Interesting malpractice verdict

[bogatyr]

Somehow I got signed up for "Becker's ASC Review," which plagues my junk mail folder daily. I did happen to notice this tidbit however:

Jury finds anesthesiologist, North Star Anesthesia liable in man's death — Awards family $1M

From a link in the article:

Jury awards family $1 million in civil suit

I'm not sure how reliable is a source called "The Vindicator." My googling skills are unable to find anything more about this case.

Is anyone in NE Ohio familiar with this case? Or does someone have access to court filings to figure out what the claim was? I'm wondering how the anesthesiologist could be held liable for an airway event 2 days post-op? The only thing I can think was that the patient remained intubated post-op and something happened at extubation.

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[Ronin786]

Emergent intubation gone wrong?

 

[chocomorsel]

Need more details. But I am glad NorthStar lost a lawsuit.

 

[Modanq]

2 days after the surgery?

 

[Man o War]

I’m wondering if this is an intensivist. If he had anesthesia training first, they’re probably just calling him an anesthesiologist.

 

[NightNight]

Makes me wonder if the guy had severe OSA and wasn’t placed on continuous SpO2 or EtCO2 monitoring on the floor. Two days after is an eternity to pin it on the anesthesiologist, but we have automatic post-op order sets for anyone flagged as even suspected OSA during pre-op to prevent exactly that possibility.

 

[kidthor]

I pulled the court documents... not all of them were available. Note a CRNA was involved.

The patient had an MVA, presented to the ED, then had a hip reduction in the OR. They then returned to the OR two days later for hip ORIF. A CRNA cared for the patient in the OR. The CRNA extubated the patient (it seems like she extubated the patient without the attending anesthesiologist present). The patient went into immediate respiratory failure (in the OR), there were issues with re-intubtion, the patient arrested and then had anoxic brain injury, then death later in the ICU.

The anesthesiologist, hospital, and Northstar were included in the judgment via vicarious liability.

 

[deleted547631]

The anesthesiologist, hospital, and Northstar were included in the judgment via vicarious liability.

 

[Mad Jack]

I love how the CRNA isn't even mentioned

 

[NightNight]

Jesus

 

[Man o War]

Awful for the patient, but Northstar always runs too lean IMO at any location I’ve seen. Too much CRNA autonomy and not enough anesthesiologist involvement.

 

[NightNight]

I pulled the court documents... not all of them were available. Note a CRNA was involved.

The patient had an MVA, presented to the ED, then had a hip reduction in the OR. They then returned to the OR two days later for hip ORIF. A CRNA cared for the patient in the OR. The CRNA extubated the patient (it seems like she extubated the patient without the attending anesthesiologist present). The patient went into immediate respiratory failure (in the OR), there were issues with re-intubtion, the patient arrested and then had anoxic brain injury, then death later in the ICU.

The anesthesiologist, hospital, and Northstar were included in the judgment via vicarious liability.

You got a link?

 

[NightNight]

Ok. Now I’m confused. Because when I pulled court records it looks like the anesthesiologist wasn’t held liable. That the jury put wrongful death only on Northstar and the CRNA. Besides the obvious tragedy and loss of life, this seems like a massive win.

 

[NightNight]

What am I missing here? This case sounds like it should be the poster child for the ASA’s “when seconds count” pitch

 

[caligas]

View attachment 231213 What am I missing here? This case sounds like it should be the poster child for the ASA’s “when seconds count” pitch

Missing nothing. CRNA plaintiffs verdict, MD exonerated, news article misstated the facts.

 

[Man o War]

I wonder if Northstar terminates the CRNA for this kind of situation?

 

[NightNight]

Missing nothing. CRNA plaintiffs verdict, MD exonerated, news article misstated the facts.

Yeah, not sure what’s more annoying, that the news article is telling it’s readers an anesthesiologist was at fault, or that they don’t even know the difference

 

[caligas]

I wonder if Northstar terminates the CRNA for this kind of situation?

Promote to management

 

[kidthor]

Yep - pardon my earlier error. The verdict is purely against the crna and norhstar. I had read an earlier summary judgment document that merely allowed for vicarious liability (but didn’t assign it).

