Co-Defendant CRNA Denies Responsibility for Failed Resuscitation

OMIC ARTICLES ON ANESTHESIA LIABILITY

• This article appeared in an issue of our Digest devoted to wrongful death claims. The policy article in that issue addresses supervision of CRNAs and liability questions: https://docs.google.com/viewerng/viewer?url=http://www.omic.com/wp-content/uploads/2012/12/Digest-Summer-2012.pdf
• Another issue of the Digest analyzed ophthalmic anesthesia claims: https://docs.google.com/viewerng/viewer?url=http://www.omic.com/wp-content/uploads/2012/12/Digest-Winter-2006.pdf.
• Here are detailed risk management recommendations on ophthalmic anesthesia: http://www.omic.com/wp-content/uploads/2012/04/Anesthesia-Liability.pdf.

Ryan Bucsi, OMIC Senior Litigation Analyst 

Digest, Summer 2012

Allegation

Negligent resuscitation resulting in death of 45-year-old father of three.

Disposition

Case settled for $1,775,000 of which CRNA contributed $975,000 and OMIC insured contributed $800,000.

Case Summary

Anon-OMIC-insured ophthalmologist performed cataract surgery on a patient who subsequently developed a hemorrhage OD. The patient was then seen by the insured, who had previously treated his proliferative diabetic retinopathy and bilateral retinal detachments. The insured recommended a vitrectomy under local anesthesia at a surgery center knowing that the patient had tolerated the cataract surgery under local anesthesia. During the vitrectomy, a CRNA administered local anesthesia with IV sedation, and the insured performed a retrobulbar block OD. When the patient became agitated and complained of pain, the CRNA provided more sedation after which the patient turned pale and stopped breathing. The CRNA administered oxygen through an Ambubag but O2 saturation did not increase. The insured instructed the CRNA to intubate and 911 was called. Despite intubation, the patient’s O2 saturation did not improve. The CRNA confirmed that the tube was in the trachea but asked the surgeon to listen for breath sounds with him; both the surgeon and CRNA heard breath sounds. When the paramedics arrived, they determined that the CO2 monitor had not changed color indicating the tube was in the esophagus rather than the trachea. This prompted the CRNA to get into a shoving match with one of the paramedics. The paramedic re-intubated the patient and O2 saturations began to go up. The patient was transferred to the hospital where he died eight days later.

Analysis

The plaintiff’s anesthesiology expert had many criticisms of the insured ophthalmologist. He testified that surgery should not have been performed since the plaintiff had low blood sugar and high blood pressure on the morning of surgery. It was this expert’s opinion that, given the patient’s medical condition, general anesthesia should have been used, but if local anesthesia was used, the surgery should have been performed in a hospital or facility where an MD anesthesiologist was available. Since this surgery center did not have an MD anesthesiologist, the expert pointed to the ophthalmologist as the “captain of the ship.” The expert testified that the CRNA did not intubate the patient properly and the insured did not diagnose improper esophageal intubation.

The defense expert disagreed with these opinions and the role of a surgeon in anesthesia care. He insisted that the anesthesia provider is responsible for monitoring the patient during surgery. He testified that the CRNA failed to monitor and communicate a low oxygen level to the insured prior to the patient’s arrest, thus leading to a delay in resuscitation. Unfortunately, the defense expert was not comfortable rendering an opinion on the standard of care related to the decision to perform surgery. The co-defendant CRNA testified at his deposition that he was responsible for providing anesthesia to the patient, but that the insured was the “captain of the ship.” The CRNA admitted that he had not performed an intubation in the five years preceding this case and that he never discussed the risks and complications of anesthesia with the patient because he did not want to scare him. However, he maintained that the intubation was properly done and that the paramedic dislodged the tube. It was defense counsel’s opinion that a jury would award the plaintiff $2.8 to $4 million and hold the OMIC insured 25% to 50% liable. The CRNA settled first for $975,000, and the OMIC insured settled later at mediation for $800,000.

Risk Management Principles

For the OMIC insured, this could be viewed as a case of being in the wrong place at the wrong time. The procedure was performed in a surgery center with a CRNA who allegedly did not properly intubate the patient leading to a prolonged period without oxygen and eventual death. There are several steps insureds can take to minimize the risk of an improper resuscitation in a surgery center. First, find out if there is a peer review process in place to review the competency of CRNAs and anesthesiologists. Inquire about the emergency response measures in place and whether there is anyone else available within the surgery center to assist with resuscitations. Lastly, call 911 immediately when a potentially life-threatening situation arises.

