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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022
| Contributor Information
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Few experiences are more stressful for a physician than being sued for malpractice. Medscape's Malpractice Report 2021 surveyed more than 4300 physicians in 29 specialties who described why they were sued, how the lawsuit worked out, and the impact of their ordeal on their practice and their relationship with patients. In this slideshow, anesthesiologists share their experiences with lawsuits.
(Note: Some totals in this presentation do not equal 100% because of rounding.)
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
A little over half of anesthesiologists were named in a lawsuit in Medscape's 2021 survey, slightly more than the general sample of physician respondents (51%). However, a smaller percentage reported being the only one named (8% vs 13%), and the majority were among several others named in the suit. (Respondents could choose more than one answer.) "Chances are good that you will be involved in a malpractice suit at least once in your career if you are involved in a surgical specialty," one anesthesiologist respondent wrote.
Nevertheless, anesthesiology is not a "hotbed of lawsuits," and that is a "credit to the anesthesia community, as pioneers of patient safety, who have looked to improve things and make them safer," says Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC Group.
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
The most common reason for the lawsuit was treatment/surgery-related complications, followed by abnormal injury, wrongful death, poor outcome/disease progression, and, in one tenth, failure to diagnose/delayed diagnosis. This is notably different from responses of physicians overall, in which failure to diagnose/delayed diagnosis was the most common reason for lawsuits (31%), followed by treatment/surgery-related complications (29%), poor outcomes/disease progression (26%), and wrongful death (13%).
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
This year, about a quarter of PCPs and close to one fifth of specialists paid between $5000 and $9999 annually for coverage. Malpractice premiums were much higher among anesthesiologists, with less than a tenth paying under $5000. Almost a quarter paid between $10,000 and $14,999. This is consistent with findings in Medscape's 2019 Malpractice Premium Report, which showed that anesthesiologists ranked fourth highest in malpractice premiums, with a typical annual premium of $15,000.
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Of those sued, fewer anesthesiologists than physicians overall were "very surprised" (41% vs 54%) or even "somewhat surprised" (37%) by the lawsuit. The most shocking lawsuits took place in situations where the respondent had not personally treated the patient or was no longer treating the patient.
"I didn't even see the patient. The patient's lawyer sued everyone in the group," one anesthesiologist wrote.
Another said, "I was not the one who performed the procedure. I saw the patient after the procedure."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Sometimes it's possible to get a sense of which patient might initiate a lawsuit, but not always. A little over half of anesthesiologists said they could have identified the patient. This is comparable to findings among physicians overall, of whom 54% said they could have identified the patient and 46% said they couldn't.
"There are multiple reasons and scenarios for litigation, and the fair likelihood is that you may be sued at some time in your career, but it's not always possible to know in advance who might file a lawsuit," said Dean Connors, MD, PhD, chair of the Committee on Professional Liability of the American Society of Anesthesiologists.
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Over three quarters of anesthesiologists felt that the lawsuit was not warranted, although some were unsure. Among physicians as a whole, 83% regarded the lawsuit as unwarranted and 11% were unsure.
One anesthesiologist respondent wrote, "I do believe some cases have merit and have witnessed these — mine was certainly not one of them." Another one said, "Ultimately, I felt the patient did have an injury and there was some culpability on behalf of people involved in the care." Another described being "accused for something that was caused by someone else."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to physicians in general, most anesthesiologists reported that their lawsuit never went to trial. One third reported that the suit was settled before trial, similar to 33% of physicians in general.
"My experience is that the truth does come out, either at deposition or at trial — if, God forbid, it gets to a trial, which is less common, although we need to be thoroughly prepared for all eventualities," Connors said.
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Most respondents reported spending more than 40 hours preparing for their defense, while only 3% didn't spend any time at all on such preparation. Similarly, among physicians overall, 35% spent more than 40 hours preparing, and only 2% spent no time on preparation. For some respondents, the number of hours spent on the lawsuit in reviewing records, meeting with lawyers, the deposition, and the trial itself was extremely high.
An anesthesiologist who was sued several times wrote, "In each of my cases, I spent over 2000 hours involved in the case, and every single physician that I know of that has been involved in a malpractice case has spent between 1000 and 2000 hours with it." Many lamented the enormous amount of time taken by the lawsuit. "Phenomenal waste of my time," wrote one respondent. "The family and personal time lost was unrecoverable." Another said, "The hardest thing was the amount of time the lawsuit took from my other patients."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to physicians in other specialties, the most common duration of a lawsuit among anesthesiologists was 1-2 years, followed by 3-5 years. "The hardest thing was the inability to enjoy life and my family for 5 years while the lawsuit dragged on," one anesthesiologist wrote. "The whole process took 10 years, and the trial, when it came, was like a circus," another lamented. A third said that the lawsuit "dragged on for over 3 years with motions and delays" and caused "tremendous stress" during that time.
