#16
CAN YOU HEAR ME NOW?
PROTECTING PATIENTS AND ANESTHESIOLOGISTS AGAINST ANESTHESIA AWARENESS
CAN YOU HEAR ME NOW?
PROTECTING PATIENTS AND ANESTHESIOLOGISTS AGAINST ANESTHESIA AWARENESS
“All of us who attempt to heal the wounds of others
will ourselves be wounded.
It is, after all, inherent in the relationship.”1
I.
Introduction
In the United States, surgical procedures have become commonplace. It has been
reported that more than twenty-seven million surgeries are performed every year in this country.2
Most patients who undergo surgery experience the effects of anesthesia in the way they are
intended to be experienced – an anesthetic is administered and subsequently the patient falls into
an unconscious state, rendering him unable to move or feel pain and unaware of what is going on
around him. The patient wakes after the procedure has been completed, unaware of what took
place while the anesthesia had a hold over him.
The invention of anesthesia promised to eliminate the emotional and physical trauma that
was commonly associated with surgery before its discovery.3 However, as an increasing number
of patients have reported a troubling experience far different from the norm, anesthesiologists are
reminded of the time before general anesthesia became a given in operating rooms. According to
these patients, after the anesthetic is administered they regain consciousness, but remain
paralyzed – unable to alert the anesthesiologist that they can hear and feel what is going on
around them. These patients are experiencing what has come to be known as anesthesia
awareness, or unintended intraoperative awareness.4
1
DAVID HILFIKER, HEALING THE WOUNDS: A PHYSICIAN LOOKS AT HIS WORK, 157 (Creighton University Press,
1998) (1985).
2
Terrence Webber, Identifying Critical Issues in Anesthesia Malpractice Cases, American Association of Trial
Lawyers Annual Convention Reference Materials, Volume 2, July, 2004.
3
STEPHEN L. FIELDING, THE PRACTICE OF UNCERTAINTY: VOICES OF PHYSICIANS AND PATIENTS IN MEDICAL
MALPRACTICE CLAIMS, 6 (Auburn House, 1999).
4
Sentinel Event Alert: Preventing, and Managing the Impact of, Anesthesia Awareness, Joint Commission on
Accreditation of Healthcare Organizations (Oct. 6, 2004), available at
http://www.jcaho.org/about+us/news+letters/sentinel+event+alert/print/sea_32.htm.
2
Although infrequently spoken of in the past, anesthesia awareness is not a new
phenomenon. In fact, when general anesthesia was first demonstrated in 1846, the patient felt no
pain, but had memories from the surgery.5 Even with this long history, anesthesia awareness is a
condition which many physicians have been hard pressed to accept as real until recent years. As
reports of anesthesia awareness have increased, the medical community has begun to investigate
this phenomenon more closely, forcing many to begin to accept that these experiences are real.
In recent years, the issue of anesthesia awareness has found its way into the popular
media.6 Many patients who have experienced awareness have become increasingly outspoken
about the subject, making public appearances in a variety of arenas, describing their experiences
in graphic terms and vivid detail.7 This media attention has not gone unnoticed by the public. In
a recent study, fifty-four percent of 247 patients surveyed prior to undergoing general anesthesia
indicated a fear of being aware during the surgical procedure.8 This attention to anesthesia
awareness is expected to trigger an increase in the filing of medical malpractice lawsuits by those
who claim to have experienced anesthesia awareness.9
In response to this increased recognition of anesthesia awareness by the public, the
medical community has begun to take actions to reduce the incidence of anesthesia awareness.
In 2004, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)10 issued
5
Claes Lennmarken & Rolf Sandin, Neuromonitoring for Awareness During Surgery, 363 THE LANCET, 1747 (May
29, 2004); cf. Sandra G. Boodman, Wake-Up Call; Once Dismissed as Imaginary, is Real – and Potentially
Devastating. While it is Rare, Doctors and Hospitals are Starting to Take it Seriously, WASH. POST, Nov. 23, 2004,
at F01 (reporting that the first recorded case of anesthesia awareness dates to 1842.).
6
See, e.g., The Montel Williams Show (Syndicated television broadcast Apr. 11, 2005); Judy Foreman, Waking to a
Nightmare; Although Rare, Awareness During Surgery can be a Traumatizing Event. Some Patients are Able to
Feel and Hear but Unable to Alert their Doctors, L.A. TIMES, Feb. 21, 2005, at F3; Boodman, supra note 5; Sandra
Blakeslee, New Ideas on Mystery of How Anesthetics Work, N.Y. TIMES, Aug. 30, 1994, at C1.
7
See, e.g. Abdur’Rahman v. Bredesen, 2005 Tenn. LEXIS 828, *19 (Tenn. June 8, 2005) (woman who had
experienced anesthesia awareness testifying at criminal trial); The Montell Williams Show, supra note 6.
8
Karen B. Domino, et al., Awareness During Anesthesia: A Closed Claims Analysis, 90(4) ANESTHESIOLOGY 1053
(Apr. 1999).
9
Mary P. Gallagher, Newest Malpractice Concern: Waking Up During Surgery, 231 LEGAL INTELLINGENCER 4
(Nov. 16, 2004).
10
The mission of JCAHO is “[t]o continuously improve the safety and quality of care provided to the public through
the provision of health care accreditation and related services that support performance improvement in health care
3
a Sentinel Event Alert on preventing and managing the impact of anesthesia awareness.11 This
Alert described anesthesia awareness as “under-recognized and under-treated in health care
organizations.”12 In the wake of this JCAHO alert, hospitals and physicians find themselves in
the position of having to address the issue of anesthesia awareness – both in terms of preventing
anesthesia awareness and handling reports of anesthesia awareness, including medical
malpractice lawsuits, alleging the occurrence of anesthesia awareness. Unfortunately, this task is
easier said than done.
This article will address medical malpractice lawsuits brought against anesthesiologists
where in patients allege that they have experienced anesthesia awareness and changes that
hospitals and anesthesiologists must begin to make as anesthesia awareness becomes an
increasingly significant issue. First, the author will provide an overview of medical malpractice
claims and the phenomenon of anesthesia awareness. Second, past medical malpractice lawsuits
alleging anesthesia awareness will be discussed. Third, the author will set forth possible
practices anesthesiologists and hospitals may adopt in an effort to reduce the risk of anesthesia
awareness for their patients. Finally, the author will analyze possible defenses to lawsuits
alleging anesthesia awareness, and how courts can be expected to handle these lawsuits as they
begin to be brought in greater numbers.13
II.
Background
A.
What is a Medical Malpractice Claim?
The issue of medical malpractice lawsuits has become one of critical importance in both
the legal and medical fields over the course of the last few decades. Rising medical malpractice
organizations.” In this vein, JCAHO evaluates the care provided by more than 15,000 health care organizations.
See, http://www.jcaho.org/general+public/who+jc/index.htm.
11
Sentinel Event Alert, supra note 4.
12
Id.
13
For a discussion of medical malpractice lawsuits from the plaintiff’s perspective see Tal S. Grinblat, Comment,
Patient Awareness During General Anesthesia: A Legal Guide, 13 J. CONTEMP. HEALTH L. & POL’Y 137 (Fall
1996).
4
insurance premiums have prompted some to warn that a crisis is preparing to strike the medical
profession. At the same time, patients have grown significantly more aware of their option to
bring a lawsuit against a physician if he feels he has been treated improperly. Despite the fact
that medical malpractice has gained significance in recent years, it is not a modern day issue.
Medical malpractice claims were being brought against physicians in the United States as long
ago as the early nineteenth century.14 Such claims became common nearly two hundred years
ago, in the 1830s.15
In a medical malpractice case, the plaintiff has the burden of establishing four elements:
“the existence of a physician/patient relationship, the specific medical standard of care from
which it is claimed the defendant deviated, the fact that the defendant deviated from that standard
causing the injuries complained of, and the damages suffered by the plaintiff as a result.”16 In
most medical malpractice trials, these elements are beyond the ordinary understanding of a jury.