Ozurdex

This sample consent form for Ozurdex  is written in plain language to make it easier for patients to understand.    

SAVE THIS FORM TO YOUR COMPUTER BY USING THE DOWNLOAD BUTTON.

 Perform a time out before each intravitreal injection.

OMIC has received reports of “wrong” events associated with intravitreal injections. These include wrong patient, wrong eye, wrong condition, wrong drug, and wrong dose.

To ensure that the correct drug and dose are injected into the correct eye every time, the ophthalmologist needs to lead a time out. Time out before intravitreal injections provides the opportunity to confirm that the patient, medical record, and ophthalmologist are in agreement.

Impairment from Alcohol and Cocaine Impacts Defense of Delayed Diagnosis Claim

By Ryan Bucsi, OMIC Senior Litigation Analyst, Digest, Spring 2010

ALLEGATION: Delay in diagnosing and treating retinal detachment.

DISPOSITION: Case was settled on behalf of the insured for $225,000.

Case Summary

The patient was a 60-year-old retired male who had been seeing the insured since 1993 for annual ophthalmic checkups. He had a history of droopy eyelids and in April 2001 presented to the insured complaining that his eye felt “funny” like his “lid was blocking his vision.” Visual acuity was 20/30 OD and 20/20 OS. The insured noted 4+ dermatochalasis OU and a restricted upward gaze in the right eye that had been “long standing.” A dilated exam with an ophthalmoscope and indirect ophthalmoscope revealed attached retinas. The insured discussed the option of performing a bilateral ptosis repair in an attempt to raise the eyelids.

The patient returned four months later in August for a preoperative workup with taped and untaped visual fields and photographs. Visual fields were the same taped and untaped; however, visual acuity had dropped significantly since April to 20/200 OD. The patient was not examined by the insured ophthalmologist at this visit, and the technician did not inform the insured of the change in visual acuity.

In October, the patient came to the office to sign consent forms for ptosis repair of his upper lids. The insured signed the chart that day but did not examine the patient or review the visual acuity results from August. Three days later, the insured performed bilateral ptosis repair without incident. During the one week postop visit, a visual acuity test was done and the insured noted VA was 20/200 OD. He checked the patient’s records and saw that VA was 20/200 OD back in August. The insured immediately referred the patient to a retinal specialist, who diagnosed a retinal detachment OD and performed scleral buckle surgery with cryo treatment and air/ fluid exchange to repair it. Over the next seven months, the patient underwent six more retinal surgeries. His final best visual acuity was 20/200 OD with a contact lens. He also had difficulty seeing peripherally and from the right side. The insured was served with a lawsuit in October 2003 for failure to timely diagnose and treat a retinal detachment.

Analysis

Unknown to either defense counsel or OMIC, the insured had been struggling with alcohol and drug problems for several years, and was voluntarily participating in an anonymous statesponsored recovery and monitoring program prior to and during the time he was treating this patient. Unfortunately, he was unable to stay drug free and, one month after litigation was initiated, his license to practice medicine was suspended for failure to comply with the voluntary recovery program. The insured never informed OMIC or his defense counsel of his license suspension. He then signed and filed a sworn statement that the injury alleged in the plaintiff’s complaint was not caused by the care rendered, even though it was required to be signed by a licensed physician. When the licensure problem was discovered, the plaintiff’s attorney filed to dismiss the defendant’s answer to the complaint because the insured’s statement had not been signed by a licensed physician. If the court granted the dismissal, as seemed likely, the only issue left would be how much money to award the plaintiff. With the insured’s consent, the case was settled for $225,000.

Risk Management Principles

Initial review of this case raised concerns around staff supervision and preoperative evaluation. Prior to scheduling surgery, had the ophthalmologist reviewed all chart entries made by staff and asked the patient about changes to his medical or ocular history since the last exam, he might have been prompted to explore other causes for the patient’s decreased vision.

