MEDICAL LIABILITY AND HEALTH CARE LAW Litigation Clinical Basics and Current

By Walter J. Price III and Liability Issues Jennifer Devereaux Segers

The challenge faced It is notable that Oliver Wendell Holmes was the first, in by defense counsel is 1846, to use the term “anesthesia” to describe the state of grasping the multiple amnesia, analgesia, and narcosis, which made painless sur- elements involved in gery possible. Morgan & Mikhail’s Clinical 1 (5th ed. 2013). This description, by the thetic care of the obese, residual neuromus- anesthesia litigation, father of the American jurist Oliver Wen- cular blockade, and post-­anesthesia care. dell Holmes, Jr., describes the combination Historically, the first general anesthe- as well as being able to of conditions created by various medica- sia agents were inhalation agents or medi- tions and agents. The description by the cines in the form of gas or vapor that were apply this information father of a United States Supreme Court inhaled. Morgan & Mikhail’s Clinical Anes- justice is significant because commenta- thesiology 2 (5th ed. 2013). After centuries of to commonly tors have noted that all anesthesia practi- development, today sevoflurane is the most tioners will have patients who experience widely used inhalation agent in the United presented claims. unexpected and adverse outcomes, and States. Id. at 3. Ultimately, as anesthesia those providers, in some fashion, will likely medications continued to develop, intrave- be involved in medical malpractice litiga- nous anesthesia evolved, after the invention tion in one way or another. Id. at 1,200. And of the hypodermic syringe and needle. Id. at anesthesia-­related claims are quite costly. 4. Developed in 1962, ketamine is still used Kris Ferguson, et al., Anesthesia Related today. However, propofol, with its short du- Closed Claims and Litigations at the Detroit ration of action, is the most used anesthetic Medical Center: Analysis, Lessons Learned, agent for intravenous induction. Id. and Conclusions, Open Journal of Anesthe- To induce the condition described by siology, Vol. 4, 95 (2014). Most involve cer- Holmes, neuromuscular blocking agents tified registered (CRNA) are used, which relax muscles even without care. Id. at 91. Recently, these claims have deep anesthesia. Id. Oftentimes, these are involved allegations surrounding anes- referred to as paralytics. Interestingly, the

■ Walter J. Price III is a partner and Jennifer “JD” Devereaux Segers is of counsel with Huie Fernambucq & Stewart LLP in Birmingham, Alabama. The bulk of Mr. Price’s practice is devoted to the defense of hospi- tals and other healthcare providers in medical negligence cases. He is a member of DRI, the IADC, the Ala- bama Defense Lawyers Association, and the Professional Liability Defense Federation. Ms. Segers’ practice is dedicated to the areas of medical malpractice, dental malpractice, physical therapy malpractice, phar- macy malpractice, professional liability, and long-term care defense. She is a member of DRI, the IADC, and the Alabama Defense Lawyers Association.

64 ■ For The Defense ■ May 2017 © 2017 DRI. All rights reserved. development of modern neuromuscular oximetry may be caused by excessive am- progression, disappearance of the second blockades can be traced to curare, the par- bient light, patient motion, a badly posi- twitch indicates a 90 percent block. The alyzing poison used on arrows or blow gun tioned sensor, methylene blue dye, and low degree of relaxation required for surgery darts by South American indigenous peo- perfusion, among other causes. Id. at 125; is 75 percent to 95 percent; though, again, ple. Albert M. Betcher, M.D., The Civilizing Tomoki Nighiyama, Recent Advance in Pa- nerve stimulation is used to assess recovery of Curare: A History of Its Development and tient , Korean Journal of Anes- from the blockade since residual blockage Introduction into Anesthesiology, Anes- thesiology, Sept. 2010, at 153. Nonetheless, it may affect respiration and emergence from thesia and Analgesia, Vol. 56, No. 2, 305– is the usual means of assessing oxygen sat- anesthesia. Id. 319 (1977). Analgesia is generally obtained uration during and after anesthesia. Pulse through the use of opioids though concerns oximetry does not measure carbon dioxide about respiratory depression and overuse elimination and therefore the sufficiency of of these medications has led to efforts to ventilation. J.A.H. Davidson & H.E. Hosie, seek alternatives. Morgan & Mikhail’s Clin- Limitations of Pulse Oximetry: Respiratory Recently, these claims ical Anesthesiology 4 (5th ed. 2013). Insufficiency – a Failure of Detection,The BMJ, Aug. 7, 1993, at 372. have involved allegations Anesthesia Equipment Carbon dioxide levels are monitored Anesthesia involves various breathing cir- through the use of . This pro- surrounding anesthetic cuits that connect the patient either to a cess is used to determine the end tidal source of gas or the anesthesia machine. (occurring at the end of exhalation) Co2 care of the obese, residual Id. at 29. One, insufflation, involves blow- concentration. Such monitoring is suit- ing anesthetic gases across the patient’s able for all anesthetic procedures to con- neuromuscular blockade, face. During this process, the patient can- firm that a patient is adequately ventilated not rebreathe exhaled gases; however, the (the circulation and exchange of oxygen and post-anesthesia care. patient’s ventilation cannot be controlled. and carbon dioxide). Morgan & Mikhail’s Also, the inspired gas includes uncertain Clinical Anesthesiology 125 (5th ed. 2013). amounts of atmospheric air, making the Capnography is important in that it shows Anesthesia Agents mixture unpredictable. Id. at 30. changes in the elimination of carbon diox- Various inhalation agents are used in anes- Ambu bags or bag mask valves or units ide from the lungs. K. Bhavani-­Shankar, thesia. Id at 154. The degree of