Malpractice: A Survival Guide for
Anesthesia Providers
Kenneth R. Abbey, MD, JD
Oregon Health & Science University
Disclosure and Learning Objectives
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Disclosure: I and my spouse/partner have no relevant
financial relationships with any commercial interests to
disclose.
Learning objectives:
 Understand the basic elements of a malpractice claim
 Be able to describe the primary procedural steps in
malpractice litigation
 Describe the goals and roles of plaintiff’s and defense
counsel
The Facts

Pt, Mr. Bullish, is a 37
yo stockbroker who
was involved in an
MVA and has a femur
fracture but is
otherwise stable
Anesthesia Preop
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Bullish and his wife, a doc, are in Trauma Bay 3
talking when you enter
He tells you that he had a “bear of a day” and
met his wife for happy hour where he had an ice
water at 1730; it’s now 2330
h/o HTN, DM II on oral meds
Exam shows easy airway, cleared c-spine
Labs normal except for BAL of 0.10
In OR
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RSI with propofol, sux, cricoid
Just before tube goes through the cords, cricoid
is released
Martini mixed with cheeseburger comes up the
esophagus and goes down the trachea
Desaturates to 80%, then stabilizes
Case cancelled
Pt to ICU on vent after bronch
You meet with the family
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Wife, a surgeon, is understanding
She tells you that in fact her husband had a
cheeseburger with his martini. He didn’t tell you
because he wanted surgery done. She knows
from her practice that anesthesia providers are
“alarmists” about this no eating before surgery
stuff.
She hugs you and thanks you for your empathy
and care and says “no worries, he’ll be fine.”
How to disclose a complication

Principles of disclosure:
 let family know how patient is doing -- this is their first
concern
 express your concern for your patient
 tell them the facts of the complication as best you
know them (often not sure)
 tell them the likely consequences and the steps being
taken to deal the the complication
 ask if they have any questions and answer them as
best you can
Can you apologize?

ORS 677.082 states that for “any civil
action against a person licensed by the
Oregon Medical Board, any expression of
regret or apology made by or on behalf of
the person … does not constitute an
admission of liability for any purpose.”
POD 1: ICU
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Intensivist Cox has
placed swann; pt on hifi
vent, proned, FIO2 1.0
Mixed venous is 47%
Pt arrests and expires
Cox’s ICU note says: “Pt
expired due to aspiration;
this anesthesiologist,
‘Mary Ann,’ is a cowboy;
will bring this to attention
of QA committee. This
needs to stop …“
“Listen here, newbie” …
Dr. Bullish hires a lawyer …
How will the plaintiff’s lawyer
assess the case?
x = (1/3P*MaxR – C)
T
Where:
 x = probable hourly recovery for the attorney
 P = probability of success at trial
 MaxR = maximum possible recovery
 C = attorney’s costs
 T = time in hours required by attorney to go to trial
6 Months Later, Letter Arrives …
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From Mr. Dewey of Dewey, Cheatham,
and Howe
Letter states: “My client, Dr. Bullish,
hereby demands compensation for the
wrongful death of her husband. Please
remit $44.6 million immediately. If we do
not receive payment within 30 days, we
will commence suit. Have a nice day.”*
* They never actually say “have a nice day.”
Why the demand letter?
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Lawyer’s Rule: “you never know if you
don’t ask”
The best settlement in the world for a
plaintiff’s attorney is the one made before
he or she has to put any significant time
into the case
What do you do?
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Call Risk Management at your hospital
Call and write (certified mail) to your
claims adjuster for your malpractice
insurer enclosing a copy of the demand
letter. This satisfies the “notice
requirement” of your policy.
Duty to Defend
What if a lawyer calls?
What will your insurer do?

