Anesthesiologist who did not have a clear, defined supervisory rule takes the wrap for a CRNA mistake. Now just change the word supervising anesthesiologist to "supervising surgeon" and the surgeon will be dragged to court and get eaten alive on the stand by the trial lawyers.
MH was a 38-year-old, 5′0″, 250-pound Licensed Practical Nurse who worked in the delivery room at Hospital. MH slipped in the delivery room and injured her knee, requiring arthroscopic surgery. MH was admitted by surgeon Dr. B to Hospital.
Hospital had contracted with Anesthesia Group ("Group"), a partnership composed of Dr. H and Dr. M, to "provide full-time Anesthesiology services and assume general responsibility for the conduct and operation of Hospital's Anesthesiology Department, subject to approval of Hospital." The contract provided that services under it would be performed as scheduled by the Hospital and that Group was required to provide an anesthesiologist from 7:00 am to 3:30 pm Monday through Friday and as required by Hospital. Emergency services could be provided by a CRNA with an anesthesiologist available for supervision.
Group contracted with five CRNAs who worked under the partnership at Hospital. One of these CRNAs, CRNA S, visited MH the evening before surgery. CNRA S introduced himself as being from the "anesthesia department." CRNA S did the preoperative workup on MH and wrote for preoperative medication. CRNA S signed Dr. H's name to the orders. Dr. H did not see MH, nor did CRNA S consult with Dr. H on MH's case.
On October 5, after having been given morphine at 6 am for the surgery, MH was taken to the preoperative holding area. MH was visited by CRNA J, who was scheduled to administer anesthesia. Dr. M was the floating anesthesiologist responsible for surgeries that day. Dr. M reviewed MH's records in the preoperative holding area, approved the preoperative medications after they had been given, discussed for a minute or two the anesthesia plan with CRNA J, and spoke briefly with MH.
Dr. M was not present in the operating room when anesthesia was induced nor during the surgery. MH was "put to sleep" and then given 100 mg of Anectine at 7:05 am and intubated. The surgery was uneventful and was completed at 7:46 am. At 7:48 am, the endotracheal tube was suctioned out and removed. MH was suctioned again and as preparations were being made to roll her onto a gurney, a laryngospasm was observed by CRNA J. CRNA J administered 20 mg of Anectine at 7:51 am in an effort to break the spasm. It broke for approximately three breaths but then recurred. At approximately the same time, surgeon Dr. B noticed MH's toes and toenails becoming cyanotic. Dr. B notified CRNA J, who responded that he was "administering medicine." A second 20 mg dose of Anectine was given at 7:56 am; however, it had no effect on the ability of CRNA J to ventilate MH. At 8 am, circulating nurse D left the OR and told the nurse at the desk to find Dr. M. D then returned to the OR with the code cart. After this, Dr. M arrived and began to assist CRNA J to resuscitate MH. At 8:02 am, CRNA J gave a 100 mg dose of Anectine, reintubated the patient, and started an intravenous (IV) drip of Anectine.
At this point, CRNA J saw no improvement in his ability to ventilate MH. Both CRNA J and Dr. M listened to MH's chest, but MH's obesity made chest sounds "less clear." Both believed MH had developed a bronchospasm in addition to the laryngospasm. During this period, MH became bradycardic, and experienced at least two incidents of asystole. Cardiac massage was performed. Efforts to medically treat both the cardiac problem and suspected bronchospasm were ineffective; at 8:07 am, due to continuing difficulty, Dr. M removed the endotracheal tube and replaced it with another. At 8:10 am, improvements in respiration began to be clinically noted. MH was then stabilized and taken to the intensive care unit (ICU).
Upon arrival at the ICU, nurses noted that MH's abdomen was "distended and tympanic sounding." In the ICU, MH never regained consciousness and remained on a respirator until she was declared brain dead and life support was removed on October 11.
MH, through her estate, sued Group for medical malpractice, claiming Group was responsible for falling below the standard of care for anesthesia care and supervision and for the actions of CRNA J. Group argued that it followed all applicable standards of care and could not be held negligent for the activities of CRNA J, because CRNA J was not its employee and it did not direct the actions of CRNA J. Group also indicated that even if it were responsible for supervising CRNA J, Group did so appropriately when Dr. M arrived during intubation of MH.