As such, expert testimony is used to assist the jury in understanding what did take place, and
what should have taken place.17 However, in some situations, it has been determined that no
expert is needed in order for a jury to determine that negligence must have caused the plaintiff’s
injuries.18 In these cases, the phrase res ipsa loquitur is used, meaning “the thing speaks for
itself.”19
Establishing the existence of a physician-patient relationship is the first hurdle that a
plaintiff must cross in a medical malpractice case.20 Such a relationship is based upon a
“consensual transaction, a contract, express or implied, general or special.”21 This is a
consensual relationship which comes into existence only where a patient has entrusted his
14
FIELDING, supra note 3, at 2.
Id.
16
3-12 Treatise on Health Care Law § 12.09 (M.B. 2005).
17
Id.
18
Id. Such a case might be one where a towel is left inside the abdomen of a patient after surgery.
19
Id.
20
61 AM. JUR. 2D Physicians, Surgeons, & Other Healers § 185 (2004).
21
Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977).
15
5
treatment to a physician and that physician has accepted his case.22 In most circumstances, a
physician is under no obligation to provide his services to any individual.23
Physicians are required to care for and treat their patients with “proper professional
skills” and must “exercise reasonable and ordinary care and diligence toward the patient.”24 In
some jurisdictions, courts have established a duty which demands that physicians use the degree
of skill or care which would be used by “a reasonably competent practitioner in the same class to
which the physician belongs acting the same or similar circumstances.”25 This does not mean
that physicians must act with the greatest degree of skill or care that can be attained in their
field.26 Rather, the physician is expected to employ a reasonable degree of learning, skill, and
experience, such as is possessed by other reasonable physicians.27
After demonstrating that a physician-patient relationship existed between the plaintiff and
the defendant, the plaintiff will be required to prove what the standard of care was for the
procedure he underwent and that the defendant breached this standard of care. Where multiple
methods of performing the same procedure are recognized as acceptable by physicians in the
same specialty as the defendant, his decision to use one as opposed to another is not necessarily a
breach of the standard of care.28 As one court has explained, “[w]hat usually is done may be
evidence of what ought to be done, but what ought to be done is fixed by a standard of
reasonable prudence, whether it usually is complied with or not.”29
22
Prosise v. Foster, 261 Va. 417, 421, 544 S.E.2d 331, 332 (2001).
It is possible for a physician to contract away this right to refuse to treat individuals. Hiser v. Randolph, 126 Ariz.
608, 610, 617 P.2d 774, 775 (Ct. App. Az. 1980), overruled on other grounds by Thompson v. Sun City Community
Hosp., 141 Ariz. 597, 688 P.2d 605 (1984).
24
Keene v. Wiggins, 69 Cal. App. 3d 308, 313, 138 Cal. Rptr. 3, 6 (Ct. App. Cal. 1977); see also, 61 AM. JUR. 2D
Physicians, Surgeons, & Other Healers § 188 (2004).
25
Boody v. United States, 706 F. Supp. 1458, 1463 (D. Kan. 1989); see also, 61 AM. JUR. 2D Physicians, Surgeons,
& Other Healers § 188 (2004).
26
61 AM. JUR. 2D Physicians, Surgeons, & Other Healers § 188 (2004).
27
Boody, 706 F. Supp. at 1463.
28
61 AM. JUR. 2D Physicians, Surgeons, & Other Healers § 198 (2004).
29
Helling v. Carey, 83 Wn.2d 514, 519-20, 519 P.2d 981, 983 (Wash. 1974) (quoting Texas & P. Ry. V. Behymer,
189 U.S. 468, 470, 23 S. Ct. 622, 623 (1903)).
23
6
Frequently misunderstood is the fact that a physician is not “an insurer of his patient.”30
An outcome that is not what the patient expected will not result in a determination of negligence
in a lawsuit for medical malpractice absent some negligence on the part of the physician.31
Negligence is found in cases where the physician fails to comply with the standard of care
applicable to his specialty.32 Even if an outcome is not one which is desired, a physician will not
be found liable for malpractice if he utilizes a method of treatment which other physicians in his
specialty support as a credible method.33 Medical treatment that falls within the standard of care
must be proven by expert testimony.34
Finally, if the plaintiff has been able to prove that the defendant owed him a duty and
breached that duty, the plaintiff must show that this breach caused the damages complained of.35
It is essential to remember that in order for a patient to have a cause of action against his
physician, there must be not only a lack of reasonable care and diligence, but that lack must lead
to a bad result.36 Without some damage having been done, the plaintiff will be without anything
to link the negligent action to. In other words, the negligence would be the proximate cause of
nothing. As such, the plaintiff must be able to demonstrate that some damage has been done.37
B.
What is General Anesthesia?
General anesthesia, invented by Dr. John Warren in 1846, brought with it the hope that
surgery could become more humane than it had been in the past.38 Before the discovery of
anesthesia, patients were frequently strapped to the operating table in order to prevent them from
30
61 AM. JUR. 2D Physicians, Surgeons, & Other Healers §§ 185, 188 (2004).
61 AM. JUR. 2D Physicians, Surgeons, & Other Healers § 185 (2004).
32
Id.
33
Id.
34
Dickerson v. Fatehi, 253 Va. 324, 327, 484 S.E.2d 880, 882 (1997).
35
3-12 Treatise on Health Care Law § 12.09 (M.B. 2005).
36
Pike v. Honsinger, 155 N.Y. 201, 210, 49 N.E. 760, 762 (Ct. App. N.Y. 1989).
37
The foregoing section is intended to serve as only a very brief primer on the subject of medical malpractice law.
For a more detailed discussion of medical malpractice law, see NEAL C. HOGAN, UNHEALED WOUNDS: MEDICAL
MALPRACTICE IN THE TWENTIETH CENTURY (Eric Rise, ed., LFB Scholarly Publishing, LLC 2003).
38
FIELDING, supra note 3, at 6.
31
7
moving from the severe pain that came with surgery performed on a conscious patient.39 It was
hoped that the use of general anesthesia during surgery would allow physicians to perform not
only a greater number of procedures, but procedures that would be more invasive and aggressive
than those performed on conscious patients.40
The use of general anesthesia is commonplace today. General anesthesia serves the dual
purpose of rendering patients unconscious during surgery and relieving pain.41 It is intended to
produce three responses: hypnosis, or lack of awareness and recall; analgesia, or pain relief; and
areflexia, or lack of movement.42 Anesthesiologists are given the task of striking an appropriate
balance when administering general anesthesia to a patient – giving enough to bring about these
desired effects, while ensuring that too high a dose is not administered. Receiving too high a
dose of anesthesia may result in hemodynamic disturbances which require the use of
vasoconstrictor agents in order for the patient to maintain normal blood pressure and cardiac
output, or respiratory depression which would require respiratory assistance following the
procedure.43 JACHO noted in its Sentinel Alert that anesthesiologists must also balance the risks
posed by anesthesia awareness against the risks associated with administering excessive
anesthesia to patients with severe medical conditions.44 Together, these concerns require
anesthesiologists to continuously walk a fine line, ensuring that the patient remains under just the
right about of sedation.
39
Id.
Id.
41
ATTORNEYS’ TEXTBOOK OF MEDICINE 58.10 (3d ed. 2005).
42
Medical Advisory Secretariat: Bispectral Index Monitor, June 2004, available at
http://health.gov.on.ca/english/providers.program/mas/reviews/review_bis_0604.html.
43
Id.
44
Sentinel Event Alert, supra note 4.
40
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III. Anesthesia Awareness
A.
What is Anesthesia Awareness?
Anesthesia awareness has been defined as “being paralyzed while awake or awake while
receiving general anesthetic.”45 Some studies break anesthesia awareness experiences into two
subcategories – awake paralysis, which is defined as an awake patient being inadvertently
paralyzed; and recall during general anesthesia, which occurs when a patient is able to recall
events which took place while he was receiving general anesthesia.46 Other studies divide
awareness into explicit and implicit recall, where explicit recall results in memories ranging from
every word spoken and every action taken by those in the operating room to memories of only a
few sporadic moments during the surgery and implicit recall “emerges indirectly through painful,
often inexplicable, psychological difficulties that appear following surgery, including sleep
disturbances, dreams and nightmares, flashbacks, and anxiety.”47 Explicit recall is the type of
anesthesia awareness most often associated with the traumatic experiences reported by the
media. Although explicit recall will most often form the basis of a medical malpractice lawsuit,
anesthesiologists must also be aware of implicit recall and its potential to serve as the basis of a
lawsuit.48 This paper addresses anesthesia awareness generally, including the various divisions
discussed above.