anesthesia, are commonly used for emergency venti- M.D., et al., Capnometry and Anesthesia, and the recovery from it, depends upon lation. Id. at 40. These devices are consid- Canadian Journal of Anesthesia 39:6, 618 the concentration of the anesthetic in the ered to be readily useable by non-­physician (1992). brain tissue. Id. at 159. Nitrous oxide was providers, including, for example, emer- The use of neuromuscular blockades an early inhalation agent, though it is still gency medical technicians. Id. Ambu bags requires monitoring to confirm the effec- frequently used in combination with other are portable and able to deliver almost 100 tiveness of, and subsequent recovery from, more potent agents. Id. at 163, 166. Such a percent oxygen. Id. neuromuscular blocking agents. Id. at combination is used to reduce the require- The anesthesia machine itself is used 138. This is generally performed through ments of the other agents. to control a patient’s ventilation and oxy- peripheral nerve stimulation. Id. A periph- Isoflurane, desflurane, and sevoflurane gen delivery. Id. at 44. Further, it is used to eral nerve stimulator delivers current to are the most common inhalation agents provide inhalation anesthetics. Id. These pads placed over a peripheral motor nerve, used in the United States. Sevoflurane is machines use carbon dioxide absorbers and as mentioned, it is used to assess neu- rapid acting and non-­pungent, and there- to remove carbon dioxide from the circu- romuscular function, including recovery fore, it is often used for rapid inhalation lar circuit system so as to prevent a patient due to concerns about residual neuromus- induction. Id. at 171. Rapid inhalation from rebreathing carbon dioxide. Id. Soda cular blockade. Id. at 139. induction, also known as rapid-­sequence lime is the most common carbon dioxide Train-of-four stimulation is a technique induction, is a process undertaken to absorber used, and the material changes used to assess the status of the blockade. induce quickly and to intubate while reduc- colors over the course of the procedure In this process, a current is delivered pro- ing the potential for aspiration. This pro- from white to purple, indicating a need to gressively to the nerves with the ratio of cess is used to lessen the potential for replace the material. Id. at 37–38. the muscular responses or twitches iden- aspiration, which may occur in situations During anesthesia administration, the tifying the extent of the blockade. For of a “full” stomach, intestinal obstruction, patient’s oxygen and carbon dioxide lev- example, visually observing the sequential hiatal hernia, obesity, pregnancy, reflux els are monitored. Pulse oximetry is used disappearance of twitches provides infor- disease, or emergency surgery. Id. at 278. to measure the patient’s oxygen saturation, mation regarding the extent of the block- Isoflurane is a potent anesthetic gas which generally involves a SpO2 of near ade. Id. Generally, disappearance of the used for induction and maintenance of 100 percent, with a level of 90 percent or fourth twitch represents a 75 percent block, general anesthesia. Id. at 169. It is noted lower representing hypoxemia. Id. at 124. It while disappearance of the third sequen- that patients with severe hypovolemia should be noted that inaccuracies in pulse tial twitch equals an 80 percent block. In (decreased blood volume) may not tolerate

For The Defense ■ May 2017 ■ 65 MEDICAL LIABILITY AND HEALTH CARE LAW isoflurane’s vasodilating effects.Id. at 169– tanil, which actually covers the full spec- such is associated with post-­procedure mor- 170. Desflurane, another anesthetic gas, is trum of intraoperative and post-­operative bidity. Id. at 224. Cholinesterase inhibitors similar to isoflurane, though its awakening analgesia, as well as maintenance infu- are used to reverse non-­depolarizing muscle time is significantly less than seen with iso- sion. Id. Opioids depress ventilation, and blockage. Id. These medications have poten- flurane.Id. at 170; Edmond I. Eger II, M.D., in particular, these medications depress the tial side effects, including depressed heart et al., The Effect of Anesthetic Duration on patient’s respiratory rate. Id. at 194. Mon- rate, bradyarrhythmias, bronchospasm, Kinetic and Recovery Characteristics of itoring is essential, and monitoring respi- and post-­operative nausea, and vomiting, Desflurane Versus Sevoflurane, and on the ratory rate is a “convenient, simple way of among others. Id. at 227. In fact, excessive Kinetic Characteristics of Compound A, in detecting early respiratory depression” in doses of cholinesterase inhibitors can ac- patients receiving these medications. Id. tually prolong recovery. Nonetheless, the Sufentanil has been shown to produce less side effects are generally minimized with depression of respiratory drive than fen- prior or simultaneous use of anticholiner- While each of the elements tanyl, yet sufentanil is stronger and lon- gic medications such as atropine sulfate or ger lasting. Peter L. Bailey, M.D., et al., glycopyrrolate. It is important that the an- of anesthesia is important, Differences in Magnitude and Duration of ticholinergic medication “match” the rever- Opioid-­Induced Respiratory Depression and sal drug. For example, glycopyrrolate is the presumably no patient Analgesia with Fentanyl and Sufentanil, An- recommended response to neostigmine. It is esthesia and Analgesia, Vol. 70, 12 (1990). also the appropriate response to pyridostig- would want to undergo As suggested above, neuromuscular mine. On the other hand, atropine should blocking drugs or agents are also a compo- be used in response to edrophonium, while surgery without analgesia. nent of anesthesia. Unfortunately for the pa- physostigmine usually does not require an tient, such medications do not ensure that anticholinergic medication. Id. at 229. he or she is unconscious, relieved of pain, or The anticholinergic