AIRWAY LAWSUITS

At weddings you’ll often hear a Bible verse that reads, “And now these three remain: faith, hope and love. But the greatest of these is love.” (1 Corinthians 13:13)

A parallel verse in the bible of acute care medicine would read, “Emergencies are managed by airway, breathing, and circulation. But the greatest of these is airway.”

Every health care professional learns the mantra of airway-breathing-circulation. Anesthesiologists are the undisputed champions of airway management. This column is to alert you that avoiding even one airway disaster during your career is vital.

Following my first deposition in a medical-legal case years ago, I was descending in the elevator and a man in a suit asked me what I was doing in the building that day. I told him I’d just testified as an expert witness. He asked me what my specialty was, and I told him I was an anesthesiologist. The whistled through his teeth and smirked. “Anesthesia,” he said, “Huge settlements!”

I’ve consulted on many medical malpractice cases which involved death or brain damage, and airway mishaps were the most common etiology. It’s possible for death or brain damage to occur secondary to cardiac problems (e.g. shock due to heart attacks or hypovolemia), or breathing problems (e.g. acute bronchospasm or a tension pneumothorax), but most deaths or brain damage involved airway problems. Included are failed intubations of the trachea, cannot-intubate-cannot-ventilate situations, botched tracheostomies, inadvertent or premature extubations, aspiration of gastric contents into unprotected airways, or airways lost during sedation by non-anesthesia professionals.

Google the keywords “anesthesia malpractice settlement,” and you’ll find multiple high-profile anesthesia closed claims, most of them related to airway disasters. Examples from such a Google search include:

1. The Chicago Daily Law Bulletin featured a multimillion-dollar verdict secured by the family of a woman who died after being improperly anesthetized for hip surgery. The anesthesiologist settled prior to trial, resulting in the family being awarded a total of $11.475 million for medical negligence. The 61-year-old mother and wife was hospitalized in Chicago for elective hip replacement surgery.  Because of a prior bad experience with the insertion of a breathing tube for general anesthesia, she requested a spinal anesthetic. Her anesthesiologist had trouble inserting a needle for the spinal anesthesia, so he went ahead with general anesthesia. The anesthesiologist was then unable, after several attempts, to insert the breathing tube. He planned to breathe for her through a mask and let her wake up to breathe on her own.  A second anesthesiologist came into the room and decided to attempt the intubation. He tried but was also unsuccessful. Finally, a third anesthesiologist came into the operating room and tried inserting the breathing tube several times. He too was unsuccessful. All of the attempts at inserting the tube caused the tissues in her airway to swell shut, blocking off oxygen and causing cardiac arrest. She suffered severe brain damage and died.
2. $20 Million Verdict Reached in Medical Malpractice Lawsuit Against Anesthesiologist. A jury returned a $20 million verdict in an anesthesia medical malpractice lawsuit filed by the family of a woman who died during surgery when bile entered her lungs. The wrongful death lawsuit alleged that the anesthetists failed to identify that the victim had risk factors for breathing fluid into her lungs, despite the information being available in her medical record. The victim was preparing to receive exploratory surgery to determine the cause of severe stomach pains when she received the anesthesia. Once anesthetized, she began breathing bile into her lungs. She then later died. The jury awarded $20 million in favor of the plaintiff.
3. A $35 million medical malpractice settlement was matched by only one other as the largest settlement for a malpractice case in Illinois, and the most ever paid by the County of Cook for a settlement of a personal injury case. The client, a 28-year-old woman, suffered severe brain damage from the deprivation of oxygen resulting from the failure of an anesthesiologist to properly secure an intubation tube. The client, immediately following the occurrence, was in a persistent vegetative state from which the likelihood of recovery was virtually nil. Miraculously, she regained much of her cognitive functioning, although still suffering from significant physiological deficits requiring attendant care for the rest of her life.
4. Anesthesia Death Results in $2 Million Settlement: 36-Year-Old Man Dies From Anesthesia Mishap Following Elective Hernia Repair Surgery. The plaintiff’s decedent was a 36-year-old man who died secondary to respiratory complications following an elective hernia repair. During the pre-operative anesthesia evaluation, the defendant noted the patient had never been intubated and had required a tracheostomy for a previous surgery. The defendant decided to administer general endotracheal anesthesia with rapid sequence induction. The surgery itself was without incident. Following extubation, the patient began to have difficulty breathing. The patient desaturated. The surgeon was called back to the OR to perform  a tracheostomy, however, there was no improvement in the patient’s oxygenation and he continued to have asystole. Subsequently, he went into respiratory arrest and coded. The code and CPR were unsuccessful, and the patient was pronounced dead.