Patients reporting anesthesia awareness during a surgical procedure have recalled a
variety of experiences.49 These experiences include the inability to breathe, the inability to
45
Domino, supra note 8.
Id.
47
American Association of Nurse Anesthetists, Anesthetic Awareness Fact Sheet, available at
http://www.aana.com/patients.aware/factsheet.asp.
48
Daniel Goleman, Doctors Find that Patients may Still ‘Hear’ Despite Anesthesia, N.Y. TIMES, Oct. 26, 1989, at
B12.
49
For tables summarizing the reports of a number of patients claiming to have experienced anesthesia awareness see
Peter S. Sebel, et al., The Incidence of Awareness During Anesthesia: A Multicenter United States Study, 99
ANESTHESIA & ANALGESIA 833, 835 (2004); D. Schwender, et al., Conscious Awareness During General
Anaesthesia: Patient’s Perceptions, Emotions, Cognition and Reactions, 80 BRITISH J. OF ANAESTHESIA 133, 134-35
(1998).
46
9
move, anxiety, stress, pain, helplessness, panic, auditory perceptions, and the ability to feel the
endotracheal tube in place.50 Interestingly, the experience most frequently discussed in the
media, pain, has been reported less frequently than these other sensations.51
It has been estimated that anesthesia awareness occurs in approximately one to two cases
per 1000 surgeries in the United States.52 This figure is independent of geographic location and
possible differences in anesthetics used or techniques employed.53 When applied to the nearly
20 million procedures requiring administration of general anesthesia that take place in the United
States yearly, it is believed that 26,000 cases of awareness occur in the country each year.54 This
translates to approximately 100 cases of awareness each workday.55 Studies on the incidence of
anesthesia awareness worldwide have found that the frequency of this phenomenon varies
between countries depending upon the anesthetic practices used and the patient populations
served.56
It is the graphic way that the experiences of patients who have suffered anesthesia
awareness are described that makes the phenomenon so frightening to the public. Patients have
reported experiencing awareness at endotracheal intubation or surgical incision.57 One article
has stated that “[v]ictims have reported their awareness of having their flesh ripped off, being
buried alive, helplessness, and screaming inside for help.”58 Another has quoted a patient as
stating that he “was able to think lucidly, hear, perceive and feel everything that was going on
50
Domino, supra note 8; Sebel, supra note 49, at 836.
Domino, supra note 8.
52
Sebel, supra note 49.
53
Id.
54
Id. at 837.
55
Id.
56
Id. at 834.
57
Id. at 838.
58
Webber, supra note 2.
51
10
during the surgery, but . . . was unable to move. It burnt like the fires of hell. It was the most
terrifying, torturous experience you can imagine. The experience was worse than death.”59
The consequences of anesthesia awareness vary greatly. Reported aftereffects include
sleep disturbances such as dreams and nightmares, flashbacks, anxiety, and fear that anesthesia
awareness may happen in future surgeries.60 Some patients doubt their memories of the surgery,
questioning whether they really were conscious during the procedure.61 In extreme cases,
patients may develop post-traumatic stress disorder.62 Many of these after effects are temporary,
subsiding over time.63
B.
How does Anesthesia Awareness Occur?
Although a number of studies have explored the phenomenon of anesthesia awareness,
few definitive answers as to its etiology have been found. Studies have linked anesthesia
awareness to a number of conditions, including the use of light-anesthetic techniques or where
low doses of anesthetic are administered.64 Anesthesia awareness has also been found to be
more likely to occur in cases where nitrous oxide and intravenous agents, such as opioids,
propofol, benzodiazepines, and barbiturates, are used to anesthetize patients as opposed to
inhalation anesthetics or small concentrations of volatile anesthetics.65
Most studies have found that sex and age have no influence on the incidence of
anesthesia awareness. However, logistic regression has shown that anesthesia awareness is
associated with “increased [American Society of Anesthesiologists] physical status, final
59
David R. Dow et al., The Extraordinary Execution of Billy Vickers, the Banality of Death, and the Demise of PostConviction Review, 13 WM. & MARY BILL RTS. J. 521, 546 (Dec. 2004).
60
Domino, supra note 8; Mohamed M. Ghoneim, Awareness During Anesthesia, 92(2) ANESTHESIOLOGY 597 (Feb.
2000).
61
Ghoneim, supra note 60.
62
Domino, supra note 8; Ghoneim, supra note 60. One study has found that nearly fifty percent of patients who
reported anesthesia awareness experienced post-traumatic stress disorder two years following the experience,
although many of these patients did not report significant levels of distress initially. Sebel, supra note 49, at 833.
63
Ghoneim, supra note 60.
64
Domino, supra note 8; Sebel, supra note 49, at 833.
65
Domino, supra note 8; Sentinel Event Alert, supra note 4.
11
disposition to the ICU, and procedure.”66 It has also been shown that patients differ in the dose
of anesthesia required to induce general anesthesia. Patient characteristics responsible for this
individuality include body mass, height, weight, past medical history, and past alcohol and drug
use.67 Even with all of these conclusions, overall, studies have shown that there are no
significant predictors of possible anesthesia awareness.68
Aside from characteristics of the patient and the type of procedure being performed, the
misuse or failure of anesthesia equipment has also been found to cause anesthesia awareness.69
Problems with the labeling of drugs and deficiencies in vigilance, including errors in drug
administration, have been linked to anesthesia awareness in patients.70 The premature lightening
of anesthesia dosage towards the end of a procedure, a practice used to facilitate the turnover of
operating rooms, has also been cited as a cause of anesthesia awareness.71
IV. Past Medical Malpractice Claims Alleging Anesthesia Awareness
Since the 1970s, there has been an increase in claims for anesthesia awareness during
general anesthesia.72 It has been suggested that this increase is the result of the general
population become more informed of the occurrence of anesthesia awareness, rather than an
increase in the incidence of anesthesia awareness events.73 Few reports setting out the number of
medical malpractice lawsuits alleging anesthesia awareness are available. However, the
information that is available, such as news reports covering jury verdicts and interviews with
66
Sebel, supra note 49, at 836. One study found that anesthesia awareness was reported in 0.2-0.4% of nonobstetric
and noncardiac surgery cases, 0.4% of cesarean section cases, and 1.5% of cardiac surgery cases. The incidence of
anesthesia awareness is even higher in trauma surgery cases. Domino, supra note 8. However, another study
concluded that “awareness during anaesthesia [sic] is not only a problem of special surgical procedures but may
occur occasionally during anaesthesia [sic] for almost any elective procedure.” Schwender, supra note 49, at 138;
67
Medical Advisory Secretariat, supra note 42; American Association of Nurse Anesthetists, supra note 47.
68
Sebel, supra note 49, at 836; Bruce D. Gehle, Be Aware of Anesthesia Awareness, available at
http://www.hdjn.com/pdfs/Client%20Advisory%20-%20Anesthesia%20Awareness.pdf.
69
Domino, supra note 8.
70
Id.; Sebel, supra note 49, at 838. Errors in drug administration included syringe swaps, drug ampule swaps,
incorrect intravenous line use, and the administration of the wrong dose of a drug. Domino, supra note 8.
71
Sentinel Event Alert, supra note 4.
72
Domino, supra note 8.
73
Id.
12
plaintiff’s lawyers, indicates that these lawsuits are being brought, and that in more than a few
instances, juries have returned verdicts in favor of patients. In 2003, anesthesia awareness cases
were heard by courts in Alabama, California, Oklahoma, Texas, and Utah, as well as courts in
other states.74
A study which reviewed claims included in the database of the American Society of
Anesthesiologists Closed Claims Project found that seventy-nine of 4,183 claims, or 1.9%, in the
database were the result of anesthesia awareness.75 This proportion is similar to the proportion
of claims brought alleging injuries such as burns, aspiration pneumonia, and myocardial
infarction.76 Compared to other claims in the database, anesthesia awareness claims were more
often filed by women, patients under sixty years of age, and patients undergoing elective
surgery.77
The Closed Claims Project contains data on two types of anesthesia awareness claims: (1)
claims for awake paralysis and (2) claims for recall during general anesthesia.78 Of claims
alleging recall during general anesthesia, eighty-two resulted in a lawsuit, sixty-seven in a
settlement before a court, and forty-nine in payment.79 These proportions were similar to those
for claims alleging other types of injuries found in the Project database.80 The median payment
for claims alleging recall during general anesthesia was $18,000.81 This figure is significantly
lower than the median payment for all other types of claims, which was $100,000.82 For awake
paralysis claims included in the Project database, payments were made in a greater proportion
than for all other claims in the database, although the amount of those payments was less for
74
Gallagher, supra note 9.