However, the focus of the defense quickly shifted to the insured’s substance abuse problems when they came to light. The insured is to be commended for seeking help for his addictions. It is widely understood that drug addiction and alcoholism are medical/psychological illnesses that can be ameliorated by treatment. Provided the guidelines of a recovery and monitoring program are followed, a physician’s license to practice medicine is not affected. However, by not informing OMIC of his participation in the program or his subsequent license suspension, the insured weakened his defense and potentially put his professional liability coverage at risk. See Policy Issues for guidelines on why and when to contact OMIC with competency related issues and how to preserve your coverage.

Incompetency: Reporting and Coverage

By Kimberly Wynkoop

OMIC Legal Counsel

Digest, Spring 2010

Insureds may have to deal with incompetency issues from either the side of the impaired physician or as an evaluator of one of their peers. There are policy issues to consider from either perspective.

When an insured is the physician with potential competency issues, he or she has affirmative reporting duties under the OMIC professional and limited office premises liability insurance policy. Under Section VIII. General Conditions, Rules, and Duties, of the policy, Subsection 2, insureds agree to update OMIC immediately, in writing, about any changes to the statements they made in their application. If the insured fails to notify OMIC within thirty days of the change, OMIC has the right to deny coverage of a claim related to that change, or to cancel the policy. More specifically, Subsection 3 requires insureds to give OMIC written notice within thirty days of certain specific situations, including the insured being advised to or undergoing treatment for substance abuse or psychiatric illness and the insured suffering from an illness or physical injury that could impair his or her ability to practice ophthalmology for thirty days or longer. Regarding group policies, the policyholder has the duty to act on behalf of all insureds under the policy. To the extent the policyholder or its representative is aware of an insured’s incompetency, it has the duty to inform OMIC (Section VIII.1).

What occurs after the insured notifies his or her underwriter depends upon the specific facts and circumstances of the insured’s situation. The underwriter will require complete details of the impairment or incompetency, including its nature, date of origin, whether treatment has been sought, prognosis, and whether the insured has been cleared by his or her treating physician to continue practice (if applicable).  Underwriting will require a letter from the treating physician or treatment program coordinator confirming this information. Underwriting also will want to know if the impairment or condition has affected the insured’s licensure or hospital privileges.

Underwriting will evaluate all of these factors, either by staff or through the physician review process, and will determine whether and under what conditions OMIC can continue providing coverage to the insured. If the insured is cleared for a reduced scope of practice, reduction in the coverage classification may be warranted. If the insured is temporarily unable to practice, he or she may be eligible for a suspension of coverage. If serious action has been taken against the insured’s privileges or licensure, such as suspension or revocation, OMIC may determine that it is no longer in a position to insure the doctor. OMIC generally takes the least restrictive action that is prudent for the company and its members.

For patient safety reasons, and because such claims can be extremely difficult to defend, OMIC does not cover claims arising from insureds’ performance of direct patient treatment while under certain impairments. For instance, Section III.B.4. of the policy provides that “OMIC will defend an insured because of a claim otherwise covered by this policy that arises out of, but is not solely limited to, the following; however, under no circumstances will OMIC pay any damages or supplementary payments except Claim expenses resulting from either settlement or judgment attributed to…an act, error, or omission (a) committed while the insured is under the influence of alcohol, drugs, or other substances that adversely affect the Insured’s professional ability or judgment or (b) that results from substance abuse.” If the insured’s condition leads to restrictions on or the loss of his or her licensure (including DEA license), be aware that the policy (Sections III.A.2. and III.A.3.) provides that OMIC will neither defend an insured nor pay damages or supplementary payments because of a Claim that arises out of direct patient treatment or dispensing of controlled substances that occurred in violation of a restricted or revoked license.

In order to financially assist insureds who leave practice due to incompetency and disability, if the insured is judicially determined to be incompetent or is permanently and totally disabled, OMIC provides the insured with free tail coverage upon termination of the policy. In order to receive this benefit, OMIC must receive written notice of the insured’s condition and the policy premium must be paid through the date of termination.

Conversely, an insured may be called on to evaluate another physician’s competency. OMIC’s policy offers protection for this evaluation in certain situations. Coverage D provides defense and payment of damages and supplementary payments for the insured’s professional committee activities performed for (a) a state licensed health care facility or clinic that is not the professional entity with which the Insured is affiliated as a member, officer, director, partner, or shareholder or (b) a professional association or society. Professional committee activities are defined as service of an insured while acting within the scope of his or her duties as a member of, participant in, or person charged with the duty of executing the directives of, a formal accreditation, utilization review, credentialing, quality assurance, peer review, or similar professional board or committee. A conditional defense is provided to insureds performing professional committee activities in good faith who are sued for such wrongful acts as slander and defamation of character and alleged anticompetitive activities.