At trial, Dr. H admitted the contractual relationship between Group and CRNA J did not reduce Dr. H's ability to control the CRNAs and to direct their activities in anesthesia. But Dr. H indicated there had been no instructions given to CRNAs as to when they should call an anesthesiologist to the OR. Dr. H believed the understanding of the CRNAs was that they should call when they needed the doctor for "consultation." Further, Dr. M stated he was unaware of any written or verbal guidelines that delineated when the CRNA should request assistance from the anesthesiologist.
Two anesthesiologists testified as experts. Dr. J, for Dr. H, opined that CRNA J's actions were deficient in several respects and that the degree of supervision and direction exercised by Dr. M was not commensurate with that required in the practice of anesthesiology at that time. In Dr. J's opinion, the CRNA should immediately initiate treatment and call the doctor as soon as any respiratory problems arise. Instead, CRNA J continued to try to correct the problem alone and Dr. M was finally summoned by the circulating nurse. Dr. J also believed that MH's size made a 20-mg dose of Anectine useless and that the 100-mg dose should have been given initially. It was also Dr. J's opinion that CRNA J's intubation at 8:02 am was into the esophagus, not the trachea, which would have resulted in distention of her abdomen if allowed to continue for five minutes or more. Dr. J indicated such intubations can occur but felt that failure to recognize that the tube was in the wrong place and failure to correct it for over five minutes caused the damage resulting in MH's death, most likely due to cardiac arrest.
Dr. B, Dr. M's expert, initially testified that calling Dr. M after the second laryngospasm was appropriate; but then added that the anesthesiologist should be called immediately when cyanosis is present. Dr. B also agreed that the 20-mg dose was insufficient for a woman of MH's size and that the second dose should have been a full 100 or 120 mg to break the spasm.
The jury at trial found for MH. Group appealed, indicating that since the actions were taken by CRNA J, Group nor Dr. M or Dr. H could be liable, and that Dr. M properly supervised CRNA J. MH indicated that no legal error was committed, and the jury verdict should stand.
Legal analysis
The appellate court first noted that "'By statute, the physician is the only one empowered to practice medicine.' … [but] an exception [is in] the specialty of anesthesiology and allows a nurse who meets the qualifications of the statute to administer anesthesia under particular supervision." The court noted that the statute establishes the standard of conduct constituting ordinary care for use of CRNAs and that its violation can amount to negligence per se—negligence by definition. Further, the court quoted the Hospital's guidelines for anesthesia:
The anesthetist responsible for the anesthesia decisions required during anesthesia management [must] be already identified [before induction] to the patient and to any technician who may assist in such care and management, and his availability for supervision and direction be established if he is not administering the anesthesia personally.
The appellate court first concluded that in the case of MH, there was sufficient evidence from which a jury could find that there was no clear understanding between Drs. M and H and the CRNAs, and in particular Dr. M and CRNA J, as to when a physician should be summoned whenever difficulties were encountered. This was a failure of the legally mandated degree of direction and responsibility in supervision as evidenced by the delay in Dr. M's entry into the OR, which resulted in inadequate treatment of the laryngospasm for over five minutes before Dr. M was called to the OR.
Group argued to the appellate court that the only ineffective care was the esophageal intubation, but this was done in the presence of Dr. M, and as a matter of law was under Dr. M's "direction and responsibility," and thus supervision was legally adequate. However, the court rejected this contention, indicating "[p]retermitting the issue of whether his walking in the door during the reintubation was sufficient supervision, [MH's] theories were broader than this. They included the lack of understanding between doctor and CRNA as to when the doctor should be called and the failure to have the doctor available sooner." The court noted that the level of supervision by an anesthesiologist working with a CRNA was a subject for expert testimony as to the standard of care; the resolution of conflicting perspectives regarding the relevant standard was for the jury to decide. The jury's decision against the anesthesiologists was thus legally appropriate as a matter of law and Group's claim of adequate supervision could not be sustained.
The court concluded that because the anesthesiologists did not have an appropriate understanding with the CRNAs as to when anesthesiologist presence was necessary, and because testimony elicited at trial indicated there was a violation of the standard of supervisory care in anesthesia, the trial court's conclusion that the anesthesiologists had been negligent was not reversible. It then affirmed the judgment.
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