Domino, supra note 8.
76
Id.
77
Id.
78
Id.
79
Id.
80
Id.
81
Id.
82
Id.
75
13
awake paralysis claims than for others, with a median payment of $9,500.83 It should be noted
that while the large majority of media attention being paid to anesthesia awareness focuses on
awake paralysis, such claims accounted for only 0.4% of all claims in the Project database, while
claims for recall during general anesthesia accounted for 1.5% of all claims.84
While little data from specific cases is available, reports of some jury verdicts have
appeared in newspapers and other media outlets. In October 2002, an Illinois jury awarded
$165,000 to a woman who allegedly suffered pain for three minutes during a cesarean section
while under general anesthesia.85 In November 2004, a Virginia jury awarded a woman who
alleged she was aware during a ninety-minute cataract surgery $500,000.86 During the trial, the
ophthalmologist performing the procedure testified that he had observed the patient’s discomfort
three times and eventually told the patient to be quiet. The surgical assistant also heard the
patient’s mumbled prayers and moaning.87 Another Virginia woman who claimed to be awake
during a procedure to remove her ovaries remembered hearing her physician take a call from his
wife and daughter during her surgery. She was awarded $150,000.88 Although few reports
provide detailed information on damages awarded to plaintiffs, these examples demonstrate that
juries are willing to accept that anesthesia awareness does occur, even if physicians are not as
willing to do so.
V.
Anesthesia Awareness on Trial
Anesthesia awareness has only recently been recognized as a real problem for
anesthesiologists. Not so long ago, books on anesthesiology and the law did not mention the
83
Id.
Id. Of sixty-one claims for recall during general anesthesia included in the Project database, eighteen (18)
experienced sounds, fifteen (15) experienced feeling surgery without pain, thirteen (13) experienced pain, twelve
(12) experienced paralysis, nine (9) experienced intubation, and seven (7) experienced panic. Id.
85
Ghele, supra note 68.
86
Alan Cooper, Doctor, Group at Fault in Surgery, RICHMOND TIMES DISPATCH, Nov. 18, 2004, at B1.
87
Id.; Ghele, supra note 68.
88
Gallagher, supra note 9.
84
14
idea that a medical malpractice lawsuit alleging awareness could be brought.89 This scenario is
rapidly changing as the public grows more fearful of the phenomenon of anesthesia awareness.
Anesthesiologists are generally the primary target for medical malpractice claims alleging
anesthesia awareness, although any physician using conscious sedation may find himself a
defendant in such a case.90 Hospitals may also be brought into these lawsuits through allegations
that the hospital failed to provide the anesthesiologist with equipment which would have assisted
the anesthesiologist in administering the proper dosage of anesthetic or warned the surgeon that
the patient was aware.91 Given the growing amount of media attention being paid to anesthesia
awareness, and the increasing rate at which these lawsuits are being filed, it is crucial that
physicians and hospitals, as well as the lawyers that defend them, understand both the measures
that can be taken to prevent these medical malpractice lawsuits alleging the occurrence of
anesthesia awareness and how courts can be expected to treat allegations of anesthesia awareness
that are brought before them.
A.
Preventing Claims for Anesthesia Awareness from Arising
As the issue of anesthesia awareness continues to capture the attention, and fears, of the
American population, anesthesiologists and hospitals must begin to consider how they can help
prevent medical malpractice lawsuits for awareness from arising. Opportunities to curtail these
claims exist both before surgical procedures take place and after an incident has been reported by
a patient. A variety of tactics are available to aid anesthesiologists and hospitals in decreasing
the number of anesthesia awareness cases occur and eventually end as lawsuits.
On October 25, 2005 the House of Delegates of the American Society of
Anesthesiologists approved the final report of its Task Force on Intraoperative Awareness. This
89
See, e.g., J. DOUGLAS PETERS, ET AL., ANESTHESIOLOGY & THE LAW (Health Administration Press 1983); CARL
ERWIN WASMUTH, ANESTHESIA & THE LAW (Charles C. Thomas, Pub. 1961).
90
Ghele, supra note 68.
91
Id.
15
is the most thorough document drafted to date for the purpose of assisting anesthesiologists and
hospitals in minimizing the risk of anesthesia awareness for patients placed under general
anesthesia.92 Included among the recommendations made in this advisory are (1) that the
anesthesiologist conduct a thorough preoperative evaluation of the patient, (2) that the patient be
informed of the possibility of anesthesia awareness taking place if he is at a substantially
increased risk of such an experience, (3) that all anesthesia equipment be properly maintained
and inspected, (4) that the anesthesiologist utilize multiple methods of monitoring patients under
general anesthesia, and (5) that the hospital and anesthesiologist appropriate handle reports of
anesthesia awareness, among others.93 Other parties have also made suggestions as to how
anesthesia awareness could be better managed. These suggestions include the idea that the
anesthesiologist check the delivery of the anesthesia to the patient, consider pre-medicating with
amnestic drugs, give adequate doses of induction agents, avoid muscle paralysis unless required,
use amnestic drugs when a patient is only able to tolerate light anesthesia, and preventing the
patient from hearing operating room sounds.94
The issuance of the American Society of Anesthesiologists report, together with the
JCAHO Sentinel Event Alert on anesthesia awareness, is a strong signal that hospitals and
anesthesiologists have begun to recognize that steps must be taken both to reduce the chance that
a patient will experience anesthesia awareness, and to more adequately handle claims made
alleging such experiences. A number of the recommendations, along with additional
recommendations for preventing the occurrence of claims for anesthesia awareness, are
discussed below.
92
This document is a practice advisory, which does not establish a standard or guideline for anesthesiologists and
does not identify a practice or approach as the standard of care. Press Release, American Society of
Anesthesiologists, Report on Awareness under General Anesthesia Says Anesthesiologists have Multiple Tools and
Approaches for Minimizing Risks (Oct. 25, 2005).
93
American Society of Anesthesiologists Task Force on Intraoperative Awareness, Practice Advisory for
Intraoperative Awareness and Brain Function Monitoring 7-24 (Oct. 25, 2005).
94
Suzanne C. Beyea, Addressing the Trauma of Anesthesia Awareness, AORN J. (Mar. 2005); Sentinel Event Alert,
supra note 4; Ghoneim, supra note 60.
16
1. Administering Warnings Prior to Surgical Procedures
A recent decision from the Court of Appeals of California held that anesthesiologists are
not required to warn patients of the possibility of anesthesia awareness prior to a surgical
procedure. This decision came in 2003, when the court heard the case of Kiljian v. Grimes.95 In
that case, the plaintiff experienced anesthesia awareness during a gall bladder operation.96 One
of the allegations set forth in her lawsuit against the anesthesiologist was that he failed to inform
her of the risks of general anesthesia, including the possibility of anesthesia awareness occurring
during the procedure.97 Both the anesthesiologist and the hospital presented expert opinions that
anesthesia awareness occurs so infrequently that it need not be disclosed to the patient or
discussed with the patient in order for the standard of care for informed consent to be complied
with.98 The Court of Appeals upheld the trial court’s grant of the defendant’s motion for
summary judgment, as the plaintiff provided no evidence to the contrary to support her allegation
that the anesthesiologist was required to inform the patient of the risk of anesthesia awareness in
order for the standard of care to have been met.99
The Kilijan decision indicates that courts are not likely to require anesthesiologists to
warn all patients about the possibility of anesthesia awareness, at least not over the course of the
next few years. However, the anesthesiologist may want to consider making these warnings
prior to surgery either to select groups of patients, or to all patients who will undergo a surgical
procedure using general anesthesia. It has been suggested that warnings be administered to
patients who possess risk factors that have been associated with the occurrence of anesthesia
awareness.100 However, as the public becomes increasingly aware of the phenomenon of
95
Kiljian v. Grimes, No. B161211, 2003 Cal. App. Unpub. LEXIS 10193 (Cal. Ct. App. Oct. 30, 2003).
