Distractions in the Operating Room: An Anesthesia Professional’s Liability?

By Brian J. Thomas, JD

We examine the increasing incidents of distractions in the operating room that potentially threaten patient safety and increase anesthesia providers’ exposure to litigation and other negative consequences. Specifically, distractions from the use of personal electronic devices in the operating room for purposes not related to patient care are reportedly widespread in the anesthesia community. Plaintiff attorneys are increasingly including allegations of negligent care caused by distractions in the operating room in medical negligence litigation. In this issue, we highlight a case summary involving allegations of “distracted doctoring,” the impact the evidence of distractions had on the evaluation of the case, and the significant challenges of overcoming that evidence in the courtroom. We also offer some risk management strategies to assist anesthesia providers in avoiding and minimizing distractions in the operating room.¹

Technology has advanced many aspects of the practice of anesthesiology including, but not limited to: immediate availability of patient medical records, more efficient communication and connectivity, contemporaneous documentation, improved legibility in the medical record, clinical decision support, and data acquisition, management and analyses. This same technology has also given rise to new patient safety and medicolegal concerns.² One emerging concern for many anesthesia practices is the proliferation and use of personal electronic devices (PEDs)² in the operating room (OR).

Given the degree to which PEDs have become a fixture in our daily lives, it is not surprising that anesthesia practices are confronted with the challenge of how to effectively manage PEDs in the OR and other patient care areas. From Preferred Physicians Medical’s (PPM) vantage point as a medical professional liability insurance company, any distractions in the OR or patient care areas can jeopardize patient safety and/or negatively impact PPM’s ability to successfully defend malpractice lawsuits. The use of PEDs for personal or non patient-related activities increases the patient safety concern and compounds the challenge of defending anesthesia providers in the event of an adverse outcome. Distractions related to the use of PEDs have recently surfaced in anesthesia litigation, medical licensing board investigations, and as a basis for facilities to seek revocation of medical staff privileges.

The Data

The potential for distractions in the OR and other patient care areas is, of course, not limited to PEDs. Reading in the OR, for instance, has been debated for years. Moreover, research on the impact of reading in the OR has been inconclusive. For example, a 2009 study examined the effects of reading in the OR on vigilance and workload during anesthesia care and concluded there were no scientific data that intraoperative reading and non patient-related conversation during low-workload portions of the maintenance phase of anesthesia adversely affect vigilance or multi-tasking.³ In fact, Slagle et al. suggested that reading may actually improve vigilance under some circumstances by keeping the anesthesia provider intellectually occupied and clinically stimulated, thus averting boredom or mental inactivity.

Admittedly, little scientific data and research regarding the role of PEDs in the anesthesia environment are currently available. The ASA Closed Claims database reports a relatively small (13 of 5822) number of claims related to distractions in the OR.⁴ Given the delay associated with studying closed claims, it is not surprising that, to date, the database currently reflects distractions such as printed materials, phone calls, and loud music. Distraction-related claims, however, were judged as substandard care in 91% of claims compared to 50% of other claims. Settlements were made in over 80% of the distraction-related claims for a median payment of $725,937.

Given the data currently available, most of the commentators and cited authors agree that additional scientific research and data are needed to evaluate the impact of PEDs on anesthesia provider performance. Domino et al. suggested future research should include sophisticated electronic and human-factors methodology to consider the effects of PEDs and other distracting activities on vigilance and performance during simulated and actual anesthesia care.⁴

The Litigation Problem

Notwithstanding a lack of scientific data of distractions from PED use during anesthesia care, the potential for distraction is a growing concern in the medicolegal arena. In the last several years, PPM has defended multiple lawsuits involving allegations and evidence of distractions from the personal use of PEDs in the OR and other patient care areas. In PPM’s experience, the mere suggestion that an anesthesia provider was distracted can negatively impact PPM’s ability to defend the anesthesia provider. Texting, “surfing” the Internet, social media, personal cell phone conversations, or playing video games may also create a negative perception among other OR team members that the anesthesia provider was not paying attention to the patient.

Additionally, plaintiff attorneys have no difficulty identifying anesthesiology experts who will testify that the use of PEDs for non patient-related activities in the OR and other patient care areas is well below the standard of care and contrary to the very hallmark of a competent and professional anesthesia provider­—vigilance.³

Plaintiff attorneys can be expected in such cases to subpoena cell phone records and retain information technology (IT) experts to scour computer hard-drives to obtain metadata as evidence that the anesthesia provider was distracted in the OR. Metadata, the “data about data” created by computer operating systems and applications, allows plaintiff attorneys and their experts to determine, among other information, the exact date and time a web page was visited, a text or e-mail was sent or received, a cell phone call was made or received, the parties’ phone numbers and the duration of the communication. Unlike distractions in the OR allegedly caused by reading or loud music, where the evidence is typically limited to other witnesses’ recollections of the events, the presence of PEDs in the OR provides plaintiff attorneys with a new evidentiary avenue. The increased use of electronic discovery (or “e-discovery”) allows metadata to serve as an “expert witness” to establish a very detailed timeline of electronic activities in the OR.