medications are Volunteers, Anesthesia and Analgesia, Vol. will not remember the procedure. Morgan generally not without side-effects. Atro- 86, 420 (1997). & Mikhail’s Clinical Anesthesiology 200 (5th pine may cause tachycardia. Id. at 235. Various intravenous substances are ed. 2013). Nonetheless, there are two types Scopolamine may cause sedation or drows- used in anesthesia. For example, barbitu- of neuromuscular blocking agents, which iness, as well as amnesia. Id. at 236. On the rates provide a number of effects including are described based upon their manner of other hand, glycopyrrolate has few, if any, unconsciousness. Thiopental (also known action. One type is the depolarizing mus- side effects. as sodium pentothal) (used for induction), cle relaxant, which acts as an acetylcholine (used for induction and seda- receptor agonist. Id. at 203. While an ag- Adjunct Medications tion), and secobarbital (used for premed- onist binds with a receptor and activates Other medications are used as adjuncts ication) are commonly used. Morgan & the receptor to produce a response, an an- to anesthesia. Many of these are used to Mikhail’s Clinical Anesthesiology 178 (5th tagonist causes the opposite reaction. Non-­ address the potential side effects or com- ed. 2013). depolarizing muscle relaxants function as plications of anesthesia. For example, Benzodiazepines are generally used for competitive antagonists. Id. Depolarizing histamines are used to address allergic sedation, and less commonly, they are used muscle relaxants include succinylcholine, reactions, vertigo, nausea, and vomiting, for induction. Id. at 179. These include which actually is the only depolarizing among other conditions. These include diazepam (Valium), (Versed), muscle relaxant used in clinical practice at diphenhydramine (Benadryl), dimenhy- and lorazepam (Ativan). Id. at 180. Other this time. Id. at 204. It is, however, popu- drinate (Dramamine), chlorepheniramine intravenous anesthetics include ketamine, lar due to its very rapid onset of action and (Chlor-­Trimetone), promethazine (Phen- etomidate, and propofol. Id. at 183. As indi- short duration of action. Id. at 205–206. The ergan), and loratadine (Claritin), among cated above, propofol is short acting and other type is the non-­depolarizing muscle various others. Id. at 279. Some use these provides both sedation and amnesia. It is, relaxant, which includes atracurium, pan- medications due to their antiemetic and again, commonly used for induction. curonium, cisatracurium, vecuronium, and mild hypnotic effects.Id. at 280. While each of the elements of anesthesia rocuronium. Id. at 216–218. These medica- Recognizing that nausea and vomiting, is important, presumably no patient would tions vary by chemical structure, time of and associated aspiration, represent a po- want to undergo surgery without analgesia. metabolism, the route of excretion (kidneys tentially fatal complication, other adjunct Generally, opioids are used to reduce or to or liver), and the onset of the effect, as well medications are often used to minimize eliminate pain. Morphine, hydromorphome as the duration of the effect. Different dis- these potential side effects.Id. at 278. These (Dilaudid), and fentanyl are generally used eases may involve resistance or hypersensi- include, for example, antacids, which pre- for post-­operative pain and relief, though tivity to these neuromuscular agents, thus sumably reduce the harmful effects of as- fentanyl is also used intraoperatively. Id. at affecting the medication selected by the an- piration and aspiration pneumonia. Id. at 196. Sufentanil and alfentanil are used in- esthesia provider. Id. at 215. 282. Medications used include cimetidine traoperatively as well, though alfentanil is Reversal of neuromuscular blocking (Tagamet), ranitidine (Zantac), famotidine also used as a loading does as is remifen- agents is essential. The failure to accomplish (Pepcid), metoclopramide (Reglan), and

66 ■ For The Defense ■ May 2017 MEDICAL LIABILITY AND HEALTH CARE LAW others. Id. at 281. Similarly, proton pump cords and is located inferior to the division stances, including, for example, an unstable inhibitors are often administered. Id. at 283. between the trachea and esophagus. cervical spine or upper airway anomalies, Post-operative nausea and vomiting is The initial phase of and flexible fiber optic bronchoscopy can be a potentially serious complication, which includes review and classification of the used to assist in intubation. Id. at 324. The also occurs very frequently. Id. This con- oral opening. This involves application of fiber optic bronchoscope includes coated dition is also generally associated with the the Mallampati score. Id. at 313. While this glass fibers that convey images that allow length of the period of anesthesia. Id. Anes- score does not necessarily define whether the provider to visualize the larynx. thesia providers must assess the risk factors an intubation will be easy or difficult, it In cases in which intubation cannot associated with postoperative nausea and does provide useful data for an anesthesia be performed, surgical options are avail- provider for predicting the ease of intuba- able including a cricothyrotomy. Id. at 332. tion. Id. In general, the Mallampati clas- This involves an incision through the skin sification involves the examination of the and cricoid membrane allowing for intro- Recognizing that size of the tongue relative to the mouth duction of a breathing tube. Various fac- and oral cavity. Id. There are four classi- tors may make intubation more difficult, nausea and vomiting, and fications, with the difficulty increasing including, as noted above, obesity, as well based upon the greater difficulty in view- as anatomic variations, the presence of associated aspiration, ing the pharyngeal structures. Id. The abil- tumors or foreign bodies, or trauma such ity to access these structures, and generally