Malpractice Liability for an Anesthesia Error

Even in the twenty-first century, the administration of anesthesia can be dangerous. Complications can range from the use of too much anesthesia, to too little anesthesia, or use of the wrong type of anesthesia. But do those kinds of errors amount to medical malpractice? If they do, is the hospital liable, or the anesthesiologist? How can you prove it? Read on for the answers.

What is Anesthesia?

There are three main types of anesthesia:

• general anesthesia, where the patient is completely unconscious
• regional anesthesia, where only a part of the body is anesthetized, such as a spinal block, and
• local anesthesia, where the drug is applied only to one small part of the body.

Possible Complications and Injuries

The most common complications from anesthesia are:

• post-operative pain
• nausea and vomiting
• delirium or temporary mental confusion
• tooth damage due to the placing of the breathing tube (intubation) during the operation
• sore throat and/or damage to the larynx
• serious allergic reaction from the anesthesia (known as anaphylaxis)
• respiratory difficulties
• pneumonia
• brain damage due to lack of oxygen
• stroke
• nerve injury
• blood clots
• heart attack
• death, and
• anesthesia awareness (meaning that the person regains consciousness during the operation).

As you can see, the list of major known complications from anesthesia is quite lengthy, and some risks are very serious. Luckily, while minor complications such as post-operative pain, nausea, and vomiting are not at all uncommon (as high as 40%), the most serious complications are relatively rare. For example, the risk of waking up during surgery is about 0.2%. That amounts to about two out of every thousand patients.

Major Errors in Administration of Anesthesia

The most common types of mistakes in administering anesthesia are:

• giving the wrong dosage of anesthesia, either too much or too little
• intubating the patient improperly (tooth damage due to the intubation is actually one of the most common malpractice claims against anesthesiologists)
• failing to monitor the patient properly
• failing to recognize complications as they are developing
• accidentally or intentionally turning off the alarm on the pulse oximeter, which measures the oxygen level in the patient's blood
• failing to monitor the delivery of oxygen to the patient
• failing to give the patient the proper instructions on how to prepare for surgery, such as not eating or drinking for a specified time before the surgery
• finally, while this is not an administration of anesthesia error per se, it can amount to medical negligence on the part of the anesthesiologist. During long surgery, the anesthesiologist is responsible for ensuring that the patient is moved periodically to avoid putting too much pressure on specific parts of the body. If the patient in the prone position is not moved periodically, the optic nerve can be injured, and blindness can result.

Proving an Anesthesiologist's Negligence

Medical malpractice can occur in many different ways, but the main cause of medical malpractice always boils down to medical negligence on the part of the defendant doctor or care provider.

In general, negligence means not exercising reasonable care, or doing something wrong. In medical malpractice cases, courts often define negligence as a health care provider's failure to exercise the degree of care and skill of the average health care provider who practices the provider's specialty, taking into account the advances in the profession and resources available to the provider.

In order to prove that an anesthesiologist was negligent, your lawyer will hire an expert medical witness, who will consider things like your pre-surgical risk factors for anesthesia and the surgeon's and anesthesiologist's operative notes, to try to figure out what happened during the surgery. Then, a very important consideration is the known complication rate of the type of anesthesia used during the surgery.

(For an overview on the legal issues you'd face bringing a medical malpractice claim, see Medical Malpractice: What You Need to Prove).

When is a Hospital Liable in a Lawsuit?

To make a medical malpractice claim, the first thing that you have to determine is whether the hospital, or anesthesiologist, is liable. The most common ways for a hospital to be held liable for anesthesia errors are the following:

• If the anesthesiologist is employed by the hospital, then the hospital will automatically be liable for any negligence committed by its employee. This is called vicarious liability.
• If the anesthesiologist is an independent contractor, the hospital may be held liable for negligently hiring and supervising the anesthesiologist.
• If the negligence occurred due to anesthesia equipment failure, the hospital may be independently negligent in maintaining and repairing its equipment.

Outside of these scenarios, the anesthesiologist would typically be responsible, and could be sued directly.

Liability When the Anesthesiologist is an Independent Contractor

A hospital is generally not legally liable for the negligence of physicians who participated in an operation at the hospital, but were not employees of the hospital. Physicians are considered to be independent contractors, and so, unless they are the hospital's employees, the hospital is usually not responsible for their negligence.

Determining whether an anesthesiologist is an employee or an independent contractor is a complex legal issue that involves looking at things like the employment contract between the doctor and the hospital, and how much control the hospital had over the doctor's job conditions and performance.

As a general rule, the more control an employer has over the performance of a physician who claims to be an independent contractor, the more likely it is that a court might find that the physician was actually an employee. If it's determined that the anesthesiologist acted independently of the hospital, the lawsuit would name him or her as the defendant. Because this is such a complex issue, you should contact a qualified medical malpractice lawyer in your state to get advice as to the law on this issue in your state.