In PPM’s recent experience, courts have ruled that cell phone records and metadata are discoverable (i.e., parties to the litigation are entitled to obtain that evidence) and such evidence may be admissible (i.e., parties to the litigation are allowed to present that evidence to the jury to be considered in reaching a verdict). PPM’s defense counsel have opined that allegations and evidence of distractions from personal PED use during surgery could potentially shock, anger, and inflame jurors (most of whom have little to no knowledge of the day-to-day activities that occur in ORs). In PPM’s own cases, defense counsel have suggested that evidence of distraction increases the potential for multimillion dollar verdicts, possibly including punitive damages, against an allegedly distracted anesthesia provider involved in a significant adverse outcome.

Other Consequences

PPM is aware of several high-profile lawsuits involving allegations and evidence of distractions in the OR that resulted in additional negative consequences including, but not limited to:

• Suspension and non-renewal of privileges at practice facilities
• State medical licensing board investigations and sanctions
• Significant negative media coverage
• Public relations challenges for the individual anesthesiologist and practice group
• Loss of employment
• National Practitioner Data Bank Reporting

What is the Solution?

In response to the patient safety concerns related to distractions in the OR and other patient care areas from the use of PEDs for non patient-related purposes, several professional societies and organizations have established position statements and guidelines to define appropriate PED use in the OR.^5-8 Other health care institutions, residency programs, and anesthesia practice groups have attempted to address this issue by establishing PED guidelines and policies. These PED policies range from zero-tolerance (e.g., no PED use in OR) to more balanced policies that allow PED use for purposes directly related to patient care, online research and communications between medical staff members, and verifying surgery schedule assignment.

Based on PPM’s experience defending litigation involving allegations of distractions in the OR, PPM recommends that anesthesia providers work with their facilities to establish guidelines and expectations for the entire OR team that balance the benefits of having access to PEDs in the OR with the potential patient safety risks posed by the inappropriate use of PEDs. PED guidelines and policies should have the goal of educating the medical staff about distractions from PED use and its potentially devastating effect on patient safety. Once implemented, PED guidelines or policies should also be monitored for compliance to ensure the facility and medical staff are promoting a culture of patient safety.

“In addition to PED guidelines and policies, from a risk management perspective, exercising good judgment and common sense is the best way to avoid and minimize distractions in the OR from PEDs,” according to Wade Willard, PPM’s Vice President—Claims. Until additional scientific research and data are available to further evaluate this issue, PPM offers the following risk management strategies to reduce distractions in the OR.

Risk Management Strategies That May Reduce Distractions in the OR

Review and comply with practice facilities’ PED guidelines and/or policies

Implement a “sterile cockpit”* “no interruption zone”⁷ protocol during critical phases of procedures

Eliminate all discretionary sources of noise during “sterile” periods

Avoid loud or distracting music

Limit personal telephone calls and text messages to urgent or emergent situations

Forward cell phone calls and transmissions to voice mail or memory

Silence ring tones

Keep all telephone calls to a minimum and brief as possible

Limit OR internet access only to patient-care-related websites

Avoid discretionary Internet-based activities and browsing

Minimize nonessential conversation, especially during critical phases

Limit interruptions from outside staff and others

Set an example—vigilance and focused attention on the patient are paramount

Speak up—let others know when their PED use is distracting the OR team

*The sterile cockpit concept is derived from aviation law that prohibits crewmembers from engaging in any activity except those duties required for the safe operation of the aircraft during critical phases of flight, including taxi, takeoff, landing and all other flight operations conducted below 10,000 feet. “Sterile” periods in health care include, but are not limited to: induction and emergence of anesthesia, critical events during the anesthetic and/or surgery and unanticipated events requiring additional OR team communication.

Distractions in the Operating Room:
A Case Study

The following case highlights some of the significant challenges in defending anesthesia providers in litigation involving allegations and evidence of distractions in the OR:

The case involved a 53-year-old male with medical history significant for atrial fibrillation and smoking who presented for an elective cardiac atrial fibrillation ablation under general anesthesia. The anesthesia provider performed the pre-anesthesia examination and assigned the patient an ASA III classification.
Shortly after the induction of anesthesia and placement of the endotracheal tube (ETT), the cardiologist performed a transesophageal echocardiogram (TEE) that revealed an ejection fraction of 40–45%. Four minutes into the procedure, the patient’s systolic blood pressure dropped into the 80s. The anesthesia provider administered 10 mg ephedrine, but the blood pressure stayed in the 80s, and the pulse rate went up to 180 beats per minute (bpm). The anesthesia provider informed the cardiologist about the changes in vitals, but the cardiologist indicated that he was not concerned about the heart rate because he was trying to locate the source of the atrial fibrillation, and there were no signs of ischemia on the EKG.

The anesthesia provider supported the blood pressure with phenylephrine IV in 200 mcg boluses. He informed the cardiologist of his treatment, and the cardiologist was aware of the events due to the monitors in front of him. The anesthesia provider also lowered the anesthetic inhalational agent (sevoflurane) and gave fluid to maintain blood pressure. The blood pressure was labile and required multiple interventions throughout the case.