as a laryngeal fracture, inhalation burn, or represent a potentially fatal intubate the patient, may be complicated in cervical spine injury. Id. at 336. morbidly obese patients, who often exhibit In any case, intubation is not without the complication, other adjunct redundant pharyngeal tissue and larger potential for complications, some of which neck circumferences. Id. at 314. Not only include inadvertently malpositioning the medications are often may this make it more difficult to intubate endotracheal tube, airway trauma, or some the patient, it may also affect the provider’s troublesome physiological responses such used to minimize these ability to ventilate with a bag and mask. Id. as hypoxia, hypercarbia, hypertension, or Patients lose upper airway muscle tone tachycardia. Id. at 334. Complications asso- potential side effects. when anesthetized and often during emer- ciated with the actual placement of the tube gence. This means that there are various also include esophageal intubation, which is interventions that may be undertaken to quite dangerous, as well as an endotracheal vomiting as well as potential steps taken to respond when the tongue and epiglottis tube placed too distally in the trachea, re- reduce that risk. Id. at 283–284. come in contact with the posterior wall of sulting in intubation to the right main stem Another important medication used in the pharynx. These include a jaw thrust bronchi. Id. at 335. To assess placement, the anesthesia context is naloxone (Nar- and chin lift and use of an artificial airway. the provider should perform chest auscul- can). Id. at 289. This medication reverses Id. Beyond these measures, the next, more tation and undertake capnography. Id. Not the unconsciousness associated with opi- involved steps would be bag and mask ven- unexpectedly, under “light” anesthesia, the oid use and overdose, and it is important tilation, and potentially intubation. patient may respond to intubation with hy- in trying to reverse the respiratory depres- Various devices are used to maintain an pertension and tachycardia. sant effects of opioid use in the anesthesia airway and assist in providing anesthesia setting. Id. at 289. In addition, flumazenil care. These include supraglottic airway de- Preoperative Assessment (Romazicon) is useful in reversal of ben- vices, the , as well as An important component of anesthesia care zodiazepine sedation. Id. at 290. A work- an esophageal-­tracheal Combitube. Id. at is the preoperative assessment. In addition ing knowledge of these various products is 317–20; Carin Hagberg, M.D., Handbook to airway assessment, as stated earlier, the vital in understanding the use, and misuse, of Difficult Airway Management, 171–81 anesthesia provider, at that time, must eval- of these drugs as they are used in conjunc- (2000). Generally, most consider endotra- uate cardiovascular, pulmonary, endocrine, tion with anesthesia care. cheal intubation as the expected means of coagulation, and gastrointestinal issues. Id. maintaining the airway during anesthesia; at 297–99. The preoperative physical exami- Airway Management however, the choice to intubate largely de- nation includes assessing the patient’s vital A vital component of anesthesia care is pends upon the nature of the involved pro- signs (heart rate, blood pressure, respiratory management of the patient’s airway. Of cedure. The tracheal tube includes a cuff, rate, and temperature), as well as examining course, there are two openings to the air- which allows for a seal of the trachea, per- the airway, heart, lungs, and musculoskel- way. The nose leads to the nasopharynx, mitting positive pressure ventilation and etal system using inspection, auscultation, while the mouth leads to the oropharynx. reducing the likelihood of aspiration. Mor- palpation, and percussion. Id. 299–300. Id. at 310. The epiglottis prevents aspira- gan & Mikhail’s Clinical Anesthesiology 321 The anesthesia provider will also examine tion by covering the glottis, which is the (5th ed. 2013). A laryngoscope is used to ex- the patient’s airway dentition. Id. at 300. Of opening created in the larynx during swal- amine the involved structures and facilitate course, the preoperative assessment must lowing. Id. The larynx houses the vocal intubation. Id. at 322. In certain circum- be documented in the medical chart. Af-

68 ■ For The Defense ■ May 2017 ter this assessment, an anesthetic plan will Generally, the anesthesia provider has re- into one of three categories: failure to mon- be finalized and then undertaken, which sponsibility for the care of the patient until itor, failure to document, or failure to make will consider whether sedative-­hypnotic the patient has recovered from the effects of the correct medical decision. Monitoring premedication will be useful, the types of anesthesia. Thus, he or she should remain claims involve the assessment, the appro- anesthesia to be employed, any special in- in the post-­anesthesia care unit (PACU) un- priate interpretation of signs and symptoms, traoperative management issues, and the pa- til the patient has normal vital signs and is and the associated failure to respond or take tient’s postoperative management. Id. at 296. deemed to be in stable condition. One of the action. Documentation claims can involve more common issues faced by both patient both the failure to review existing docu- Intraoperative and Post- and provider is delayed emergence. This mentation and the failure to document the Operative Documentation may be the result of residual anesthetic, Intraoperative documentation on the anes- sedative, or the effects of analgesic drugs. thesia record is vital. Generally, various el- Morgan & Mikhail’s Clinical Anesthesiol- ements of the anesthesia care provided to ogy 1260 (5th ed. 2013). In most cases, the No matter the aspect of the patient are included, beginning with patient is transferred from the operating documentation of a