"If you're litigated against, prepare for a long haul," said Connors, who is an attending physician at the Ohio State University Wexner Medical Center. "These cases can take a long time to evolve and sometimes they can take on a life of their own. Yes, the case may resolve in 1 or 2 years, but it may go on for an excess of 4 years. This can be very tough on clinicians and on their families."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to the majority of physician respondents, close to half of anesthesiologists said they would not have done anything differently. "Nothing related to anesthesia care was substandard — I had provided excellent care," one respondent wrote. But a fifth of respondents said they would have had better chart documentation, compared with 14% of physicians overall. "What you document during care will save you — if you document it. Declarations (recollections) later are not seen as credible as is contemporaneous documentation," wrote one anesthesiologist. "If you don't document, it never happened," wrote another.
"One of the things that can hurt a case the most is inadequate documentation in the medical record," Connors said. "It's incumbent to be thorough and document what happened. Even if it was abnormal, untoward, or adverse, just sit down and document the event in factual terms. And never try to misrepresent a fact."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to physicians overall, over half of anesthesiologists surveyed believed the outcome of their lawsuit was fair, although many expressed that being included in the lawsuit, going through the deposition, or the long-term sequalae were unfair.
"Depositions are one-sided and unfair. You are being interviewed by lawyers who have little to no understanding of what your job is," one respondent wrote. Another thought that "because the patient was harmed, restitution was fair." Another pointed to the adverse impact of the suit on his malpractice premiums, even though he was dismissed from the case, which he regarded as "very unfair."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
When plaintiffs did receive a monetary payment, the most common amount reported was $100,000 or less. This is in contrast to what respondents reported overall, where 40% noted a monetary award of $100,000 or less.
Kolbert said he has seen dental complications arising from certain types of anesthesia, and generally, those types of injuries lead to "small claims." But because anesthesiologists work in surgical situations, other awards might end up being higher.
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to overall survey findings from all specialists, most anesthesiologists did not feel that an apology would have made a difference in preventing a malpractice claim.
"I personally believe it's okay to talk with the patient or family postoperatively, and I have done so with families," said Connors. "Although I don't know if these conversations have prevented litigation or not, it's reasonable to have a conversation, if for no other reason than you're human and feel badly about what happened. But this isn't a situation where you want to express guilt. Rather, express condolences to the family members and leave it at that."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Similar to members of other specialties, almost three quarters of anesthesiologists did not feel that a lawsuit negatively affected their overall medical career.
"You will have to provide information about having been sued when you're applying for hospital credentials, but it's unlikely that one or two lawsuits over a 20- or 30-year career would adversely affect your overall long-term career, especially if you practice within the standard of care," said Connors. "On the other hand, a repeated series of lawsuits will get people's attention and give them pause for thought."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Of the overall population of physicians surveyed in 2021, a little over half said that nothing changed for them following the lawsuit, while approximately one quarter said they trust patients less. Most anesthesiologists did not report any change following the lawsuit, but about a fifth said they trust patients less. Some said they no longer trust surgeons or nurses. One anesthesiologist wrote, "It soured me on medicine and made me hesitant to take challenging cases."
Another respondent wrote, "The emotional roller coaster that comes with being sued as a good doctor is similar to a grieving process. I can say this was the most traumatic experience of my career."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
"We do not yet know how COVID has affected or will affect the malpractice environment for anesthesiologists," Connors said. "We are seeing COVID patients in operating rooms because they get into traumas, have significant medical issues beyond COVID, and come into our ERs. And even though we're trying to control access and require patients to demonstrate immunity and have a negative COVID test, we still see them because when a patient comes up from the ER, we don't ask them to stop and be tested in an emergent situation. So everyone in the OR has to assume the patient is COVID-positive unless proven otherwise. We have to have full PPE and be fully masked, gowned, and gloved until we have documentation that the patient isn't COVID-positive."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
While only a small percentage of anesthesiologists have been named thus far in a malpractice suit for an action committed by one of these clinicians, that number may well grow as the NP/PA workforce continues to expand.
"In cases I have looked at, where I have served as an expert witness, I have seen litigation against midlevel providers," Connors said. "They are actively involved in the perioperative process; and although they may play a different role from the physician anesthesiologist, when there is an adverse outcome and litigation, the physician, surgeon, and hospital are often named and are considered fair game."
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
Most anesthesiologist respondents are not concerned about being named in a malpractice suit because of an issue that arose during the pandemic. But Connors cautioned that it's important to remain vigilant about COVID-related concerns, even in patients who have recovered from the virus, now test negative, and are asymptomatic. "We are still seeing ongoing respiratory or pulmonary issues and a fair amount of bronchial reactivity and bronchospasm, which are important to be aware of."
And some anesthesiologist respondents do not feel sanguine about the future. "I think we could see claims related to overtreatment of COVID resulting in poorer outcomes, due to initial lack of knowledge on how to treat," one anesthesiologist wrote.
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Medscape Anesthesiologist Malpractice Report 2021
Batya Swift Yasgur, MA, LSW | January 27, 2022 | Contributor Information
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Batya Swift Yasgur, MA, LSW
Reporter, Medscape Business of Medicine
Disclosure: Batya Swift Yasgur, MA, LSW, has disclosed no relevant financial relationships.
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