Risk Management

Codefendant Nurse Anesthetist’s Insurance Carrier Builds a Case Against OMIC Insureds

Ryan Bucsi, OMIC Senior Claims Associate

Digest, Winter 2006

Allegation

(Against Insured A) Negligent supervision of nurse anesthetist during administration of a retrobulbar block. (Against Insured B) Negligent use of gas bubble injection to repair a retinal detachment.  (Against Non- Insured Nurse Anesthetist) Improper administration of a retrobulbar block.

Disposition

Insured A was dismissed prior to trial while insured B received a defense verdict at trial. Jury verdict of $250,000 against non-OMIC insured codefendant nurse anesthetist.

Case Summary

An elderly male patient underwent a retrobulbar block by the codefendant nurse anesthetist, apparently without complication. Insured A then performed cataract surgery on the left eye. When the patient returned the following day, insured A diagnosed a submacular hemorrhage and referred the patient to insured B, a retinal specialist. Insured B performed a TPA/gas injection and two weeks later performed a pars plana vitrectomy. Subsequent procedures were performed by insured B because of a retinal detachment resulting from proliferative vitreous retraction. The patient ultimately lost all useful vision in his left eye. During their respective depositions, insured A and the nurse anesthetist both testified that the injury was a result of the retrobulbar block.

Analysis

The defense expert for insured A testified that since the nurse anesthetist had significant experience in administering anesthesia, there was no need for direct supervision of the anesthesia administration. The defense expert for insured B was fully supportive of the insured’s care and treatment of the patient, stating that TPA and gas injection was cutting edge and the least invasive approach. The defense expert for the nurse anesthetist testified that everyone except the nurse violated the standard of care. He testified that insured A breached the standard of care by performing cataract surgery on the patient in the first place and opined that a macular pucker, not a cataract, was the cause of the patient’s poor vision. The codefendant also retained an expert to testify against insured B. This expert opined that the decision to use a gas bubble injection, rather than a vitrectomy with membrane stripping, fell below the standard of care. This testimony prompted the plaintiff to amend the complaint to include insured B. As to the care provided by the nurse anesthetist, the plaintiff’s expert opined that the double perforations represented a considerable departure from the standard of care. An additional criticism was that the nurse failed to recognize this complication, thus delaying a referral to a retinal specialist.

The plaintiff did not retain an expert to testify against insured A or B. Insured A was dismissed from the case, but the group he was part of was not. The codefendant alleged the ostensible agency theory, essentially claiming that the group caused the plaintiff to believe the CRNA was an agent or employee of the group. Since insured A was dismissed and there remained only the allegation of vicarious liability against the group, OMIC attempted to tender the defense to the nurse anesthetist’s carrier. The carrier denied OMIC’s tender based on the theory that insured A was somehow independently negligent, even though insured A had been dismissed.

OMIC’s defense counsel estimated a 90% chance of a defense verdict, since the plaintiff’s expert was supportive of insured B, and the only critical testimony would be presented by an expert retained by the codefendant. The plaintiff’s demand was for $1 million.

The case was mediated prior to trial and the codefendant offered $100,000. No offer was made on behalf of any OMIC insured. The jury returned a defense verdict for OMIC insured B, found against the nurse anesthetist, and awarded the plaintiff $250,000. Since OMIC’s offer to tender the defense to the nurse anes- thetist’s carrier was rejected, it allowed OMIC to pursue a portion of the defense costs. Defense counsel filed a complaint for costs against the codefendant and OMIC received $22,250 reimbursement from the nurse anesthetist’s insurance carrier.

Risk Management Principles

As this case demonstrates, ophthalmologists who delegate retrobulbar injections to quali- fied anesthesia providers are not held liable for the alleged negligence of that provider. The surgeon does, however, need to carefully convey to the anesthetist any information that could impact the anesthetic choice, dosage, or technique, such as unusual anatomical features and co-morbid ocular or medical conditions.