So yeah the jury found pure crna negligence.

 

[deleted162650]

Can somebody with more legal savy than myself explain how Northstar can be found both liable with the CRNA and not liable with the MD?

 

[Vandalia]

Can somebody with more legal savy than myself explain how Northstar can be found both liable with the CRNA and not liable with the MD?

Because that is exactly what they found. An employer is generally liable for the actions of an employee.

With respect to the anesthesiologist, they found him not liable, therefore the employer was also not liable as to his/her actions.

With respect to the CRNA, they found him/her liable, therefore the employer was also liable with respect to the CRNA's actions.

They are technically different defendants.

I think the mistake you are making is thinking that a decision against the employer is based on evaluating the evidence of what the employer actually did. In fact for the organization it is very simple: 1) Was the employee negligent? 2) Was the employee acting in the scope of his/her employment? If the answer to both is yes, then the employer is liable for damages.

It is based on a legal concept called respondeat superior - or in English, vicarious liability. The important take-away point is that this type of liability exists only in an employment relationship. If the anesthesiologist or CRNA were independent contractors, Northstar could not have been found liable. This is one reason why healthcare organizations like physicians to be independent contractors. (EDIT: The plaintiff's tried to include the hospital as a defendant under a theory called "agency by estoppel." Basically, as I understand it and I am not a lawyer, since Dr and CRNA acted as if they worked for the hospital, they should be treated as working for the hospital. This claim was rejected by the judge.)

Hopefully this works for the case information: https://ecourts.mahoningcountyoh.go...O5RQbiujAiOHI2-WlS11g5EwGZek9mirP2S2IjVpEsSJw

EDIT: After a deeper dive into the documents, the Anesthesiologist, WAS found by the jury to be negligent, by - in their words - "Dr. X fell below standard of care by not being present for critical moment." However, the jury then found that this was NOT a "direct and proximate cause of the patient's death." Therefore, neither he - nor his employer - was liable for damages.

The CRNA was found negligent by the jury - in their words - "due to inaccurate and conflicting documentation along with failure to request assistance form her superior Dr. X." This WAS found to be a "direct and proximate cause of the patient's death."

Takeaway from a non-anesthesiologist: Documentation, documentation, documentation. And - at least for this jury - you will be found negligent for not being present for a critical portion of a case even if you are not informed of that fact by the CRNA.

 

[pgg]

Awful for the patient, but Northstar always runs too lean IMO at any location I’ve seen. Too much CRNA autonomy and not enough anesthesiologist involvement.

The locums job I quit after 4 days was a Northstar site. All I did was put my name on charts while CRNAs did cases. The final straw was when I told them not to book a patient with an ICD at the freestanding ASC and they did it anyway. I was a fireman but I couldn't even be a gatekeeper.

 

[Man o War]

The locums job I quit after 4 days was a Northstar site. All I did was put my name on charts while CRNAs did cases. The final straw was when I told them not to book a patient with an ICD at the freestanding ASC and they did it anyway. I was a fireman but I couldn't even be a gatekeeper.

Jesus.
The last locums AMC place I worked, 2 separate CRNAs gave so many narcs that 2 of the young, healthy patients almost ended up with an overnight stay (and one in the ICU!) for what was supposed to be same day surgery. Absolutely abysmal. Same deal, docs running around like firefighters with no time to watch what these nurses were doing.
I left after that day and swore I'd never be back in that situation again.

 

[NightNight]

Because that is exactly what they found. An employer is generally liable for the actions of an employee.

With respect to the anesthesiologist, they found him not liable, therefore the employer was also not liable as to his/her actions.

With respect to the CRNA, they found him/her liable, therefore the employer was also liable with respect to the CRNA's actions.

They are technically different defendants.

I think the mistake you are making is thinking that a decision against the employer is based on evaluating the evidence of what the employer actually did. In fact for the organization it is very simple: 1) Was the employee negligent? 2) Was the employee acting in the scope of his/her employment? If the answer to both is yes, then the employer is liable for damages.

