Failure to properly supervise
The following closed claim study is based on an actual malpractice claim from TMLT. This case illustrates how action or inaction on the part of physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician's defensibility. An attempt has been made to make the material less easy to identify. If you recognize your own claim, please be assured it is presented solely to emphasize the issues of the case.
Presentation
A one-year-old child was admitted to a community hospital on February 18 for an adenoidectomy and bilateral tympanostomy. The child's father signed the anesthesia consent form which stated, "I hereby consent to the anesthesia service checked above and authorize that it be administered by Dr. A or his/her associates, all of whom are credentialed to provide anesthesia services at this health facility."
Anesthesia was provided by a Certified Registered Nurse Anesthetist (CRNA) — an employee of Dr. A's professional association — and a student training as a CRNA under an agreement between Dr. A, the hospital, and the university where the student was enrolled.
Physician action
The student and CRNA commenced anesthesia at 7:20 a.m. and ended at 8:30 a.m. Intravenous fluids of 450 cc of D5LR were infused during the procedure. There was no fluid output recorded. At the conclusion of the procedure, the patient was extubated by the student under the direction of the CRNA. Upon extubation the child exhibited signs of laryngospasm and his oxygen saturation dropped into the 30s. The student applied a chin lift and gave oxygen by mask and the laryngospasm ceased within one minute; however, the child continued to show evidence of shallow respirations. The CRNA testified that the child's oxygen level remained high when oxygen was given, but would drop when the mask was removed.
The child arrived in the Post Anesthesia Care Unit (PACU) at 8:35 a.m. and was initially described as pink in color; however, quickly became dusky around the lips. He was reintubated at 8:40 a.m. An IV of Ringers Lactate was started for fluid management. PACU records indicated the child received 500 cc of D5LR intraoperatively and 125 cc of additional IV fluids and medications. Urine output in the PACU was 355 cc. A chest x-ray revealed diffuse density over both lung fields, consistent with volume overload or possible aspiration. Dr. A was paged and arrived in the PACU at 8:50 a.m. He ordered Lasix for diuresis to improve the child's pulmonary edema and immediately arranged for transfer to a children's hospital.
Arterial blood gases (ABGs) were drawn at 8:45 a.m. and 9:50 a.m., both showing critically low PO2 and low oxygen saturations in the 80s. A second chest x-ray, taken about 9:35 a.m. showed improvement, but with new right upper lobe and perihilar infiltrates. The child was admitted to the children's hospital, sedated, and placed on a ventilator. His pupils were 2 mm and reactive; however, all four extremities were hypotonic. A chest x-ray taken at 1 p.m. showed the lungs were clear.
The child self-extubated at 11 p.m. the same day, and the attending ICU medical residency fellow elected not to reintubate. During the night, his respiratory rate went from 36 at 12 a.m. to 95 at 8 a.m. At 8:25 a.m., the child experienced acute decompensation. He was reintubated, requiring sodium bicarbonate to correct a pH of 6.9 (normal 7.35-7.45) and a base deficit of 19 (normal ± 3 mEq/l). He subsequently developed a pneumothorax and pneumomediastinium requiring a chest tube and mediastinal tube. His oxygen saturations stabilized; however, he developed severe hypotension with poor perfusion.
A cardiology consult was obtained and revealed an enlarged right atrium and right ventricle, consistent with chronic pulmonary hypertension. On February 23, he developed seizure activity of two to three minutes duration that resolved spontaneously. CT scan of the head revealed diffuse cortical, subcortical and cerebellar edema, as well as infarctions of the posterior left frontal lobe, left parietal lobe, and occipital lobes. It was thought that these changes represented an injury either during the severe pulmonary hypertensive crisis or during the surgery.
An EEG performed on February 25 revealed severe injury to the brain with moderate voltage slow waves consistent with irreversible injury. An MRI was performed on February 28. It revealed cortical and subcortical cerebral edema, consistent with a generalized anoxic-ischemic insult. The child's neurological status slowly improved and he was extubated on March 1. He was discharged to a children's rehabilitation facility on March 14 where he remained for one month. At the time of discharge, neurological status included seizures, decreased vision, bilateral absence of visual evoked potentials (suggesting severe dysfunction along the visual pathways), and physical limitations resulting from moderate to severe encephalopathy.
