Author: Michael Vlessides
The specter of potential litigation in health care is always present. Now, new research has shed light on the nature of litigation involving endotracheal intubation.
The analysis of more than 200 cases concludes that although anesthesiologists are the most likely targets in such cases, taking the time to enter into clear communication with patients before the procedure may go a long way toward mitigating the results of the litigation or avoiding it altogether.
“We anesthesiologists usually share the patient’s airway with several other specialists, including ENT [ear, nose and throat] surgeons and emergency medicine,” said senior author Jean Daniel Eloy, MD, the vice chair of anesthesiology at Rutgers New Jersey Medical School, in Newark. “Yet it’s unclear how we share litigation in these cases.”
As Dr. Eloy explained, performing a medicolegal examination of an intervention as common as endotracheal intubation may prove valuable to physicians in many specialties. He and his colleagues sought to detail the various factors that are raised in litigation, an effort they said may ultimately educate anesthesiologists on strategies for minimizing liability and augmenting patient safety.
The investigators searched publicly available court records using the keywords “medical malpractice” and “intubation.” The search identified 460 reports with either jury verdicts or settlements. A total of 246 cases were excluded: 145 in which intubation was not one of the reasons for the malpractice litigation, 83 in which litigation was initiated due to a failure to intubate rather than adverse sequelae from intubation itself, and 18 duplicate cases. The remaining 214 reports were analyzed.
As Dr. Eloy reported at the 2019 annual meeting of the International Anesthesia Research Society (abstract D7), 66 of the 214 cases (31%) ended in a settlement. Of cases going to trial, 92 (43%) were resolved in the defendant’s favor and 56 (26%) were resolved for the plaintiff. Other findings included the following:
Perhaps not surprising given the nature of the injuries, the most frequent physician defendants were anesthesiologists (59.8%), followed by emergency medicine physicians (19.2%). Other specialties were represented and included surgeons, obstetrician/gynecologists, pulmonologists, ICU physicians, ENT specialists, pediatricians, family practitioners and cardiologists. The most common setting of injury was the OR (45.3%).
The most common factors associated with plaintiff decisions and settlements included patients sustaining permanent deficits (89.2%), death (50.5%), and anoxic brain injury (37.4%). The presence of anoxic brain injury increased the likelihood of a case being resolved with a monetary award. Injuries occurring in labor and delivery units largely involved newborn infants, and had the highest awards at nearly $5 million. Injuries sustained in the PACU were financially well above the average, with awards exceeding $4.5 million.
As Dr. Eloy explained during an interview with Anesthesiology News, the next step for anesthesiologists is to try to protect themselves from these often traumatic events.
“That doesn’t necessarily mean we’re going to be successful,” he said. “There are injuries that occur, and we can’t stop litigation from happening. So, the best thing we can do is look at it and see what can we actually learn from these cases. I don’t know if it’s going to affect the way we manage things, but at least we have the knowledge and data to look at it that way.”
Informed Consent Can Modify Case Outcomes
Of note, the study found that deficits in informed consent were noted in numerous cases. This finding, the investigators said, shows the importance of a clear process that has physicians explaining the specific risks and benefits of intubation, and its alternatives.
“I think one of the important things is that as health care providers, we discuss potential risks with our patients,” said study co-investigator Andrea Perales, MD, a resident at Rutgers New Jersey Medical School. “That includes making sure that our patients are aware that intubation is not necessarily straightforward. There are risks involved, and being able to discuss that with our patients is very important.”
However, circumstances sometimes preclude such conversations. “Unfortunately,” Dr. Eloy said, “there are often situations where there’s no time to have these discussions with patients. You come into a situation that is already past that point and you simply need to move forward. I don’t think most anesthesiologists realize the degree to which we get sued. One of the things we do on a regular basis is intubation, but the complications associated with that and with failure to secure the airway are pretty hefty.”
For Karen L. Posner, PhD, the results of the study came as no surprise. “They are consistent with our recent analysis of difficult tracheal intubation malpractice claims filed against anesthesiologists using the Anesthesia Closed Claims Project [Anesthesiology 2019; in press],” said Posner, a research professor of anesthesiology and pain medicine and the Laura Cheney Professor in Anesthesia Patient Safety at the University of Washington, in Seattle.
“In our study, most difficult intubations also occurred in the operating room,” Posner continued. “Death and permanent brain damage were the most common outcomes. Drawing on the rich clinical detail available in the Anesthesia Closed Claims Project database, we found that inadequate airway planning and judgment errors contributed to harm in the most recent difficult intubation claims.”