It is based on a legal concept called respondeat superior - or in English, vicarious liability. The important take-away point is that this type of liability exists only in an employment relationship. If the anesthesiologist or CRNA were independent contractors, Northstar could not have been found liable. This is one reason why healthcare organizations like physicians to be independent contractors. (EDIT: The plaintiff's tried to include the hospital as a defendant under a theory called "agency by estoppel." Basically, as I understand it and I am not a lawyer, since Dr and CRNA acted as if they worked for the hospital, they should be treated as working for the hospital. This claim was rejected by the judge.)

Hopefully this works for the case information: https://ecourts.mahoningcountyoh.go...O5RQbiujAiOHI2-WlS11g5EwGZek9mirP2S2IjVpEsSJw

EDIT: After a deeper dive into the documents, the Anesthesiologist, WAS found by the jury to be negligent, by - in their words - "Dr. X fell below standard of care by not being present for critical moment." However, the jury then found that this was NOT a "direct and proximate cause of the patient's death." Therefore, neither he - nor his employer - was liable for damages.

The CRNA was found negligent by the jury - in their words - "due to inaccurate and conflicting documentation along with failure to request assistance form her superior Dr. X." This WAS found to be a "direct and proximate cause of the patient's death."

Takeaway from a non-anesthesiologist: Documentation, documentation, documentation. And - at least for this jury - you will be found negligent for not being present for a critical portion of a case even if you are not informed of that fact by the CRNA.

I think this case proves that a jury can be made to understand that if a CRNA doesn’t call the anesthesiologist for emergence, then whatever happens at emergence should be hung on the CRNA, not the anesthesiologist.
I mean, effectively, that’s what this jury concluded. Yes, the anesthesiologist was negligent by not being there, but that negligence was directly the result of the CRNA not calling him at the time of emergence. Now, this will vary from jury to jury to be certain. As for this specific location, prob the best thing to ever happen to those docs, because this judgement gives a wake up to those CRNAs that they can’t f uck up and then just blame the anesthesiologist.

 

[DocVapor]

I think this case proves that a jury can be made to understand that if a CRNA doesn’t call the anesthesiologist for emergence, then whatever happens at emergence should be hung on the CRNA, not the anesthesiologist.
I mean, effectively, that’s what this jury concluded. Yes, the anesthesiologist was negligent by not being there, but that negligence was directly the result of the CRNA not calling him at the time of emergence. Now, this will vary from jury to jury to be certain. As for this specific location, prob the best thing to ever happen to those docs, because this judgement gives a wake up to those CRNAs that they can’t f uck up and then just blame the anesthesiologist.

Anyone find any significants is the $ amount? IE would it have been $5 mil if the Anesthesiologist was found liable too? I want to know that before we call it a capital "W"

 

[Man o War]

I think this case proves that a jury can be made to understand that if a CRNA doesn’t call the anesthesiologist for emergence, then whatever happens at emergence should be hung on the CRNA, not the anesthesiologist.
I mean, effectively, that’s what this jury concluded. Yes, the anesthesiologist was negligent by not being there, but that negligence was directly the result of the CRNA not calling him at the time of emergence. Now, this will vary from jury to jury to be certain. As for this specific location, prob the best thing to ever happen to those docs, because this judgement gives a wake up to those CRNAs that they can’t f uck up and then just blame the anesthesiologist.

I wonder though, if this has to do with how they're billing. Medical direction vs supervision.....

 

[Vandalia]

I think this case proves that a jury can be made to understand that if a CRNA doesn’t call the anesthesiologist for emergence, then whatever happens at emergence should be hung on the CRNA, not the anesthesiologist.

I don't think so. If you look at the claims and the jury's reasoning (in Ohio they have to provide an explanation for their decision in a malpractice case) I think it boils down to the fact that although they found the anesthesiologist negligent for not being present for the extubation, they determined the chain of causation was broken because they CRNA should have been able to handle the extubation correctly in any event. If what you propose was correct, the jury would not have found the anesthesiologist to be negligent. Again, the anesthesiologist was found to be negligent, but was not assessed damages because the injury (death) was not a "direct and proximate result" of his negligence. IF, purely hypothetically, some other critical event occurred that was outside the CRNA's scope (a couple thousand threads have been done on this one) and the anesthesiologist was not notified, my guess is he would have been found liable for damages. Because his failure to be present would have made a difference.

