annual Meeting (Abstract A1009) that they are more frequent than claims from events occurring in non-operating room (OR) locations—but that payments are both greater and more likely in non-OR claims than in those coming from the general OR.  The non-OR cases in the study had a higher mortality rate as well.  (Vlessides M.  Claims Payments and Mortality Higher in Non-OR Settings.  Anesthesiology News, November 3, 2015.)

Dr. Domino et al. compared anesthesia malpractice claims for events occurring in gastroenterology, cardiology and radiology procedure rooms between 2000-2012, that were reported to the Anesthesia Closed Claims Project, with the much larger National Anesthesia Clinical Outcomes Registry (NACOR) database. 

Anesthesia care was more commonly assessed as substandard in non-OR claims (66 percent) than those from the general OR (44 percent; P=0.001). Payment was also more common in non-OR claims (72 percent vs. 57 percent; P=0.014) and were [sic] significantly greater (median $554,000 vs. $285,000; P=0.003).

Contributing to the substandard quality of the care in non-OR settings was the observed lack of properly-functioning pulse oximeters or end-title capnography monitors or advanced airway devices.  The researchers “found that respiratory events were significantly more common in non-OR locations (53 percent vs. 23 percent; P<0.001).  Inadequate ventilation or oxygenation occurred in one-third (31 percent) of non-OR claims.  What’s more, in a full 35 percent of non-OR claims, the injury was deemed to be ‘possibly,’ ‘probably’ or ‘definitely’ preventable by better monitoring (compared with 17 percent in general OR claims; P=0.001).”

Thus the shift of surgical cases from general ORs to outpatient facilities appears to have been accomplished without any decrease in safety, which suggests appropriate selection of both patients and procedures for outpatient surgery, in addition to constantly improving technology.  In contrast, the non-OR procedure rooms to which cases have migrated from the general OR have a relatively poorer track record, based in part on less reliable monitoring equipment and sometimes dark rooms with interruptions and other distractions that prevent the anesthesiologist from noticing that the patient has inadequate ventilation. 

For various reasons—not least of which is the increasing age and fragility of many surgical patients—there will continue to be adverse outcomes and malpractice claims.  Consider the advice of the Medscape survey respondents:

As with much of the guidance presented in these eAlerts, we hope that you will not have occasion to use it—but if you do, you will know where to find it.

With best wishes,

Tony Mira
President and CEO