Per Miller’s Anesthesia, failure to secure a patent airway can result in hypoxic brain injury or death in only a few minutes. Analysis of the American Society of Anesthesiologists (ASA) Closed Claims Project database shows that the development of an airway emergency increases the odds of death or brain damage by 15-fold. Although the proportion of claims attributable to airway-related complications has decreased over the past thirty years since the adoption of pulse oximetry, end-tidal-CO2 monitoring, and the ASA Difficult Airway Algorithm, airway complications are still the second-most common cause of malpractice claims. (Miller’s Anesthesia, Chapter 55, Management of the Adult Airway, 2014).

In 2005, in the ASA-published Management of the Difficult Airway: A Closed Claims Analysis (Petersen GN, et al, Anesthesiology 2005; 103:33–9), the authors examined 179 claims for difficult airway management between 1985 and 1999. The timing of the difficult airway claims was: 67% upon induction, 15% during surgery, 12% at extubation, and 5% during recovery. Death or brain damage during induction of anesthesia decreased 35% in 1993–1999 compared with 1985–1992, but death or brain damage from difficult airway management during the maintenance, emergence, and recovery periods did not decrease during this second period. There is no denominator to compare with the numerator of the number of closed claims, so the prevalence of airway disasters was unknown.

Awake intubation is touted as the best strategy for elective management of the difficult airway for surgical patients. Fiberoptic scope intubation of the trachea in an awake, spontaneously ventilating patient is the gold standard for the management of the difficult airway. (Miller’s Anesthesia, Chapter 55, Management of the Adult Airway, 2014). Awake intubation is a useful tool to avert airway disaster on the oral anesthesiology board examination. Dr. Michael Champeau, one of my partners, has been an American Board of Anesthesiology Senior Examiner for over two decades. He tells me that oral board examinees choose awake intubation for nearly every difficult airway. This is wise–it’s hard to harm a patient who is awake and breathing on their own. Is the same strategy as easily implemented outside of the examination room? In actual clinical practice, an awake intubation may be a tougher sell. Awake intubations are time-consuming, require patience and understanding from the surgical team, and can be unpleasant to a patient who will be conscious until the endotracheal tube reaches the trachea–an event which can cause marked coughing, gagging, hypertension and tachycardia in an under-anesthetized person. As anesthesia providers, we perform hundreds of asleep intubations per year, and only a very small number of awake intubations. Inertia exists pushing anesthesia providers to go ahead and inject the propofol on most patients, rather than to take the time to topically anesthetize the airway and perform an awake intubation. But if you’ve ever lost the airway on induction and wound up with a “cannot intubate-cannot ventilate” patient, you’ll understand the wisdom in opting for an awake intubation on a difficult airway patient.

I refer you to Chapter 55 of Miller’s Anesthesia for a detailed treatise on the assessment and management of airways, which is beyond the scope of this column. In addition to the reading of Chapter 55, I offer the following clinical pearls based on my 30 years of practice and my experience at reviewing malpractice cases involving airway tragedies:

1. Become skilled at assessing each patient’s airway prior to anesthesia induction. Pertinent information may be in the old chart or the patient’s oral history as well as in the physical examination. Red flags include: previous reports of difficulty passing a breathing tube, a previous tracheostomy scar, morbid obesity, a full beard, a receding mandible, inability to fully open the mouth, rigidity of the cervical spine, airway tumors or masses, or congenital airway deformities.
2. Learn the ASA Difficult Algorithm and be prepared to follow it. (asahq.org/…/ASAHQ/…/standards-guidelines/practice-guidelines-for- management-of-the-difficult-airway.pdf‎).
3. Become skilled with all critical airway skills, particularly mask ventilation, standard laryngoscopy, video laryngoscopy, placement of a laryngeal mask airway (LMA), fiberoptic intubation through an LMA, and awake fiberoptic laryngoscopy.
4. Read the airway strategy recommended in the Appendix to Richard Jaffe’s Anesthesiologist’s Manual of Surgical Procedures, an approach which utilizes a cascade of the three critical skills of (A)standard laryngoscopy, (B)video laryngoscopy, and (C)fiberoptic intubation through an LMA. For a concise summary of this approach read my column Avoiding Airway Disasters in Anesthesia (http://theanesthesiaconsultant.com/2014/03/14/avoiding-airway-disasters-in-anesthesia).
5. If you seriously ponder whether awake intubation is indicated, you probably should perform one. You don’t want to wind up with a hypoxic patient, anesthetized and paralyzed, who you can neither intubate nor ventilate.
6. If you’re concerned about a difficult intubation or a difficult mask ventilation, get help before you begin the case. Enlist a second anesthesia provider to assist you with the induction/intubation.
7. Take great care when you remove an airway tube on any patient with a difficult airway. Don’t extubate until vital signs are normal, the patient is awake, the patient opens their eyes, and the patient is demonstrating effective spontaneous respirations. An airways that was routine at the beginning of a surgery may be compromised at the end of surgery, due to head and neck edema, airway bleeding, or swollen airway structures, e.g. due to a long anesthetic with a prolonged time in Trendelenburg position.
8. If you’re a non-anesthesia professional administering conscious sedation, never administer a general anesthetic sedative such as propofol. A combination of narcotic and benzodiazepines can be easily reversed by the antagonists naloxone and flumazenil if oversedation occurs. There is no reversal for propofol. Airway compromise from oversedation due to propofol must be managed by mask ventilation by an airway expert.

In its 1999 report, To Err Is Human:  Building a Safer Health System, the Institute of Medicine recognized anesthesiology as the only medical profession to reduce medical errors and increase patient safety. With the pulse oximeter, end-tidal-CO2 monitor, a myriad of airway devices, and the Difficult Airway Algorithm, the practice of anesthesia in the twenty-first century is safer than ever before. Let’s keep it that way.

Faith, hope, and love. The greatest of these is love.

Airway, breathing, and circulation. The greatest of these is airway. Your patient’s airway.

Introducing …,  THE DOCTOR AND MR. DYLAN, Dr. Novak’s debut novel. Publication date September 9, 2014 by Pegasus Books.

The first four chapters are available for free at Amazon. Read them and you’ll be hooked! To reach the Amazon webpage, click on the book cover image below:

Stanford professor Dr. Nico Antone leaves the wife he hates and the job he loves to return to Hibbing, Minnesota where he spent his childhood. He believes his son’s best chance to get accepted into a prestigious college is to graduate at the top of his class in this remote Midwestern town. His son becomes a small town hero and academic star, while Dr. Antone befriends Bobby Dylan, a deranged anesthetist who renamed and reinvented himself as a younger version of the iconic rock legend who grew up in Hibbing. An operating room death rocks their world, and Dr. Antone’s family and his relationship to Mr. Dylan are forever changed.

Equal parts legal thriller and medical thriller, The Doctor and Mr. Dylan examines the dark side of relationships between a doctor and his wife, a father and his son, and a man and his best friend. Set in a rural Northern Minnesota world reminiscent of the Coen brothers’ Fargo, The Doctor and Mr. Dylan details scenes of family crises, operating room mishaps, and courtroom confrontation, and concludes in a final twist that will leave readers questioning what is of value in the world we live in.

Learn more about Rick Novak’s fiction writing at

https://ricknovak.com