preoperative check of room to the PACU. This usually brief jour- anesthesia care at issue, the the anesthesia machine and other involved ney includes potential hazards since moni- equipment. Id. at 304. In addition, the pro- toring equipment is not available during the nature of the alleged failure vider should note whether there has been a course of transfer. There also may be lim- reevaluation of the patient before introduc- ited access to medications and resuscitative to provide good anesthesia ing anesthesia. Id. As one would expect, the equipment. Id. at 1261. In any event, the pa- record should include reference to the drugs tient should not leave the OR until he or she care generally falls into one given intraoperatively, including the time of has a patent airway, adequate ventilation is administration, dosage, and route. Id. The noted, and the patient is hemodynamically of three categories: failure to anesthesia provider also should note esti- stable. Id. During transfer and while in the mated blood loss and urinary output. Id. If PACU, the bed or stretcher should generally monitor, failure to document, laboratory tests are obtained during the pro- be capable of being placed in a head-down cedure, the anesthesia provider should in- (Trendelenburg) or in a back-up position. or failure to make the clude the results of those tests. Id. Similarly, Id. Upon arrival in the PACU, involved per- the documentation should reflect intrave- sonnel should assess airway patency, vital correct medical decision. nous fluids and any blood products that were signs, oxygenation, and level of conscious- provided during the procedure. Unusual or ness. Id. Customarily, in the PACU, blood specialized intraoperative techniques should pressure, heart rate, and respiratory rate patient’s status and response to various in- be noted, as well as any unexpected events or are assessed every five minutes until the pa- terventions. Decision-­making claims may complications. The time of key events such tient is identified as stable, followed by as- involve the failure to follow hospital proto- as induction, positioning, surgical incision, sessment every 15 minutes. Pulse oximetry col, or in the case of a nurse anesthetist or and extubation should be included, as well is continuously monitored. Id. nurse, the failure to follow physician orders as the condition of the patient at the time of Additional efforts in the post-­anesthesia or to timely call the physician. These claims transfer to post-­anesthesia or intensive care care unit include assessment of neuro- may also involve allegations that the pro- unit nurse providers. Id. These components muscular function through, for example, vider made the wrong decision by, for ex- should be considered in a review of the anes- requesting that the patient lift his or her ample, providing the wrong medication, thesia record. If an adverse event occurs, an head and by evaluating the patient’s grip administering an incorrect or inappropri- analysis of the exact timeline of events may strength. Id. Pain, the presence or absence ate agent, or failing to intervene when the be vital to the defense of the claims. of nausea and vomiting, and fluid input patient’s condition changes. Regarding the patient’s disposition, the and output should be noted, as well as any Recently, three categories of claims have Centers for Medicare and Medicaid Serv- drainage or bleeding. Pain may manifest become more common, and each may ices require that specific information be itself as patient restlessness. In addition, involve the above-described acts or omis- included in the anesthesiologist’s postoper- nausea and vomiting occurs in 30 percent sions. First, anesthesia-­related litigation ative notes. These elements include the pa- to 40 percent of post-­anesthesia patients. involving obese patients has grown sub- tient’s respiratory function (respiratory rate, Id. at 1263. Supplemental oxygen is also stantially. One may consider that this is a airway patency, and oxygen saturation), car- provided to patients in the PACU, generally function of the prevalence of obesity at this diovascular function (pulse rate and blood as a matter of course. Id. at 1262. time; however, there are also inherent diffi- pressure), mental status, temperature, pain, culties associated with anesthetizing obese nausea and vomiting, and postoperative hy- Claims Against Anesthesia Providers patients that can lead to adverse outcomes dration. Id. at 305; Centers for Medicare and No matter the aspect of anesthesia care at is- and subsequent litigation. As explained Medicaid Services, Revised Anesthesia Serv- sue, the nature of the alleged failure to pro- elsewhere, “despite strict adherence to ices Interpretive Guidelines (Dec. 2009). vide good anesthesia care generally falls practicing the best standard of patient

For The Defense ■ May 2017 ■ 69 MEDICAL LIABILITY AND HEALTH CARE LAW care, this anesthesia-­related adverse event will routinely make adjustments to the tients, for example, by altering uses of par- can result in medico-legal claims.” Fergu- anesthesia plan to address this increased ticular beds and designing newer beds with son, supra, at 89. Secondly, another cate- risk, which will likely include modifica- higher weight limits. Manufacturers of the gory of current claims involves occurrence tions to the choice of anesthesia, the posi- devices used by anesthesia providers in in- of respiratory insufficiency associated with tioning of the patient, the management tubation are developing instruments that in- alleged failure to reverse the neuromus- of the airway, and the monitoring of the crease visibility for the providers when they cular blockade that was used adequately. patient intraoperatively. Anesthesia provid- are presented with airways that are more Finally, PACU-related claims are common, ers will also likely increase post-­operative difficult to manage due to the increase in too. Of course, there