Malpractice litigation is a fact of life for most anesthesiologists today. The average anesthesiologist has a 7 percent chance of being sued each year. Some large groups, however, consistently defy the odds by remaining almost claims free year after year. This track record can occur in spite of a group’s location in a litigious state with an unfavorable legal climate.
The material for this article comes from interviews conducted by our risk management experts, who asked members of two low-risk anesthesia groups to talk about what makes their groups successful and what helps them to prevent malpractice claims.
Whenever possible, the physicians perform their own preoperative assessments. They have found that this avoids the potential for important information not being transmitted to another provider and also helps establish a physician-patient relationship before entering the operating room. Outpatients are telephoned at home the night prior to surgery, which helps to build rapport, communicate information about oral medication and NPO status, and identify potential problems in advance. Inpatients are seen in-house the night before surgery.
When the patient first registers at the hospital, an outpatient surgery nurse obtains a thorough history. The anesthesiologist can then review this assessment with the patient, along with the surgeon’s history and physical, laboratory work, and old medical records, which have all been placed with the chart. Anesthesiologists are encouraged to review the nurse’s notes thoroughly, as they often contain valuable information that the patient did not communicate to the physician, such as extreme anxiety about the procedure. One suggestion is to ask the patient very specific questions. For example, inquire directly about any problems with nausea, vomiting, pain, or postspinal headaches rather than asking “Did you have any problems with anesthesia before?”
Patients are also routinely seen or called postoperatively. Such personal interaction projects concern for the patient and provides the physician with firsthand insight into potential problems or complaints that the patient might have regarding the anesthetic. Patients who have been given a chance to ventilate their concerns are also less likely to take their grievances to another level. It would be a good habit to ask postanesthetic patients, “Is there anything we could have done to make your anesthetic care better for you?” This type of open-ended question gives individual patients permission to comment on processes or experiences that might guide future practices.
Both groups have excellent working relationships with the nursing staff in the pre-op, OR, and recovery areas. They feel that the nurses are caring and competent and will notify the physicians whenever the circumstances call for it. The physicians strongly encourage the nurses to call them or another partner whenever they are concerned about a patient. The anesthesiologists provide education to the recovery room nurses on a regular basis on subjects such as new anesthetic techniques.
One group provides a daily “free physician,” who carries a cell phone and pager and is available to respond within a few minutes. This physician is responsible for the recovery room, where events can precipitate rapidly, and also provides backup or assistance to any area of the hospital. When a problem arises in the OR, not only does the free physician respond, but any available member of the group is also expected to arrive at the scene to see if help is needed. As many as six anesthesiologists might work on a single emergency. As the group leader states, “We simply manpower problems to death.”
The anesthesiologists feel that it is essential to be comfortable in their interactions with other physicians. Professional disagreements regarding patient care are unavoidable, but group members make an effort to keep the focus on patient safety, to stay calm and professional, and to avoid having winners and losers in interactions with surgeons. Anesthesiologists are encouraged to participate in hospital committees and to attend all group meetings. As one anesthesiologist put it, “Be accountable to your practice with a focus that your provision of services impacts everyone in the group, not just you.”
All group members are either partners or on a partnership track. The ownership component helps to ensure that physicians feel responsible for how the group is perceived and how their individual performance affects that perception. One group tried employing other physicians on a locum tenens basis but found that those physicians, although competent, were more focused on their individual day-to-day events, rather than on the overall picture and that they were less likely to go the extra mile or do extra work when needed. Group members readily support each other for bathroom and lunch breaks and work together to cover late cases if someone has to leave. Issues that arise regarding compensation inequities are promptly discussed by the entire group so that all members feel fairly treated and part of the team.
Both groups allow members to specialize in areas like obstetrics, cardiac, or neurosurgical anesthesia. They feel that this allows for development of a strong skill set and enhances rapport with a small group of surgeons. They also feel that it enhances accountability for ensuring the smooth functioning of their particular “units.”
New members are selected based on their extensive experience and expertise. Both groups have rigorous selection procedures in place. Each applicant must have a good record, and the groups obtain extensive references—not only standard peer references but also recommendations from nurses and surgeons the applicant worked with previously. Even with such high scrutiny, one of the groups still regards new anesthesiologists as being on probation for one year, during which time the new anesthesiologist is repeatedly reviewed. After one year, the new anesthesiologist is reevaluated and, if all group members agree, he or she moves into a partial partnership slot and is observed for another year.
All physicians in the group take part in formal quality improvement committee activities, which keep them up to date on current issues. With all physicians participating in medical records reviews, they are more aware of the importance of good documentation. The spirit is one of helping each other to look at things from a different perspective. They all accept and understand this process so that it doesn’t degenerate into one-upmanship. All anesthesiologists are encouraged to proactively develop new methods to ensure safe patient care and avoid complications.
Group members also participate in hospital or surgery center committees. This keeps them informed on new developments and enhances rapport with other physicians. The groups commented on the excellence of the credentialing process for the other hospital physicians. As a result, they feel confident that the surgeons and ob/gyns they work with have also been carefully selected. Anesthesia equipment is described as state of the art in every anesthetizing location, and routine maintenance is continually ensured.
Both groups emphasize the importance of the informed consent process. One group uses written consents for the anesthetic and for any anticipated invasive procedures, with copies going to the patient. Patients are thoroughly educated regarding the planned anesthetic and the available alternatives. Common side effects and complications are discussed with patients. These groups describe themselves as “careful” and “selective” regarding the patients taken to surgery, meaning that they are not reluctant to cancel or postpone cases when appropriate.
Some negative outcomes are unavoidable, but these groups have found that immediate interaction with the patient or family after an event is invaluable in avoiding claims. For example, with known dental injuries, they don’t wait for patients to complain; they approach them immediately. Without promising any payment or reimbursement, the anesthesiologists tell patients that they are more than willing to work with them to resolve the problem. For small repairs, the anesthesiologists may simply pay for it themselves. More extensive complications should be reported to The Doctors Company as a potential claim. Our claims representatives can help guide you. For other bad outcomes, the group always follows up with the patient or family as soon as possible and keeps the lines of communication open.
All suspected errors go through a formal peer review process. Equipment suspected of malfunctioning is removed from service and isolated until inspected thoroughly. Supplies involved in the untoward outcome, such as broken needles, are gathered and submitted to hospital peer review agents.
Interestingly, both groups have members who perform expert witness services for malpractice litigation. When a case is resolved or settled, the case study is used as a lesson for the entire group so they can avoid making the same mistakes in their own institutions.
Care should be taken to avoid immediately discussing potential errors with other physicians or nurses outside of the hospital’s peer review process. Conversations outside of the peer review or quality improvement processes may be especially vulnerable to legal discovery. Some states provide protections for physicians who wish to apologize to patients by having laws in place that prevent the use of apology statements during any subsequent litigation. General statements, such as “I am sorry you suffered this complication,” are safer than statements speculating on causation of the untoward outcome.
While not all of these suggestions are appropriate or feasible for every anesthesia group or provider, we offer them here as food for thought. These groups are clearly doing something right—and nothing succeeds like success.
Many of the ideas presented here can also be applied to other medical specialties. The examples of open communication within the group and between coworkers and other physicians are useful guides for successful practices and decreased litigation.
Ann S. Lofsky, MD, Governor Emeritus (deceased), and Susan K. Palmer, MD, The Doctors Company Anesthesia Advisory Board Member.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.