 

[NightNight]

I don't think so. If you look at the claims and the jury's reasoning (in Ohio they have to provide an explanation for their decision in a malpractice case) I think it boils down to the fact that although they found the anesthesiologist negligent for not being present for the extubation, they determined the chain of causation was broken because they CRNA should have been able to handle the extubation correctly in any event. If what you propose was correct, the jury would not have found the anesthesiologist to be negligent. Again, the anesthesiologist was found to be negligent, but was not assessed damages because the injury (death) was not a "direct and proximate result" of his negligence. IF, purely hypothetically, some other critical event occurred that was outside the CRNA's scope (a couple thousand threads have been done on this one) and the anesthesiologist was not notified, my guess is he would have been found liable for damages. Because his failure to be present would have made a difference.

Well then the real “problem” is that the jury doesn’t think the presence of an anesthesiologist would have made any difference in the outcome. Which is f ucking ridiculous, but ironically highly beneficial for the doc involved.

 

[Vandalia]

Well then the real “problem” is that the jury doesn’t think the presence of an anesthesiologist would have made any difference in the outcome. Which is f ucking ridiculous, but ironically highly beneficial for the doc involved.

That is standard in malpractice defenses. All of a sudden it is like Sgt Schultz. "I know nothing, NOTHING." About ten years ago, an anesthesiologist at our hospital argued that he was not liable (but the hospital was) for failing to diagnose an intraoperative arrhythmia because the surgical tech should have picked it up and notified the surgeon to institute treatment.

When cash is on the line, CRNA's argue they can't start iv's on their own, and anesthesiologists argue that a CRNA can do everything they can. EMT's argue they are just glorified drivers and EM physicians argue that the EMT's are just as good at diagnosis.

 

[NightNight]

That is standard in malpractice defenses. All of a sudden it is like Sgt Schultz. "I know nothing, NOTHING." About ten years ago, an anesthesiologist at our hospital argued that he was not liable (but the hospital was) for failing to diagnose an intraoperative arrhythmia because the surgical tech should have picked it up and notified the surgeon to institute treatment.

When cash is on the line, CRNA's argue they can't start iv's on their own, and anesthesiologists argue that a CRNA can do everything they can. EMT's argue they are just glorified drivers and EM physicians argue that the EMT's are just as good at diagnosis.

I mean, no. I would never argue that a CRNA can do everything I can or manage unexpected outcomes as well as I can. What I would argue is that I can’t reasonably be expected to know exactly when emergence will be for four concurrently running ORs, and if the CRNA doesn’t notify me at the time of emergence, then I shouldn’t be held responsible for any adverse outcomes that occur due to their f ucking up the airway.

 

[Vandalia]

I mean, no. I would never argue that a CRNA can do everything I can or manage unexpected outcomes as well as I can. What I would argue is that I can’t reasonably be expected to know exactly when emergence will be for four concurrently running ORs, and if the CRNA doesn’t notify me at the time of emergence, then I shouldn’t be held responsible for any adverse outcomes that occur due to their f ucking up the airway.

Good luck with that. Are you being compensated to be responsible? As this case showed, if you are not present during emergence, you will be found negligent.

Whether the CRNA fails to notify you or not is legally irrelevant. You have an independent responsibility to be present for the critical portions of the case. Whether or not you have 3 other cases running does not mitigate that responsibility to that patient. That is the downside to billing for 4 concurrently running cases.

 

[NightNight]

Good luck with that. Are you being compensated to be responsible? As this case showed, if you are not present during emergence, you will be found negligent.

Whether the CRNA fails to notify you or not is legally irrelevant. You have an independent responsibility to be present for the critical portions of the case. Whether or not you have 3 other cases running does not mitigate that responsibility to that patient. That is the downside to billing for 4 concurrently running cases.