Hire you a lawyer:
 John “white shoes”
Smyth of Smyth,
Smyth, and Jones
 20 years out of HLS
 $575/hour
Defense Attorney’s Assessment
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Will review chart, interview you, and have
expert review
Will weigh cost of defense against
probable settlement value and policy limits
and offer opinion to insurer
Letter from Smyth to Dewey
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States: “My client denies any liability
whatsoever, and we are prepared to
vigorously defend this case. However, in
the spirit of compromise, and to resolve
this matter expeditiously, we would be
willing to pay your client $50,000. This
offer will expire at midnight tonight.”
11 months and 20 days later:
“tag, you’re it” ….
The Pleadings Phase: The
Complaint
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Alleges the following:
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You and your student were caring for the
plaintiff’s husband and owed a “duty of care”
You “breached your duty of care” by “failing to
follow the “standard of care” for NPO or RSI
As a “proximate cause” of your breach, the
plaintiff’s husband died and she suffered
“damages” in the amount of $44.6 million.
Can a student be sued?
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You betcha! (spoken in an Alaskan accent)
If you are named as a defendant:
 You will have to disclose that when you apply for
privileges.
 It will be reported to the national databank.
But, most teaching hospitals will attempt to get you
dismissed on the theory that you were working under the
direction of an attending.
You tell Smyth to “get this case
thrown out of court”
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Pt lied to you about his NPO status
His wife admitted it to you
Get this “bleeping case thrown out…”
You find yourself
saying “bleeping” a lot
Smyth files a “motion to dismiss”
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Standard for a motion to dismiss is:
Plaintiff’s complaint, even if facts are true as
stated, does not state a legal claim for
relief
What are the lawyers’ goals?
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Smyth wants to win the
motion and puts
serious effort into it.
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Dewey wants to do just
enough to defeat the
motion and spends less.
Judge reviews documents and listens to
lawyers and decides that your motion is …
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If facts are true,
complaint does state a
claim
You file “answer”
denying all allegations
– ends “pleadings
phase”
Bill so far from Smyth:
$12,000 – be glad you
have insurance
What if Smyth’s motion won?
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Probably, Dewey would be given “leave to
amend” his complaint. He would redraft it
using the judge’s comments as a guide so
that it would pass muster. He would
spend about 2 hours on the project.
Discovery Phase: time to spend
“real money”
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Document Requests
Depositions
Interrogatories
Requests for Admissions
Few cases go to trial … instead,
much time is spent in discovery
Henry JB. “Fortune 500: The Total Cost of Litigation Estimated at One-Third Profits.”
eLawForum February 2008, p. 28.
Gonsowski D. “How to Control Litigation Costs with In-House E-Discovery.” eweek.com 8/4/08
http://www.eweek.com/c/a/Enterprise-Applications/How-to-Control-Litigation-Costs-with-InHouse-EDiscovery/
The goals of the attorneys: The
Santa Barbara example
What’s a deposition?
Your deposition: can the
plaintiff’s lawyer ask you about
m&m?
Nope …
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ORS 41.675 creates a privilege for any
“data” used by a “peer review body”
Can they ask about conversation
in the coffee room?
The Plaintiff’s deposition:
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You tell Smyth to make her admit that her
husband lied about his NPO status
You remember that she admitted it to you right
after the surgery
In deposition, she “does not recall any
conversation” with you after surgery; she
suggests you are making it up to avoid your
responsibility
She looks like this at deposition:
Summary Judgment
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You’ve had enough; and by now, you’re a
legal expert from internet reading ‘till the
wee hours most nights
You tell Smyth to “file an SJ” and “GET
THIS CASE THROWN OUT OF COURT”
Goals of the attorneys are the same as for
the motion to dismiss; again, the plaintiff’s
attorney will do just enough to not lose.
Standard for SJ
Judge can find for defendant “as a matter
of law” if:
Sworn statements and documentary
evidence shows that there are “no material
issues of fact” that support the plaintiff’s
complaint
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You put up your evidence:
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Declaration from you that Dr. Bullish
admitted to you after the event that her
husband lied about his NPO status
She puts up her evidence
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Excerpt from her deposition denying that
the conversation occurred
A bunch of other evidence that you
screwed up …
Judge reviews documents and listens to
lawyers and decides that your motion is …
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There is an issue of
fact regarding NPO
status. Jury will
decide who’s lying.
Bill so far from Smyth:
$165,000
Settlement Talks: The Strategies
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Mr. Smyth suggests you consider a settlement
offer. His goal is to reach a reasonable
settlement to minimize total costs.
Plaintiff’s lawyer states that he would “present
an offer of $32 million to his client if you make it
TODAY.” Otherwise, he’ll “see you in court.”
His hope is that you are discouraged and will
agree to settlement to avoid trial.
Cases are often settled at this point
Trial: Everybody is playing to win
Opening Statements
Plaintiff’s case
I miss him so …
The preop form by the preop
nurse
“NPO Status:
XX 6 hours solids/2 hours clears
“Pt. had martinis and pretzels at 1730”
NPO Policy
Anesthesia Record
“Pt to OR 14. +monitors;+O2. RSI with
cricoid. Grade I x 1 with Mac 3. Cricoid
released before cuff up. Pt noted to have
copious liquid and particulate matter in
mouth. Desatted to 80% then stabilized.
May have aspirated. Case cancelled.
Bronch shows particulates in both lungs.
Pt to ICU intubated.”
The statement from Cox
“Pt expired due to aspiration; this anesthesia
resident, ‘Mary Ann,’ is a cowboy; will
bring this to attention of QA committee.
This needs to stop …“
The Plaintiff’s Expert
Defense Case
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Deceased told you
that he had only
clears 6 hours before
surgery
He lied on purpose
If he had told you the
truth, he would never
have aspirated
His wife admitted it to you … and you have a
contemporaneous writing to that effect.
“Dr. Bullish told me tonight after the
aspiration that her husband had lied about
his NPO status.”
Signed: Dr. Defendant
On the night of surgery
Your expert …
“Dr. Defendant followed the
standard of care”
Another expert …
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Will testify that damage
demand is excessive:
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Mr. Bullish wasn’t making
as much as claimed
He was not going to work
as long as stated due to
bad health
The Bullish relationship
wasn’t all that close …
Closing Statements
The Verdict
Judgment
The Bill:
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Settlement or judgment … who knows
Mr. Smyth’s bill … around $275,000 plus
expenses
Anyone want to appeal?
Morals of the Story
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Family’s forgiveness does not prevent
them from suing
Never criticize another provider in a chart;
do it in M&M (privilege)
More Morals
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Disclose complications factually; avoid
opinions; it’s ok to express concern
It’s hard to get a case “thrown out of court”
Damages are made up; can be any
number
Lawyers are expensive
People lie
More Morals
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You need to follow hospital policies
What you write in the chart can help you
or sink you (admission of early cricoid
release)
Contemporaneous writings are valuable
The best defense against malpractice is to
do it right and be nice while doing it