Allegations
A lawsuit was filed against the anesthesiologist. The allegations were primarily focused on Dr. A's professional association and included:
- allowing a non-credentialed student to administer anesthesia without proper supervision;
- failure to obtain appropriate informed consent related to administration of anesthesia by a student; and
- vicarious liability for the actions of the CRNA and the student.
Legal implications
The legal concept of vicarious liability allows liability to be extended beyond the original defendant to persons or entities who have not committed a wrong, but on whose behalf the defendant acted. Vicarious liability is based on the historical legal doctrine of "respondeat superior" — let the master answer for the torts (civil wrongs) of his servants. The CRNA in this case was an employee of the PA and the anesthesiologist was vicariously liable for her actions or omissions.
Three defendant anesthesiology consultants were generally critical of fluid management by the CRNA and the student during surgery; however, they questioned whether the fluid overload was sufficient to cause pulmonary edema. The consultants were also critical of the delay in reintubating the child following the laryngospasm, and that Dr. A was not contacted for assistance when the laryngospasm occurred. All the consultants were critical that Dr. A was not in the operating room or in the operating suite during the procedure. Two of the consultants questioned whether the injury occurred at the community hospital or after the child self-extubated at the children's hospital.
Expert testimony in this case supported the general care and treatment given by the CRNA, the student, and Dr. A. However, it was difficult to obtain support for the informed consent issue since the non-credentialed student provided anesthesia under the supervision of a CRNA, without the presence of Dr. A, who was designated as the clinical instructor for the student. The plaintiffs retained credible experts who were critical of the medical care, as well as the informed consent process, specifically a student administering anesthesia.
During her deposition, the student testified that she provided 80% of the anesthesia under the supervision of the CRNA. She further testified that she did not consider herself one of Dr. A's associates and, in her opinion, the family should have been advised that a student would be providing the majority of the anesthesia.
Disposition
This is an unfortunate case, resulting in a neurologically impaired young child, including physical limitations on the right side and visual impairment. The child requires continued physical, occupational, and speech therapy. Past medical expenses, future life-care needs, and future loss of wage-earning capacity are significant. The claim was settled on behalf of Dr. A and his professional association.
Risk management considerations
More frequently, anesthesiologists are practicing within an anesthesia care team model, whereby anesthesia is administered by a non-physician provider under the supervision of an anesthesiologist. The American Society of Anesthesiologists (ASA) has developed recommendations for the scope of practice of nurse anesthetists. (1) In these situations, " . . . the anesthesiologist concurrently medically directs two, three or four nurse anesthetists and/or anesthesiologist assistants in the performance of the technical aspects of anesthesia care. Anesthesiologists engaged in medical direction are responsible for the pre-anesthetic medical evaluation of the patient, prescription and implementation of the anesthesia plan, personal participation in the most demanding procedures of the plan (including induction and emergence), following the course of anesthesia administration at frequent intervals, remaining physically available for the immediate treatment of emergencies and providing indicated postanesthesia care." (1)
"Although selected tasks of overall anesthesia care may be delegated to qualified members of the Anesthesia Care Team, overall responsibility for the Anesthesia Care Team and the patients' safety rests with the anesthesiologist." (2)
All consultants were critical of Dr. A. for his alleged failure to follow the ASA recommended scope of practice and for his failure to be physically available in the hospital or operating suite to provide immediate treatment during the emergence phase of anesthesia. Additionally, one might question whether the student was a "qualified member" of the anesthesia care team, as described in ASA Statement of the Anesthesia Care Team, and question whether the administration of anesthesia should have been delegated to her.
The Texas Occupations Code specifically states, " . . . a physician may delegate to a certified registered nurse anesthetist the ordering of drugs and devices necessary for the nurse anesthetist to administer an anesthetic or an anesthetic-related service ordered by the physician." (3) Therefore, Dr. A was in violation of the code by delegating the administration of anesthesia to a non-credentialed student, and/or allowing supervision by the CRNA.
The case illustrates the importance of the availability of anesthesiologists to non-physician personnel administering anesthesia under their supervision. With the integration of the anesthesia care team model into our health care system, it is important for anesthesiologists to adhere to ASA standards and Texas statutes regarding delegation of responsibility.