Id. at *2.
97
Id.
98
Id. at *3.
99
Id. at *3, *8.
100
Sentinel Event Alert, supra note 4; Ghoneim, supra note 35.
96
17
anesthesia awareness, administering warnings to all patients as to the possibility of anesthesia
awareness, may prove beneficial in a multitude of ways. Providing such warnings will not
prevent the patient from being traumatized should awareness occur during the procedure, but it
may help the patient to understand what is taking place should he experience anesthesia
awareness occur, that it is normal, and may encourage the patient to report the incident more
quickly than a patient who has not already discussed anesthesia awareness with his physician
might. The warnings will also help the patient to understand that their anesthesiologist will take
their report seriously, and will give the patient the ability to begin to understand what took place
before the anesthesiologist can help them seek the professional help they need to cope with the
experience by referring the patient to a psychiatrist or psychologist. In addition, by adopting a
policy of providing these warnings to all patients undergoing general anesthesia, hospitals and
anesthesiologists will be well equipped to handle a medical malpractice lawsuit based on an
allegation awareness where the court finds that such a warning is necessary to find compliance
with the standard of care, even though the Kilijan decision did not come out that way.
Should the hospital or anesthesiologist conclude that it would not be beneficial to warn
all patients of the risk of anesthesia awareness, consideration should be given to a policy of
providing warnings to patients who independently express concern about anesthesia awareness
taking place during their surgical procedure. As will be discussed below, the relationship a
patient has with his physician plays a significant role in that patient’s decision as to whether he
should file a medical malpractice lawsuit against the physician. A patient who has expressed a
concern about an issue, which was not then addressed in detail by his physician, may feel that he
was deceived by his physician and as a result may be more likely to bring a medical malpractice
lawsuit. Taking seriously these concerns when expressed by patients, and following them with
18
an adequate warning as to the likelihood that anesthesia awareness may occur, may be a first step
in preventing what could eventually become a lawsuit.
2. Administering an Adequate Dosage of Anesthetic Drugs and Discontinuing the Practice of
Lightening
As noted above, it is not possible to completely eliminate all incidences of anesthesia
awareness. This is due, in part, to the fact that the anesthesiologist must administer lighter doses
of anesthesia to some patients in order to protect their safety.101 At the same time,
anesthesiologists need to ensure that they administer an adequate dosage of the anesthetic drugs
so that the patient not only remains safe, but does not experience anesthesia awareness during the
surgical procedure. This requires a careful balancing of the risk associated with giving the
patient too high a dose of anesthesia and the possible risk of the patient experiencing anesthesia
awareness during the procedure.
Along the same lines as providing the patient with the adequate dosage, hospitals and
anesthesiologists should discontinue the practice of lightening patient’s anesthesia before a
procedure has been completed in order to increase the turnaround of hospital operating rooms.102
This practice has been associated with the incidence of anesthesia awareness in medical studies,
and is one of the most easily eliminated risk factors for anesthesia awareness. Although
increasing the turnaround of operating rooms is a practice designed to multiply the number of
surgeries physicians can perform in one day, and hence the profit the hospital and its physicians
can earn in a day, the effect can be quite the opposite if anesthesia awareness, and a medical
malpractice lawsuit, is the end result. In these cases, the resulting lawsuit could very easily
consume this additional profit, and more, if a verdict in favor of the plaintiff is the ultimate
result.
3. Use of Monitors
101
102
Press Release, supra note 92.
Sentinel Event Alert, supra note 4.
19
A factor in the occurrence of anesthesia awareness is the fact that the types of monitoring
currently used during surgery do not detect the occurrence of anesthesia awareness.103 The
physiologic parameters currently monitored include blood pressure, heart rate, and end-tidal
anesthetic concentration.104 Normally, blood pressure and heart rate will not increase as a result
of a patient experiencing pain during surgery, because patients going under general anesthesia
are commonly given beta blockers, calcium channel blockers, or strong paralytic drugs which
prevent blood pressure and heart rate from rising during surgery.105
Due to the deficiencies in these current forms of monitoring, much interest has developed
in a new form of monitoring for patients under general anesthesia. One such monitor is the
Bispectral Index (BIS) monitor developed by Aspect Medical Systems of Newton,
Massachusetts.106 Innovative monitors such as the BIS use a processed electroencephalogram
derivative to monitor the effects of anesthesia on the brain.107 Some believe these monitors have
the ability to measure the hypnotic component of the anesthetic state.108
Although these monitors have a number of proponents, there is a large contingent of
physicians who are less certain of their ability to help prevent anesthesia awareness. Some
physicians allege that the sensitivity and specificity of these instruments have not been perfected,
and a number of hospitals have found that implementing these monitors into their operating
rooms would not be cost-effective.109 One study found that there was “no significant association
between the use (or otherwise) of BIS and the incidence of awareness.”110 However, another
103
Sebel, supra note 49, at 833.
Id.
105
Sentinel Event Alert, supra note 4; Gehle, supra note 43.
106
Id. at 833.
107
Sebel, supra note 49, at 833.
108
Id. at 833-34.
109
Lennmarken, supra note 5; Avery Comarow, Anesthesia Awareness: Brain Monitors Get a ‘Tepid’ Endorsement,
U.S. NEWS & WORLD REPORT, Oct. 26, 2005, available at
http://www.usnews.com/usnews/health/briefs/publichealth/hb051026a.htm.
110
Sebel, supra note 49, at 836.
104
20
study of anesthesia awareness cases found that the incidence of awareness was reduced by
eighty-two percent when the BIS index was monitored.111 Significantly, the BIS monitor was
mentioned in JCAHO’s Sentinel Event Alert on anesthesia awareness, wherein the Food and
Drug Administration was quoted as saying that the “[u]se of BIS monitoring to help guide
anesthetic administration may be associated with the reduction of the incidence of awareness
with recall in adults during general anesthesia and sedation.”112
BIS monitors are currently being used in approximately forty percent of all hospital
operating rooms in the United States, and on approximately twelve percent of patients
undergoing surgery using a general anesthetic.113 Some anesthesiologists believe that patients in
certain groups should always be monitored with a BIS monitor when under general anesthesia.
These groups include cardiac patients who must receive light doses of anesthesia to keep their
heart from becoming stressed, trauma patients receiving low-dose anesthesia, emergency
cesarean section patients who must receive minimal anesthesia to protect the baby, and patients
who have expressed concerns about the possibility of awareness during surgery.114
Other technologies and devices which would allow anesthesiologists to measure the
depth of anesthesia are also being explored. These include SNAP electroencephalogram
monitors, Auditory Evoked Potential (AEP) monitors, Patient State Analyzer 4000 (PSA 4000),
Narcotrend, Spectral Edge Frequency 95 (SEF 95), and the Automated Responsiveness Test
(ART).115 These other types of monitors have not received the widespread media attention that
the BIS monitor has seen. Given the fact that studies conducted to date have been unable to
pinpoint why some patients experience anesthesia awareness while others do not, preventing
111
Lennmarken, supra note 5.
Sentinel Event Alert, supra note 4.
113
Comarow, supra note 109.
114
Id.
115
Medical Advisory Secretariat, supra note 42. For a study on monitoring patients while under anesthesia, see
Chantal Kerssens, et al., Awareness: Monitoring versus Remembering What Happened, 99 ANESTHESIOLOGY 570
(Sep. 2003). For an example of the type of information available to the public regarding consciousness monitors see
http://www.outpatientsurgery.net/2002/os09/f3.shtml#2a.
112
21
researchers from reaching any concrete conclusions on ways that the incidence of anesthesia
awareness can be prevented without monitoring, these new monitors stand to play a large role in
the prevention of anesthesia awareness in the future. Not all hospitals have invested in BIS
monitors at this point, but for those anesthesiologists who have access to them, they are an
additional safeguard that can be utilized to prevent incidences of anesthesia awareness.