I’m being compensated to be responsible, the CRNA is being compensated to notify me when it’s times for induction and emergence. I think this case shows that a jury can find a doc “negligent” but effectively find him not liable, specifically because the CRNA didn’t notify him. I mean that’s what they wrote (and found for). It’s either that or they truly believe that the patient would have had the same outcome even if the doc had been there, which is highly unlikely.

 

[Mman]

Good luck with that. Are you being compensated to be responsible? As this case showed, if you are not present during emergence, you will be found negligent.

Could you define "emergence" for me in a legal sense? Because it doesn't mean extubation which is a related but separate concept.

 

[caligas]

Anybody that does supervision recognizes you can’t be present for every extubation. One strategy is to TRY to pick and choose which ones you’re concerned about and try to discuss them with the CRNA ahead if time (“let’s get him fully reversed and wide awake...”).

 

[MirrorTodd]

Anybody that does supervision recognizes you can’t be present for every extubation. One strategy is to TRY to pick and choose which ones you’re concerned about and try to discuss them with the CRNA ahead if time (“let’s get him fully reversed and wide awake...”).

And that's how people die and families get awarded millions of dollars.

 

[Ronin786]

And that's how people die and families get awarded millions of dollars.

It's been said around here plenty. But the second there was no accountability (by anesthesiologists or CMS or anybody) about following TEFRA rules, that was when the CRNA genie was out of the bag.

 

[deleted171991]

Anyone find any significants is the $ amount? IE would it have been $5 mil if the Anesthesiologist was found liable too? I want to know that before we call it a capital "W"

It's the maximum allowed by the state malpractice damage cap. It could have been many millions in a different state.

 

[DocVapor]

It's the maximum allowed by the state malpractice damage cap. It could have been many millions in a different state.

Gotcha, thanks.

 

[dchz]

The CRNA started to be a skin consultant last year... wonder if that's when the case started in court...

 

[jwk]

I wonder though, if this has to do with how they're billing. Medical direction vs supervision.....

Still haven't seen an answer to this question. TEFRA applies to medical direction, NOT supervision. It sounds like this might have been billed as a medically supervised case. Had it been medically directed, then I would think the anesthesiologist would have been found liable as well. Hard to know without having the plaintiff's exihibits, or transcripts of the depositions or testimony.

 

[ZzzPlz]

The CRNA started to be a skin consultant last year... wonder if that's when the case started in court...

I can’t name three crnas that aren’t skin consultants

 

[kidthor]

I can’t name three crnas that aren’t skin consultants

And they probably make more than we do.

How do we become skin consultants? I can do botox as well as the rest of 'em... maybe.

 

[QueenJames]

Jodi Scalzo is on facebook. Works at sugical hospital of southlands.

Does derm stuff on the side.

 

[chocomorsel]

View attachment 231213 What am I missing here? This case sounds like it should be the poster child for the ASA’s “when seconds count” pitch

I don’t understand. Seems like numbers 1 and 2 contradict each other completely.

And I guess the last line makes it clear?

 

[chocomorsel]

Anybody that does supervision recognizes you can’t be present for every extubation. One strategy is to TRY to pick and choose which ones you’re concerned about and try to discuss them with the CRNA ahead if time (“let’s get him fully reversed and wide awake...”).

And hopefully the CRNA listens. Because they don’t always.
I hate supervising mainly because of this. Don’t want to be held liable for someone else’s screw up. The other is I hate running around like a chicken with my head off.

 

[Rcola23]

Here is another Malpractice case that my office just reviewed:

In this Malpractice Claim Review:
A surgeon criticizes an anesthesiologist's care prompting the family to file a malpractice claim.


SPECIALTY
Anesthesiology
ALLEGATION
Improper Performance
RISK MANAGEMENT FOCUS
Jousting


Facts of Case
A patient with Raynaud's disease and poor upper extremity vasculature had a cancer-related laryngectomy. The anesthesiologist was present for the entire case and placed the lines, including one in the femoral artery for blood pressure monitoring. The surgical procedure lasted more than five hours.