The patient’s systolic blood pressure dropped into the 60s on two occasions. The anesthesia provider decided to begin a low-dose dopamine infusion to help control the blood pressure, and he notified the cardiologist of his activities. Once he initiated the dopamine infusion, the systolic blood pressure stabilized in the 90s. About 45 minutes later, the blood pressure dropped again and the anesthesia provider increased the dopamine infusion and the phenylephrine boluses, at which point the systolic pressure rose to 110. He continued to communicate his treatment choices to the cardiologist throughout the procedure. Although the cardiologist was aware of the volatile shifts in the blood pressure, the anesthesia provider believed that he was not concerned because he continued with the ablation procedure.

Approximately 15 minutes after the systolic pressure had risen to 110, it again dropped into the low 80s. Phenylephrine administration only assisted in bringing it up for a few minutes, and then it dropped into the 50s and would not increase in response to medications. The EKG showed that the patient’s heart was generating electrical impulses, but it became clear that his heart was not beating and he was experiencing pulseless electrical activity (PEA).

A Code was called and the cardiologist suspected the patient was experiencing a cardiac tamponade. Multiple attempts to perform pericardiocentesis were unsuccessful. Another cardiologist arrived to assist and was able to drain 450 to 600 cc of fluid from the pericardial sac. The heart rate was restored and the patient was transferred to ICU. Unfortunately, the patient never recovered from the Code, and was eventually taken off the ventilator and passed away.

The patient’s wife and son sued the anesthesia provider, the cardiologist, and the hospital. The patient’s family alleged the anesthesia provider failed to: recommend that the cardiologist stop the procedure due to the hemodynamic instability caused by the hypotension, properly evaluate the cause of the hypotension that persisted for over two hours prior to the cardiac arrest, and maintain an acceptable blood pressure. The patient’s family alleged further that the anesthesia provider’s negligence contributed to the cardiac arrest resulting in hypoxic ischemic brain injury and death.

Defense experts retained on behalf of the anesthesia provider were supportive of his care. The anesthesiology expert believed that the anesthesia provider’s treatment of the hypotension met the standard of care, and he appropriately communicated the patient’s changing vitals and hemodynamic status to the cardiologist throughout the case. Further, he opined that the anesthesia provider does not have a duty, or even an ability, to stop the procedure as that decision is up to the cardiologist.

Despite the supportive expert witness, during discovery several nurses present in the OR testified the anesthesia provider was texting and reading articles on the Internet throughout the entire case and even during the Code. The anesthesia provider’s mobile phone records, however, confirmed the anesthesia provider did not receive or send a text during the procedure. In deposition testimony, the anesthesia provider acknowledged he was looking at emails on his mobile phone during the procedure. The Internet log for the computer in the cardiac catheter lab confirmed that the anesthesia provider was accessing the Internet at various times during the procedure. He last accessed the Internet approximately eight minutes before the Code started. While there was no specific evidence the anesthesia provider was on the Internet during the Code, there was electronic evidence that the anesthesia provider was reading news stories on Yahoo and accessing his personal email account during the procedure.

Based on this evidence, defense counsel opined a jury would likely react very negatively to evidence that the anesthesia provider was accessing the Internet and his personal email in the cardiac catheter lab just moments before the Code. In the face of testimony from multiple nurses that the anesthesia provider was using a mobile phone throughout the procedure, and even during the Code, defense counsel was concerned PPM would be unable to persuasively defend the anesthesia provider given this potentially inflammatory testimony.

Based on defense counsel’s evaluation, the anesthesia provider consented to settlement. The parties participated in mediation and the case was settled within the insurance policy limits.

Brian J. Thomas, JD, is Vice President of Risk Management at Preferred Physicians Medical (PPM), a professional liability company for anesthesiologists, in Overland Park, KS. Mr. Thomas was an invited speaker at the recent APSF Conference on this topic. He has no financial conflicts of interest to disclose.

References

1. Thomas BJ. Asleep at the Wheel? Distractions in the Operating Room.Anesthesia and the Law. August 2014, Issue 39.
2. Cammarata BJ, Thomas BJ. Technology’s escalating impact on perioperative care: clinical, compliance, and medicolegal considerations. APSF Newsletter 2014;29:3-5.
3. Slagle JM, Weinger MB. Effects of intraoperative reading on vigilance and workload during anesthesia care in the academic medical center. Anesthesiology 2009;110:275-83.
4. Domino KB, Sessler DI. Internet use during anesthesia care: does it matter? Anesthesiology2012;117:1156-8.
5. American College of Surgeons. Statement on use of cell phones in the operating room. Bull Am Coll Surg. 2008;93:33-34.
6. American Association of Nurse Anesthetists. Mobile Device Use (formerly Position Statement Number 2.18) 2012.
7. Position Statement on Managing Distractions and Noise During Perioperative Patient Care. 2014.
8. Patterson P. Adopting a “no interruption zone” for patient safety. OR Manager2013 Feb;29:20-2.