As these monitors begin to be used by a greater proportion of anesthesiologists, questions
about their use will undoubtedly become more frequent in medical malpractice trials involving
an anesthesia awareness issue. Where no monitor was utilized, anesthesiologists will find
themselves confronted with questions as to why this type of monitoring was not available at the
time the surgery occurred.116 Potentially worse, the anesthesiologist will have to explain why a
BIS monitor was not used if one was available to them.117 Questions will also arise regarding
whether the BIS monitor was used appropriately.118 The potential for these questions to arise
during a medical malpractice trial illustrates why it is not only necessary that these new monitors
be utilized in all surgical procedures, but that anesthesiologists ensure that they are properly
trained in their use, in interpreting the readings these monitors produce, and that the monitors are
inspected regularly and appropriately maintained.
In addition to implementing these new monitoring devices in operating rooms,
anesthesiologists must also recognize that the use of BIS monitors will not prevent all cases of
anesthesia awareness.119 This does not mean that these monitors are not a promising
development for reducing the incidence of anesthesia awareness. What it does mean is that
anesthesiologists who integrate the use of BIS monitors into their practice cannot rely solely on
the readings produced by the monitors in ascertaining whether a patient is experiencing
116
Ghele, supra note 68.
Id.
118
Id.
119
Id.
117
22
anesthesia awareness. In cases where the patient is not placed completely under general
anesthesia, but is given a short-acting sedative followed by a regional anesthetic to block pain for
the entire procedure, the only indication of the patient being aware will be vital signs or physical
movements.120 In such cases, anesthesiologists will need to be alert to such signs and react
appropriately. As the President of the American Society of Anesthesiologists has stated, “[t]he
most important monitor in the operating room is the anesthesiologist, who has twelve years of
medical training and a wealth of experience to draw on when deciding what is appropriate for
each individual patient.”121
4. Adequately and Appropriately Handling Patient Reports
Anesthesiologists receiving reports of anesthesia awareness from patients following
surgery have been encouraged by JCAHO to interview the patient in order to obtain a detailed
account of what the patient experienced. This interview should be recorded in the patient’s
chart.122 During this interview, the anesthesiologist should sympathize with the patient, try to
offer potential explanations for what occurred, apologize for the occurrence, and offer to refer
the patient to a specialized professional who can offer psychological support.123 It is also
important that the patient be reassured that anesthesia awareness is not likely to occur during
future surgeries.124 Following this interview, the anesthesiologist should notify the patient’s
surgeon and nurse, as well as the hospital lawyer of the experience the patient has reported.125 It
is also important that the anesthesiologist follow up with the patient in the days following the
experience, including following up by telephone after the patient has been discharged from the
120
Id.
Press Release, supra note 92.
122
Sentinel Event Alert, supra note 4; Ghoneim, supra note 35.
123
Sentinel Event Alert, supra note 4; Ghoneim, supra note 35.
124
Ghoneim, supra note 35.
125
Sentinel Event Alert, supra note 4; Ghoneim, supra note 35.
121
23
hospital.126 The anesthesiologist should also refer the patient to a psychologist or psychiatrist as
soon as possible.127
Anesthesiologists must establish open communication with their patients early on in
cases where anesthesia awareness has been reported. An important factor contributing to the
communication between a patient and his physician is the physician’s willingness to be upfront
with the patient and his family in informing them about maloccurrences.128 Speaking openly and
honestly with the patient about what took place during the procedure is critical. Many patients
who have filed medical malpractice lawsuits have reported that one of the motivations behind
their filing a lawsuit was their desire to learn the facts about what actually happened during the
procedure and to hold their physician accountable.129 These individuals also reported that they
felt they were “getting inadequate information” or that “there was a cover-up” following their
experience with the physician.130 Several concluded that if their physician had been upfront in
speaking to them about their experience, they may not have come to the decision to file a
medical malpractice claim.131
Proper handling of the report of an anesthesia awareness experience is crucial both to the
patient and to the physician. Providing the patient with the information he needs allows him and
his family to put the experience into perspective and to begin the process of closure when
necessary.132
5. Treating Patients with Compassion
126
Ghoneim, supra note 35.
Sentinel Event Alert, supra note 4; Ghoneim, supra note 35. In its Sentinel Event Alert, JCAHO also provided
recommendations for health care organizations which may help prevent the occurrence of anesthesia awareness. As
this article primarily addresses physicians and not health care organizations, these recommendation are not provided
here.
128
FIELDING, supra note 3, at 177.
129
Id.
130
Id. at 177-78.
131
Id. at 178.
132
Id.
127
24
Just as important as the actions an anesthesiologist takes before and during surgery are
the actions that the anesthesiologist takes after the procedure has been completed. Obviously,
anesthesia awareness is a traumatic experience for the patient who has experienced it. However,
it is also traumatic for the anesthesiologist. No physician likes to hear that something did not go
as planned during a procedure, and a report of anesthesia awareness brings about a period of
questioning about why the anesthesia awareness occurred and what actions the patient will take
as a result. By approaching reports of anesthesia awareness with compassion, anesthesiologists
can gain some measure of control over the future actions taken by the patient.
It is quite possible for awareness cases to be handled in a way that may not result in a
malpractice lawsuit against the anesthesiologist. Treating the patient with compassion becomes
incalculably important when a medical malpractice claim arises.133 For example, the
Washington Post has reported that Inova Fairfax Hospital, located in Virginia, has had ten cases
of anesthesia awareness reported in the past five years – a period of time during which 200,000
surgeries had been performed. None of those cases of anesthesia awareness have resulted in a
lawsuit. According to Patrick W. Clougherty, the Chief of Anesthesiology at Inova Fairfax
Hospital, this is due to the fact that all these claims were investigated and handled with
compassion.134 This example demonstrates the strong impact that the way a claim of anesthesia
awareness is handled by the anesthesiologist can have on the ultimate path the patient takes in
resolving the claim.
Studies have also shown that, generally, female physicians are less likely to be sued by
patients than male physicians.135 The reason for this has been found to be that “although women
approach medical problems from the same perspective as men, they tend to be more aware of the
personal and social concerns of their patients and they occasionally make some attempt to
133
Domino, supra note 8.
Boodman, supra note 5.
135
FIELDING, supra note 3, at 176.
134
25
resolve these problems . . ..”136 In addition, patients have citied a poor relationship with their
physician as an important factor in the decision to file a claim against that physician.137 These
facts emphasize the importance of discussing personal problems which may be related to the
patient’s condition with the patient, as well as establishing good communication with the
patient.138 Doing so helps the patient to see the physician as human, making that patient less
likely to file a lawsuit.139 It has been noted that “[p]atients are less likely to sue physicians
whom they regard as more like themselves.”140
Anesthesiology is thought by many to be a specialty that attracts physicians who do not
typically think in psychological terms or spend much time with patients.141 Oftentimes, the
anesthesiologist meets a patient just prior to surgery, and does not see that patient afterward.142
Anesthesiologists should ensure that the health care provider who receives an initial report from
a patient that an episode of anesthesia awareness occurred during surgery notifies the
anesthesiologist as soon as possible. After receiving such notification, the anesthesiologist
should follow up with the patient in an effort to understand what the patient experienced. This
contact should be compassionate and understanding in nature. By expressing to the patient that
the anesthesiologist believes what the patient is reporting, and by taking the time to explain the
possible causes of the experience, the anesthesiologist can prevent the patient from developing
feelings of animosity toward the physicians involved in the surgery. Oftentimes this is enough to
curtail a full-fledged lawsuit against the anesthesiologist.
6. Summary
136
Id. at 177.
Id.
138
Id.
139
Id. at 178.
140
Id.
141
Boodman, supra note 5.
142
In fact, one study reported that half of the patients in that study did not report their anesthesia awareness
experience to their anesthesiologist because they did not seem him after the surgery. Ghoneim, supra note 35.
137
26
Each of the steps outlined above will place the anesthesiologist in a position to either
decrease the likelihood that a patient will experience anesthesia awareness or the risk that a
patient who has endured such an experience will file a medical malpractice claim as a result.