may be an overlap of monitoring and provide additional dis- the physical size of the patient population. the issues that are shared among each of charge instructions that take into account Furthermore, the size of a patient will these types of claims. the patient’s OSA. For example, anesthesia more than likely have an effect on intra- providers may require a patient who oth- operative positioning by both surgeon and Obesity and Anesthesia erwise could be released and sent home anesthesia provider. Depending upon the Statistics show that clinically severe obe- after a procedure that involved anesthesia degree of obesity, an air-transfer mattress sity in the American population is increas- to be admitted to the hospital for continu- device may be required to move an obese ing at an alarming rate. With severe obesity ous monitoring in case any post-­anesthesia patient from stretcher to operating table to comes a marked increase in the number complications surface. American Society of prevent possible injury to both patient and and degree of comorbidities experienced by Anesthesiologists, Practice Guidelines for staff. Roberta L. Hines, Robert K. Stoelting this growing class of patients. More specif- the Perioperative Management of Patients & Katherine E. Marschall, Stoetling’s Anes- ically, in 2003, one out of four adult Amer- with obstructive Sleep Apnea, 120 Anesthe- thesia and Co-­Existing Disease (Anesthesia icans would be considered obese, based siology 1–19, 6–7 (2014). and Co-­Existing Disease), 16:326 (6th ed. upon their self-reported weight, and one Furthermore, the higher number of pa- 2012). There is also a higher rate of pressure in three adult Americans would be consid- tients who are morbidly obese has made sores and nerve injuries to obese patients, ered obese, based upon objectively mea- the delivery of anesthesia to patients more especially those with diabetes; therefore, sured weight. R. Sturm, Increases in Morbid difficult because the increase in body mass additional care may be required to protect a Obesity in the USA: 2000-2005, 121 Pub- has such a significant effect on how the patient’s pressure areas and to try and pre- lic Health 492–96, 493 (2007). These rates body responds to the anesthetic agents as vent an injury to the brachial plexus, the have tripled in the past 20 years. Id. Inter- well as how anesthesia is delivered. For ex- sciatic, or the ulnar nerves. Id. estingly, the increase in bariatric surgery ample, it is more difficult to mask a patient Because intubation in obese patients is to address weight and weight control has for the delivery of anesthesia because the more challenging, “proper patient posi- seemingly had no effect on these rates of larger facial size and jaw line of obese pa- tioning is essential to successful intubation obesity in this country. Id. at 492. tient prevents the anesthesia provider from of the trachea.” Id. at 327. The effect that a Statistics show that the increased rate in obtaining a good seal with the anesthe- dramatic increase in physical body weight obesity has brought with it a correspond- sia mask. These patients have an increased has on the tissues and structure of the neck ing rise in the diagnosis of comorbidities, Mallampati score, the tool that anesthesia can have a significant effect on an anesthe- including hypertension, COPD, diabetes, providers use for pre-­operative assessment sia provider’s ability to visualize and maneu- and sleep apnea. The increased rate of OSA as described above. This creates certain ver the airway so that a successful intubation (obstructive sleep apnea) in obese patients challenges for intubation. Obese patients can be achieved. Thus, the provider may can have a very significant effect on patient have less pulmonary reserve so they desat- need to use additional pillows or support- success with anesthesia. Of course, it is urate more quickly, leading to increased risk ive devices to assist with positioning for common for a patient who has sleep apnea of hypoxemia. Emergence from anesthesia intubation. Id. Again, various methods of to have had the physician prescribe the is also more challenging because there is a positioning have been used to address the use of a CPAP (continuous positive airway direct correlation between the body mass correlation between obesity and decreased pressure) machine to keep the patient’s and the dosage amount of the drugs given. pulmonary reserve. The traditional Tren- tongue and pharynx from closing off the Not only does the obesity issue have a delenburg position, which involves placing airway while the patient is lying down direct effect on the amount of anesthesia the body flat on the back with the feet higher asleep at night. Unfortunately, approxi- medications used, but it also has a direct ef- than the head by 15–30 degrees, is routinely mately half of the patient population that fect on the positioning of the patient during changed to reverse Trendelenburg, where have been prescribed a CPAP machine the particular procedure. Anesthesia beds the body is tilted in the opposite direction, for sleep apnea in reality stop using it as are quite narrow and have weight limita- which results in a higher respiratory com- instructed. Attitude and Expectations, the tions defined by the manufacturers. As pa- pliance and improved oxygenation. Jahan American Sleep Apnea Association, avail- tients get heavier, the beds become less able Porhomayon et al., Alteration in Respira- able at https://sleepapnea.org/. to safely bear the weight of obese patients. tory Physiology in Obesity for Anesthesia-­ Thus, anesthesia providers who are eval- Thus, the actual positioning of the patient Critical Care Physician, 3 HSR Proceedings uating obese patients, and particularly becomes more difficult. Manufacturers have in Intensive Care and Cardiovascular Anes- those with OSA requiring use of a CPAP, had to address the growing size of the pa- thesia 109–118, 111 (2011).