If you have questions about your policy coverage, please call your underwriter for assistance. For help determining what steps to take with a suspected incompetent peer, please call OMIC’s risk management hotline.

Two Cases of Entity Liabiilty

By Ryan Bucsi, OMIC Senior Litigation Analyst, Digest, Spring 2011

CASE 1

ALLEGATION: Post cataract surgery endophthalmitis due to unsterilized surgical instruments.

DISPOSITION: Case settled for $650,000.

CASE 2

ALLEGATION: Failure to assist an elderly patient resulting in a fall and femur fracture.

DISPOSITION: Case settled for $235,000.

Case 1 Summary

An OMIC insured performed an uncomplicated cataract surgery on a patient’s left eye. At the completion of surgery, one of the support staff present in the operating room noticed that the instrument tray chemical indicator was white and had not turned dark brown as it should at the completion of the autoclave sterilization process. The patient was not immediately informed of this problem as the consensus was that, while the instruments had not been autoclaved, they had been washed and cleaned and were likely not contaminated. Further, antibiotics had already been prescribed. At the postoperative day one examination, no signs of infection were present, and the sterilization error was explained to the patient. Three days later, during the second postoperative exam, the patient presented with complaints of sudden vision loss and pain OS. Endophthalmitis was diagnosed. A culture revealed the presence of pseudomonas aeruginosa, as did the instruments when they were cleaned in the ultrasonic bath unit without being autoclaved. Despite treatment of the infection with vitrectomy and intraocular antibiotic injections, the patient’s vision OS remained light perception only.

Analysis

Defense experts felt the entity’s liability was certain as there had been departures from standard medical practice, nursing practice, and internal protocols. A processing technician left a washed, non-sterilized tray of instruments in the autoclave room on a table next to the unit when the tray should have been placed on a cart marked non-sterilized. In the operating room, none of the three OR nurses verified that the indicator on the instrument tray had changed color before setting up the instruments for surgery. As a result of these errors, a $650,000 settlement was negotiated at mediation on behalf of the OMIC insured group.

Risk Management Principles

Patients have a right to know when an error has been made. In this case, the patient should have been immediately informed that the instruments used in her surgery may not have been properly sterilized. Immediate disclosure of such information is beneficial to both the patient and the health care provider and maintains trust between them. Advising a patient of complications that might occur and what symptoms to report can lead to earlier, vision-preserving treatment. As a result of this incident, the insured entity developed a protocol to assure that only surgical items that have been appropriately sterilized are used during surgery. One of the nurses in the operating room is now required to show the surgeon the tray of instruments to verify that the chemical indicator has indeed changed color, thus confirming appropriate sterilization.

Case 2 Summary

An elderly patient with macular degeneration was in an examination room with an ophthalmic technician following administration of dilating drops. The technician asked the patient to move from one chair to another. The second chair was on wheels and when the patient placed her weight on it, the chair slid out from under her and she fell. The patient fractured her femur and required surgery with extensive rehabilitation in a skilled nursing facility. She claimed over $100,000 in medical bills related to the injury.

Analysis

Liability was evident as ophthalmic treatment, via administration of dilation drops, and lack of patient supervision contributed to the fall. Defense experts criticized the technician, who, in supervising the patient, did not assess the need for assistance, offer assistance, or immobilize the chair for an elderly patient with impaired vision. The insured entity did facilitate the patient’s transfer to the hospital for care and was conscientious in immediately reporting the matter to the OMIC claims department. As a result, a suit was not filed and a settlement of $235,000 was directly negotiated with the patient’s attorney.

Risk Management Principles

Observing patients in the waiting room may help identify those who will need assistance maneuvering around the office. Caution should be exercised with elderly patients who have existing visual impairments. Assistance should be provided if it is necessary for an impaired patient to move around the exam room or to another location in the office. At the conclusion of the exam, the patient should be assisted in returning to the waiting room and to the supervision of the family member or caregiver responsible for the patient’s transport home.