However, even with all these precautions, there is no guarantee that a patient will not experience
anesthesia awareness, and that the end result will not be a medical malpractice lawsuit. As noted
above, some patients will be more likely to experience anesthesia awareness regardless of what
precautions are taken by the anesthesiologist. These individuals, even knowing that anesthesia
awareness resulted from the need to guard the safety of the patient, may file a lawsuit against the
anesthesiologist anyway. Similarly, those who experience anesthesia awareness after being
warned, even when they have been treated with compassion following the experience, may still
feel that filing a lawsuit is the best course of action for them to take. In those cases where a
medical malpractice lawsuit becomes a part of the physician-patient encounter, it is crucial that
the anesthesiologist and his lawyer understand how courts are likely to treat these cases, and
what factors make the defense of these cases unique.
B.
Treatment of Anesthesia Awareness Claims by Courts
Largely due to the fact that anesthesia awareness claims have only recently begun to
make their way into the court system in any significant numbers, little information is available to
help lawyers and physicians predict how courts will react to these lawsuits and the unique
problems they bring. This lack of information becomes ever more vivid when one considers
that fact that the majority of anesthesia awareness claims heard by courts in the past have never
moved beyond the trial level. Without the opinions of courts of appeal to serve as a guide, it is
difficult to know with any certainty what the future holds for those facing a lawsuit alleging that
medical malpractice has resulted in a patient’s experience of anesthesia awareness. Two areas of
particular concern for anesthesiologists are how courts will handle proof presented by plaintiffs
27
to establish that an incident of anesthesia awareness has taken place and how courts will react to
anesthesiologists’ defense that an incident of anesthesia awareness, if shown to have occurred,
did not come about as a result of any negligence on the part of the anesthesiologist.
Anesthesiologists and their lawyers must carefully consider each of these issues when faced with
a lawsuit based on an incident of anesthesia awareness.
1. Proving that a Patient Experienced Anesthesia Awareness
One of the first obstacles that will face a patient claiming to have experienced anesthesia
awareness will be proving that the event actually took place. In many medical malpractice cases,
the fact that an individual has suffered some injury will be somewhat obvious. For example, in a
claim against an orthopedic surgeon alleging that a broken leg was set incorrectly, x-rays may be
used to reveal that the bone healed incorrectly and other orthopedic surgeons will be able to
testify about the condition of the leg when they saw it after it had healed. However, in cases
involving an allegation of anesthesia awareness, unless another person present in the surgical
suite had observed the pain and discomfort of the patient, the only source of information about
what took place is the patient himself.143 This would require a jury to rely only on the patient’s
insistence that the incident took place, and the patient’s description of the pain and suffering
experienced, in determining whether there is any injury for which the plaintiff could be
compensated. Recall that an injury is a required element for a medical malpractice case.
Negligence alone, without damages, is not enough.144
Until recently, many who experienced awareness during surgery did not file medical
malpractice claims against the anesthesiologist involved in the procedure because they had no
way to prove it had happened.145 As the public and physicians become more aware of the fact
that anesthesia awareness truly does occur, reports of its occurrence can be expected to be met
143
Ghele, supra note 68.
Pike v. Honsinger, 155 N.Y. 201, 210, 49 N.E. 760, 762 (Ct. App. N.Y. 1989).
145
Tresa Baldas, New Malpractice Concern: Waking in Surgery, NAT’L LAW J., Nov. 15, 2004.
144
28
with less skepticism both by physicians and juries. However, due to the unique nature of this
type of claim, in that only the patient knows for sure whether the event really took place and
what type of experience it was, the anesthesiologist must remain at least somewhat defensive in
terms of these cases. While they must take reports of anesthesia awareness from patients
compassionately, these physicians must also understand that an injury that no one but the patient
can testify to is the type of injury begging to be used in fraudulent claims.
It is difficult to predict how courts will handle the issue of proof of in jury in the
increased number of anesthesia awareness cases that are expected to be brought in coming years.
The lack of appellate decisions dealing with anesthesia awareness makes such predictions even
harder to make. However, a number of appellate courts have addressed the proof of injuries
alleged to have taken place where there is no corroborating evidence of those injuries. These
decisions have been found largely in the context of repressed memories of sexual abuse. Many
courts have found this type of evidence to be problematic, taking issue with the fact that
evidence from the litigant “rests on a subjective asserting that wrongful acts occurred and that
injuries resulted,” and that there is “no objective manifestation of these allegations.”146 These
courts have also held that testimony about the incident and the resulting evidence from family,
friends, or treating psychologists could not provide objective evidence that the acts alleged to
have taken place ever really occurred.147 Recognizing that child sexual abuse is “absolutely
reprehensible and a shock to the conscience of the court,” because the allegations being made
could not be corroborated or refuted, courts have refused to extend the statute of limitations in
146
Tyson v. Tyson, 727 P.2d 226, 229 (Wash. 1986), superseded by statute as stated in Hamm v. Hamm, 2004
Wash. App. LEXIS 2309 (Wash. Ct. App. Oct. 11, 2004).
147
Id.
29
child abuse cases where it is claimed that the litigant repressed the memory and the only
evidence available is the testimony of the victim, his family, friends, and physicians.148
If these cases are any indication of the direction that courts may take in reviewing cases
of anesthesia awareness, they seem to predict that judges may look upon allegations of
anesthesia awareness with a grain of skepticism. However, anesthesiologists and their lawyers
must keep in mind the fact that it will not always be the case that the allegations of the litigant
will be uncorroborated. For example, at times the memory of the patient will help him to
establish that anesthesia awareness did in fact occur. For example, in a case heard by the
Virginia Circuit Court of Newport News, a woman who alleged to have experienced anesthesia
awareness was able to recall that the physician had taken a telephone call from his wife and his
daughter during the procedure – incidents which were confirmed by others who had been present
in the operating room.149 In other cases, observations made by the anesthesiologist or others
participating in the procedure may assist the plaintiff in proving that he did experience anesthesia
awareness. A physician and a surgical assistant both testified at trial that they heard the plaintiff
mumbling prayers, and the physician testified that he told the patient to be quiet at one point
during the surgery.150 In cases such as these, where the plaintiff’s testimony has been
corroborated or where observations made by others indicate that the patient experienced
anesthesia awareness, the evidence may be strong enough to alleviate any fears of fraud and to
demonstrate that the patient really did experience anesthesia awareness to the satisfaction of the
court.
148
Sanchez v. Immaculate Heart of Mary Catholic Church, 873 S.W.2d 87, 92 (Tex. Ct. App. 1994); see also, State
v. Martin, 684 P.2d 651, 657, 659 (Wash. 1984) (Stafford, J. concurring, Brachtenbach, J. concurring).
149
Baldas, supra note 145.
150
Cooper, supra note 86.
30
One plaintiff’s attorney has described anesthesia awareness claims as a situation of “the
patient’s word against the doctor’s.”151 However, in such cases, the doctor can say little more
than that he is unsure what really took place while the patient was under anesthesia. It can be
expected that as additional studies into the causes of anesthesia awareness are completed, it will
become a side-effect that is met with less skepticism, and anesthesiologists will find it difficult to
testify that the patient absolutely did not experience anesthesia awareness.152 Given the fact that
the physician has no word to give in anesthesia awareness cases, it will be left to the courts to
determine how best to balance the interests of patients who really have suffered injuries as a
result of an anesthesia awareness experience against the interests of anesthesiologists who face
the possibility of numerous fraudulent anesthesia awareness claims being brought against them.
If the decisions of courts in cases addressing uncorroborated memories of child sexual abuse are
any indication, it appears that the balance may be struck in favor of the physicians. Only time
will tell for sure.
2. Proving that Negligence was not the Cause of the Anesthesia Awareness
As discussed above, no precautions will ever eliminate all cases of anesthesia awareness.
A group of patients that will always be susceptible to anesthesia awareness are patients that have
a health condition which requires the administration of a minimal dosage of anesthesia. In these
cases, the prudent anesthesiologist will have weighed the risk of complications as a result of
administering too high a dosage of anesthesia against the risk that a patient given a lower dose of
anesthesia will experience awareness during the procedure. Most frequently, this balance will
tilt toward administering a low dose of anesthesia, increasing the likelihood that the patient will
experience awareness during surgery. The result, where the risk of awareness becomes a reality,
may be a lawsuit filed against the anesthesiologist.
151
152
Baldas, supra note 145.
Although, this may change as monitoring devices are used more regularly and become more precise over time.