In the Post Anesthesia Care Unit, the patient became very hypotensive and was noted to have a tense abdomen. The patient was returned to the operating room for an exploratory laparotomy where a large hemo-peritoneum was found secondary to the femoral catheter perforating the iliac artery. The patient left the operating room in critical and shortly thereafter suffered a cardiac arrest. Eventually the patient developed multiple organ failure and died.

This case became a lawsuit after the surgeon told family members that none of the complications would have happened if the anesthesiologist had exercised more care and prevented the perforation.

The family filed a malpractice case against the anesthesiologist alleging negligent placement of a catheter leading to postoperative complications and death.



Disposition of Case
This case went to trial, with a jury verdict for the defendant anesthesiologist.



Risk Management Perspective
"Jousting" is when one healthcare provider makes critical comments about another's care, increasing the risk of a malpractice claim for both providers. Jousting is not always intentional. Patients or families, however, frequently misinterpret offhand comments, as a statement of your opinion that another provider was negligent.

 

[caligas]

Here is another Malpractice case that my office just reviewed:

In this Malpractice Claim Review:
A surgeon criticizes an anesthesiologist's care prompting the family to file a malpractice claim.


SPECIALTY
Anesthesiology
ALLEGATION
Improper Performance
RISK MANAGEMENT FOCUS
Jousting


Facts of Case
A patient with Raynaud's disease and poor upper extremity vasculature had a cancer-related laryngectomy. The anesthesiologist was present for the entire case and placed the lines, including one in the femoral artery for blood pressure monitoring. The surgical procedure lasted more than five hours.

In the Post Anesthesia Care Unit, the patient became very hypotensive and was noted to have a tense abdomen. The patient was returned to the operating room for an exploratory laparotomy where a large hemo-peritoneum was found secondary to the femoral catheter perforating the iliac artery. The patient left the operating room in critical and shortly thereafter suffered a cardiac arrest. Eventually the patient developed multiple organ failure and died.

This case became a lawsuit after the surgeon told family members that none of the complications would have happened if the anesthesiologist had exercised more care and prevented the perforation.

The family filed a malpractice case against the anesthesiologist alleging negligent placement of a catheter leading to postoperative complications and death.



Disposition of Case
This case went to trial, with a jury verdict for the defendant anesthesiologist.



Risk Management Perspective
"Jousting" is when one healthcare provider makes critical comments about another's care, increasing the risk of a malpractice claim for both providers. Jousting is not always intentional. Patients or families, however, frequently misinterpret offhand comments, as a statement of your opinion that another provider was negligent.

Short of a written apology from that surgeon I would be considering a defamation lawsuit.

 

[Rcola23]

Short of a written apology from that surgeon I would be considering a defamation lawsuit.

My thoughts exactly!

 

[Vandalia]

Short of a written apology from that surgeon I would be considering a defamation lawsuit.

And you would likely end up writing a $100K check to pay the surgeon's legal fees if you are in a state with an anti-SLAPP law.

An opinion can never be defamatory. There is also an exception to otherwise defamatory statements called the "disclosed facts exception." As long as you provide a reason for your statement, it cannot be defamation. (As it appears the surgeon did here.) It does not matter if the relation between your facts and your conclusions are completely illogical or even bizarre. For example, if someone posts on the internet, "Dr. X refused to refill my pain medication, therefore he is a child molester", that is not defamation.

 

[Southpaw]

And you would likely end up writing a $100K check to pay the surgeon's legal fees if you are in a state with an anti-SLAPP law.

An opinion can never be defamatory. There is also an exception to otherwise defamatory statements called the "disclosed facts exception." As long as you provide a reason for your statement, it cannot be defamation. (As it appears the surgeon did here.) It does not matter if the relation between your facts and your conclusions are completely illogical or even bizarre. For example, if someone posts on the internet, "Dr. X refused to refill my pain medication, therefore he is a child molester", that is not defamation.

I will provide no details but I know of a similar case where the surgeon defamed the anesthesiologist both to the patient’s family and the OR staff. The anesthesiologist sued and on recommendation of his lawyer the surgeon eventually settled. I don’t know the dollar figure of the settlement but I know it wasn’t small potatoes.

I disagree strongly with your sentiment that an opinion can never be defamatory.