70 ■ For The Defense ■ May 2017 It is important to keep in mind that obe- independently may not confirm control of cations varies though it has been reported sity carries so many increased risks when the airway. T. Fuch-Buder, et al., Monitoring at 23.7 percent and 33 percent. Roberta it comes to delivering anesthesia safely and Neuromuscular Block: An Update, Anaesthe- Hines, M.D., et al., Complications Occur- effectively that these patients are already sia, Vol. 64, 84 (2009). ring in the Post Anesthesia Care Unit: A Sur- at a much higher risk of experiencing an Steps available to reduce the potential vey, Anesthesia & Analgesia, Vol. 74, 503 adverse event during anesthesia, even in for the residual effects of neuromuscu- (2008); D. Keith Rose, M.D., Recovery Room face of reasonable and prudent anesthesia lar blockade include using as little of the Problems or Problems in the PACU, Cana- care. Thus, when defending these cases, it is blockade during surgery as possible, early dian Journal of Anesthesia, Vol. 43, 117 important to confirm that steps were taken reversal of the blockade, and appropriate (1996). The most common issues include by the anesthesia provider to minimize monitoring. Murphy, supra, at 136. Assess- hypertension, hypotension, bradycardia, these risks to the extent possible. ment may include clinical tests such as a drowsiness, confusion, or agitation, shiv- head lift, though, as noted, such may not ering, excessive pain, desaturation, and Residual Neuromuscular Blockade assess full recovery of the pharyngeal mus- nausea and vomiting. Id. Hypertension is Plaintiffs’ attorneys often attempt to link cles. Bertrand Debaene, M.D., et al., Resid- a common post-­anesthesia complication. PACU respiratory events with residual neu- ual Paralysis in the PACU After a Single It has been linked with various potential romuscular blockade. This is not unexpected Intubating Dose of Non-­depolarizing Mus- factors, including pain, emergence excite- as the residual effects of those blockades have cle Relaxant with an Intermediate Dura- ment, reaction to the endotracheal tube, been associated with significant morbidity. F. tion of Action, Anesthesiology, May 2003, excess fluid administration, hypother- Donati and D. Bevan, Neuromuscular Block- at 1047. An objective means of assess- mia, hypoxia, and the patient’s historical ing Agents, Clinical Anesthesia (P. G. Brash, ment such as acceleromyography may be hypertension. Thomas J. Gal and Lee H. et al. eds., 6th ed. 2009). Indeed, it has been superior to clinical tests and train-of-four Cooperman, Hypertension in the Imme- reported that 33–64 percent of patients ar- assessment. Murphy, supra, at 134. diate Postoperative Period, British Journal riving in the PACU have signs of inadequate From the litigation perspective, various of Anesthesia, Vol. 47 (1975). As such, the neuromuscular recovery. Glenn S. Murphy, issues should be considered in defense of general approach to such hypertension is to M.D., et al., Residual Neuromuscular Block- such claims. First, were steps such as those treat the underlying factors. Id. at 73. ade and Critical Respiratory Events in the Post described above taken to reduce the po- Various causes of these findings may Anesthesia Care Unit, Anesthesia & Analge- tential for complications associated with be associated with an airway obstruction. sia, Vol. 107, No. 1, 130 (2008). Various fac- residual neuromuscular blockade? From a This condition often presents with labored tors may contribute to resulting respiratory broader standpoint, one should also con- breathing, chest wall retraction, nasal flar- distress, including, for example, the patient’s sider what can be ruled in, and out, as po- ing, and associated “snoring” or “grunting” age, gender, and medical history, specifically tential causes for complications such as noises, as well as paradoxical movement of regarding the presence of chronic obstruc- respiratory distress, including, for exam- the chest wall. John L. Atlee, Complications tive pulmonary disease, diabetes, and obe- ple, involved anesthetic agents and drugs, as in Anesthesia 877 (2nd ed. 2007). For liability sity. Id. at 134. Surgical factors include the well as the patient’s specific comorbidities. purposes, in the face of an airway obstruc- location of the procedure (abdominal or or- Analysis of the blockade used, the reversal tion, the first response is usually a head tilt thopedic surgery), whether the procedure is agent, if any, administered, the type and and jaw thrust, potentially followed by an emergency in nature, and perhaps most im- length of the procedure, and neuromuscu- oral airway, bag and mask, and even reintu- portant, the length of the surgical procedure. lar assessment must be reviewed. Regarding bation. Id. The obstruction may be the result Id. The agents and medications used during the assessment, the presence of documented of a laryngospasm, airway edema, wound the procedure may also play a role. train-of-four or similar detection and quan- hematoma, or again, residual neuromus- Aside from the obvious potential respira- tification of neuromuscular blockade may