31
In this type of case, the anesthesiologist and his lawyer must remember that an outcome
that is not optimal does not create liability for medical malpractice.153 As discussed above,
absent negligence, medical malpractice has not occurred.154 The anesthesiologist facing a
lawsuit arising from a circumstance such the one described above will want to ensure that he
obtains expert witnesses who will testify to the fact that a reasonable anesthesiologist in the
circumstances of the defendant would have acted in the way the defendant did – administering a
lower than normal dosage of the anesthesia due to the medical condition of the patient. So doing
will establish that negligence did not play a role in the patient experiencing anesthesia
awareness.
However, while such expert testimony may clearly demonstrate to a judge that
negligence did not play a role in the injury suffered by the plaintiff, in the case of jury trials, the
outcome may not be so easily predicted. Juries are much more unpredictable than judges. It is
not unheard of for a jury to return a verdict in favor of the plaintiff, only to later report that they
did not feel the physician was negligent, but that the members of the jury simply felt sympathetic
toward the plaintiff. This type of “do unto others as you would have them do unto you”
philosophy held by some jurors creates significant problems in predicting how juries will
respond at a jury trial for a medical malpractice case. What may be described as the “empathy
factor,” the fact that juries often find it difficult not to place themselves in the shoes of the
plaintiff alleging to be injured, turns a jury into a wild card of sorts, even for a lawyer with a very
strong case. Although present in all personal injury lawsuits, the empathy factor takes on even
greater significance in cases where the injury alleged is anesthesia awareness. Anesthesiologists
relying on the defense that no negligence took place must understand this empathy factor and
how to counteract it.
153
154
61 AM. JUR. 2D Physicians, Surgeons, & Other Healers § 185 (2004).
Id.
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By their very nature, medical malpractice claims involve allegations that some kind of
damage has been done to a patient by their physician. The empathy factor is present in all
medical malpractice cases due both to the nature of the physician-patient relationship and the
fear harbored by many Americans that they will suffer an injury while being treated for an illness
or injury. However, anesthesia awareness claims increase the empathy factor significantly.
Surgery strikes fear in many people. The idea of a patient being made unconscious through the
use of drugs and having physicians perform invasive procedures while the patient is unaware and
unable to object if anything seems to be going wrong, makes many adults wary. Jurors who have
undergone surgical procedures will have personal experience with this fear. Those who have
never undergone surgery will not find it difficult to imagine the nervousness that comes with
being a patient in a surgery procedure.
Those who have experienced anesthesia awareness often describe it in graphic terms.
The pain associated with anesthesia awareness has been described as burning like the fires of hell
and individuals have reported feeling as though they were trapped in a box when discussing their
anesthesia awareness experiences.155 While descriptions given by patients who did not
experience pain during their episode of anesthesia awareness may not be this graphic, these
individuals will testify as to their feelings of paralysis, their fears of death, and the other
emotions that played a part of their anesthesia awareness experiences – descriptions which, while
decidedly less graphic, will nonetheless strike fear in the minds of jurors. This is the element of
the anesthesia awareness trial which will most significantly increase the empathy factor amongst
jurors. The experiences of patients who have suffered anesthesia awareness are much different
Dow, supra note 59; Sebel, supra note 49. Other descriptions provided by patients include the following: “‘I
woke up in surgery and experienced hands working inside my heart and my body being very cold, numb, paralyzed
with my chest torn open. All of this was profoundly frightening.’” Foreman, supra note 5. “‘I can remember
praying to God, screaming, but no sound came out.’” Id. “‘The pain was like that of a tooth drilled without local
anesthetic – when the drill hits a nerve. Multiply this pain so that the area involved would equal a thumb-print, then
pour a steady stream of molten lead into it.’” Ghoneim, supra note 35.
155
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than those of patients who claim that their broken arm was set incorrectly or that a physician
failed to properly diagnose a medical condition, and the descriptions they provide to jurors will
reflect that.
Finally, if a patient had a negative experience following the episode of anesthesia
awareness – perhaps where his physician, or even his family, did not believe his report – this will
also increase the empathy factor amongst the jurors. In such cases, the patient is not only
testifying that he suffered through a traumatic experience, but that when he sought help and
explanations, he were told that the experience did not actually occur. Upon hearing such
testimony, jurors may feel that although the anesthesiologist did not act in a negligent way, the
plaintiff deserves to be compensated for this experience. In fact, it may be the case that even if
the anesthesiologist did properly handle the patient’s report of anesthesia awareness, jurors may
feel that the doubt the plaintiff was subjected to by his family and friends merits some type of
compensation, and that the anesthesiologist, armed with medical malpractice insurance, is the
most appropriate person to pay such compensation, although not at fault himself. In such
situations, the physician may appeal the verdict, but at an even greater cost in time, legal
expenses, and emotional investment, than he has already expended to take the case to trial
originally.
In an effort to protect oneself from lawsuits brought by patients who suffer an episode of
anesthesia awareness through no negligence of the anesthesiologist, physicians should ensure
that they obtain a signed informed consent waiver, which specifically addresses the fact that the
patient has been informed of the possibility of anesthesia awareness. As noted above, due to the
low risk of such a side effect taking place, courts have not yet held that informing patients of the
risk of anesthesia awareness is necessary in all cases. However, by obtaining such a signed
waiver, the anesthesiologist will be able to demonstrate to the jury not only that the anesthesia
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awareness was not the result of negligence using expert testimony, but he will be able to use the
informed consent waiver to illustrate the fact that the patient understood that this was a risk
associated with the surgical procedure due to precautions that the anesthesiologist had taken as a
result of the patient’s condition.
VI. Conclusion
Anesthesia awareness has become one of the most frequently reported medical issues in
recent years. Due to the traumatic nature of the experience and the graphic way in which
anesthesia awareness has been described by those who have experienced it, it has quickly
garnered the attention of patients and anesthesiologists alike. Adding to the mystery surrounding
the issue is the difficulty inherent in monitoring a patient’s level of consciousness during a
surgical procedure and the fact that the only person who knows for sure what took place during
these experiences is the patient. These factors make anesthesia awareness a complex problem –
one which courts are likely to see more of in coming years.
Despite the uncertainty that still surrounds anesthesia awareness, there are a number of
precautions that anesthesiologists may take in order to reduce both the likelihood that a patient
will experience anesthesia awareness and the risk that a patient who does experience anesthesia
awareness will ultimately file a lawsuit as a result of the experience. Although no measures will
ever completely eliminate the risk that anesthesia awareness may occur, precautions such as an
advanced warning of the possibility of anesthesia awareness, utilizing BIS monitors in the
operating room, administering adequate dosages of anesthesia to patients, terminating the
practice of early lightening, appropriately handling reports of anesthesia awareness, and
responding to reports of anesthesia awareness in a compassionate manner, may all help prevent
both the incidence of anesthesia awareness and the risk of a medical malpractice lawsuit.
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Even taking all of these recommended precautions, anesthesiologists may still be the
target of medical malpractice lawsuits involving an anesthesia awareness claim. Little reliable
information as to verdicts in prior anesthesia awareness cases is available, and at this time few of
these cases have been appealed. Taken together, these facts make anesthesia awareness cases a
wild card for courts in most jurisdictions. The fact that only the patient can truly know what
took place during the surgical procedure creates a unique causation issue, rarely seen by courts.
It is possible that judges sympathetic to physicians will find a patient’s own testimony, alone or
in conjunction with the testimony of his family, friends, and physicians, is inadequate to prove
causation. Unfortunately, only time can truly tell how courts will respond to these medical
malpractice cases. This uncertainty requires anesthesiologists and lawyer to build a strong
defense around the evidence that supports the fact that no negligence took place on the part of
the anesthesiologist, and to present a case that will adequately respond to the empathy factor that
is so significant in medical malpractice trials, especially those alleging an occurrence of
anesthesia awareness.
Ultimately, anesthesiologists must begin to more actively protect both themselves and
their patients from the incidence of anesthesia awareness. As the medical community continues
to explore this phenomenon and the reasons why it occurs, additional safeguards will be found
which anesthesiologists will be able to implement during surgical procedures. Until that time,
those practices outlined here should serve as the foundation on which new practices can be
established which will help reduce the incidence of anesthesia awareness in coming years.
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