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.
There are three main types of anesthesia:
The most common complications from anesthesia are:
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.
The most common types of mistakes in administering anesthesia are:
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).
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:
Outside of these scenarios, the anesthesiologist would typically be responsible, and could be sued directly.
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.