cular blockade. Hagberg, supra, at 382–83. tory effect of inadequate diaphragm recovery, support the defense position that placing Post-extubation pulmonary edema may residual paralysis from the blockade presents blame on residual neuromuscular blockade be a serious complication. It is often seen in other risks. For example, it increases the risk is nothing more than speculation. the PACU because it has been reported that of passive regurgitation of gastric contents. Returning to the general types of while the symptoms may appear in min- A. Srivastava and J.M. Hunter, Reversal of anesthesia-­related claims, the failure to utes, on occasion they may develop later. It Neuromuscular block, British Journal of An- monitor the blockade status may well serve frequently is secondary to a laryngospasm. aesthesia, May 2009, at 117. Specific potential as a claim, as would the failure to docu- Z. Mulkey, et al., Postextubation Pulmo- complications include atelectasis and pneu- ment. Of course, to the extent that any of nary Edema: A Case Series and Review, monia. Id. Airway obstruction, one of the the involved medications were physician Respiratory Medicine, Vol. 102, 660 (2008); more common and dangerous post-­surgical ordered, a nurse anesthetist may face lia- Philip N. Cascade, M.D., Negative Pressure complications, is also a possibility. Murphy, bility for failure to follow those orders. Pulmonary Edema After Endotracheal Intu- supra, at 135. An important aspect of this bation, Radiology, Mar. 1993, at 674. Oddly, concern is evidence that the diaphragm re- Complications in the Post- this occurrence often occurs in young, covers more quickly than pharyngeal muscle Anesthesia Care Unit healthy adults, presumably because their function, meaning that the ability to breathe The rate of post anesthesia care unit compli- Anesthesia, continued on page 92

For The Defense ■ May 2017 ■ 71 Anesthesia, from page 71 provided if the hypercarbia is the result of condition and musculature allows for gen- the effects of opioids, though, as described eration of excessive negative intrathoracic above, residual neuromuscular block may pressure. James R. Holmes, M.D., et al., be the cause as described previously. Id. Postoperative Pulmonary Edema in Young, at 880. Even shivering presents a real haz- Athletic Adults, The American Journal of ard associated with excess carbon dioxide. Sports Medicine, Vol. 19, No. 4, 365 (1991). This seemingly benign annoyance calls for Other PACU complications involve de- a response. layed emergence and hemodynamic insta- bility. Atlee, supra, at 885, 899. There is no Conclusion way to predict the former, which is treated As with most medical liability claims, the with reversal agents. Id. at 885–86. Treat- first challenge faced by defense counsel ment of hemodynamic instability involves is grasping the involved medicine. Given identifying the potential causes with cause-­ the multiple elements included, anesthesia specific treatment.Id. at 900. claims are demanding and require funda- Again, the general elements of PACU lit- mental understanding of these components. igation may be present, including whether Likewise, it is important to be able to apply the patient was appropriately monitored and this information to the claims now com- whether the physician was timely contacted monly presented. Also, given the contin- in the event of a complication. Documen- ued surge in obesity, as well as the focus on tation is vital since a number of elements reducing recovery and hospital admission are to be checked with most assessments times, claims involving obese patients and taking place on a periodic basis. These in- recovery-­related issues will likely continue. clude, for example, airway patency, respi- ratory rate, oxygen saturation, pulse, blood pressure, neuromuscular function, mental status, temperature, pain, nausea and vom- iting, hydration, input and output, as well as drainage and bleeding. Practice Guidelines for Post Anesthetic Care: An Updated Report by the American Society of Anesthesiologists Task Force on Post Anesthetic Care, Anesthe- siology, 7 (Feb. 2013). PACU care claims may also involve questions about whether the appropriate clinical response was undertaken. As noted above, there are classically accepted ini- tial responses to postoperative respiratory insufficiency or airway obstruction, includ- ing the head tilt, jaw thrust, and placement of an oral airway, followed by more invasive techniques. Management of other condi- tions must be addressed also. For example, the primary response to hypoxemia is eval- uation and establishment of the airway, fol- lowed by condition-specific­ interventions. For example, oxygen and diuretics would likely be provided if the hypoxemia results from pulmonary edema. Atlee, supra, at 879; Z. Mulkey, et al., Postextubation Pul- monary Edema: A Case Series and Review, Respiratory Medicine, Vol. 102, 1,662 (2008). Likewise, hypercarbia, or excess carbon dioxide, is often first addressed by asking the patient to breathe more deeply. Atlee, supra, at 879. Titrated Narcan may be

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