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Medicolegal Issues

Litigation in Canada Against Anesthesiologists Practicing Regional Anesthesia: A Review of Closed Claims

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PHILIP W.H. PENG AND KARL G. SMEDSTAD

Departments of Anesthesia, University of Toronto, Toronto, Ontario, Canada, and McMaster University, Ottawa, Ontario, Canada

Can. J. Anesth., 47: 105–112, 2000

The Canadian Medical Protective Association (CMPA) provided information on all anesthesia claims that closed in the years 1990 to 1997 to review the pattern of malpractice litigation related to regional anesthesia in Canada. During that period, 7909 legal actions involving all 56,000 CMPA members were closed. Of the claims, 310 involved anesthesiologists, of which 61 were related to regional anesthesia. Forty-two involved neuraxial blocks, and the legal outcome was dismissed or resulted in a judgment favorable to the physician in 37. Nineteen claims related to peripheral nerve blocks, all of which had favorable outcomes. In all, 10% of regional anesthesia claims had unfavorable outcomes, compared with 28% of all anesthesia-related claims and 30% of all CMPA members’ claims. The degree of disability in the regional anesthesia claims were: none 10%; minor 49%; major 36%; and catastrophic 5%. No deaths occurred in the malpractice claims related to regional anesthesia, compared with 17% in the all anesthesia group and 11% in all members’ claims.

Results showed that 20% of all anesthesia claims in Canada are related to regional anesthesia. In 90%, the legal outcome of these claims was favorable. An unfavorable clinical outcome was associated with catastrophic or major injury. No deaths were involved in the regional anesthesia claims.

Comment:

This article reviews closed claims from the primary physician insurer in Canada with a focus upon regional anesthesia. The authors report the epidemiology of claims and find that regional anesthesia is associated with approximately 20 percent of cases, have generally favorable results (i.e., the physician prevailed), and regional anesthesia seems to be somewhat different compared with all malpractice claims against physicians.

This study is limited by the very small number of claims reviewed—only 61 cases. As well, although the authors could have provided significant analysis using this information, their approach was very abbreviated, and hence, their conclusions seem to be of limited applicability and validity.

First, the authors noted that there were a total of 310 claims against anesthesiologists during the study period; yet the study authors only categorized the regional anesthesia/neuraxial block cases. We are not provided with a description of the other 170 cases, their disposition, or their clinical circumstance. Such a description is important so that the relative place of regional anesthesia in the spectrum of all types of anesthesia claims can be assessed. Without such information, it is quite difficult to determine if or why regional anesthesia is or is not different from other anesthesia practice in terms of malpractice claims.

In addition, the authors provide a description of the presence and type of adverse outcome (if any) relating to the claims. On the basis of this limited data, which is not analyzed or statistically tested in any manner, the authors conclude that “Patients who have sustained a serious injury as a result of a procedure are likely to sue.” The issue of whether patients sue and juries decide on the basis of severity of injury is a contentious one 1,2,3; yet the authors do not cite any of the literature on the topic nor can they substantiate this conclusion on the basis of their data, valid analysis, or discussion.

This difficulty of making conclusions on the basis of the authors’ limited data description and analysis also extends to other areas. For example, the authors state that “Regional anesthesia was associated with a greater chance of a favourable [legal] outcome.” Yet this conclusion is also without foundation, for the authors did not parse the types of anesthesia that resulted in claims nor did they perform any statistical manipulation of the data and compare results with some standard or baseline. Similarly, the authors make statements unrelated or unsupported by their data or analysis: for example, “Anesthesiologists can protect themselves by always documenting assessments, consent discussions, preexisting conditions, details of procedures and monitoring, as well as vital signs”; and “good communication before, during and after the procedure may prevent a malpractice claim.” Of course, the authors did not assess the relationship between the legal results of the claims and documentation, informed consent, preexisting conditions, and so forth, nor did they assess results on the basis of communication. There is some literature that supports these contentions; but the authors do not cite these works and certainly these conclusions are not based upon an analysis of data in the article.

Other problems attend with this work as well. One rationale for publishing this work according to the authors is that although “Studies of insurance claims related to anesthesia practice in the USA and Finland have been published[,] [s]imilar information regarding Canadian practice is lacking . . . .” Yet the discussion provides no comparative analysis between the study findings and information from the United States or Finland. This comparative analysis could have been the major benefit to the medical community from this data.

As well, some of the statements within the article raise doubts as to the authors’ substantive understanding of the rule of medical malpractice, and hence the authors’ analysis. For example, the authors provide information on adverse outcomes cases in their analysis: “The recordkeeping by the anesthesiologist was poor, therefore adequate monitoring could not be proved in court”; “another case of paraplegia involved insertion of a thoracic epidural catheter for postoperative pain relief in a patient under general anesthesia without discussion or consent.” Unfortunately, in the first case, it should be noted that under traditional negligence law,the defendant physician need not “prove” anything; unless there is a res ipsa loquitur instruction, it is the duty of the plaintiff to do any “prov[ing].”4 In the second case, clearly the situation invoked issues of informed consent; yet informed consent is a wholly different legal claim than medical malpractice. 5 Such misunderstandings of the legal rules and categories of negligence put into question the substantive assessments made by the authors in the study. Related to this point, the authors also did not consider the potential for varying standards of care that have been reported in anesthesia 6 as well as radiology 7 and internal medicine/family practice, 8 which would impact any analysis of malpractice litigation patterns.

It should also be noted that the authors state that “The [medical insurer] takes 8% of its cases to trial. Of these, 6% are judged in favour of the defendant doctor, and 2% in favour of the plaintiff. In other jurisdictions, where medical malpractice is defended by insurers, the settlements are more frequent and favourable court judgments fewer.” This rather strong contention is uncited; however, it should be noted that the 75% win rate described by the authors as being more favorable than other efforts is clearly incorrect at least with regard to the United States, where physicians sued for medical malpractice prevail in at least 75% of cases, if not higher. 9

Finally, and not least in the difficulties with this article, is the complete inattention to medical error and patient safety. The large majority of patient injury around the world is associated with medical error;10 yet the incidence of malpractice, appropriateness of the verdicts, and systems factors that might have contributed to the patient injury are not alluded to or discussed at all. This omission is all the more important because anesthesia has led the field of medicine in attempting to reduce error in medicine and concomitant patient injury.

Overall, this study attempts to provide some information on medical malpractice claims in Canadian regional anesthesia practice. However, owing to significant oversights regarding the literature, little substantive analysis, and potential problems in understanding the relevant negligence definitions and rules, this study does not fulfill its potential in providing important information on medical malpractice for the interested reader.

Bryan A. Liang M.D. Ph.D. J.D.

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© 2001 Lippincott Williams & Wilkins, Inc.