Case 1 Standard of Care. Disclosures. Defending Critical Care: Navigating Through the Malpractice Maze 5/9/2015. Defending Critical Care:

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1 Defending Critical Care: Navigating Through the Malpractice Maze Defending Critical Care: Navigating Through the Malpractice Maze Joseph Picchi, JD Richard Schoenberger, JD Critical Care Medicine Update May 8, 2015 Neal H. Cohen, MD. MPH, MS Moderator Disclosures No Conflicts to Disclose Neal Cohen Chair, UCSF Risk Management Committee Chair, UCSF Clinical Enterprise Compliance Committee Joseph Picci UCSF Panel of Defense Attorneys Richard Schoenberger A patient was admitted to the ICU after complex spine procedure performed in prone position. At the time of admission the patient remained intubated for airway protection, but was breathing spontaneously with satisfactory gas exchange. Shortly thereafter, the patient s airway was assessed. There was no visible evidence of airway edema and there was a large leak around the endotracheal tube when the cuff was deflated and positive pressure was applied to the lungs. The patient s trachea was extubated. For the next 3 hours, the patient had minimal stridor, but denied dyspnea and maintained satisfactory gas exchange. 1

2 Later that evening the patient developed worsening stridor with audible, noisy respirations. Airway movement was minimal, although the patient initially maintained satisfactory oxygen saturation. In response to the respiratory distress, the respiratory therapist initiated BiPAP with no improvement. The ICU physician attempted emergent intubation using multiple different blades, including a MAC 4 and Miller 2 without success. No other equipment was available at the time of the attempted intubation, since the difficult airway cart was in use in another ICU. Despite attempts to optimize the patient s position and airway, mask ventilation was no longer possible. The patient s oxygen saturation was worsening, so the airway was secured by performing a cricothyroidotomy. Subsequently attempts to wean the patient from mechanical ventilation were difficult. Assessment documented severe tracheal stenosis. The patient required long-term tracheostomy and will require surgical intervention. A retrospective review of the anesthesia record indicated that the initial intubation had been difficult, but was accomplished successfully using a Glidescope for visualization of the airway. Case 1 - Standard of Care The patient s family claims that the care by the critical care physician was below the standard and resulted in the current persistent vegetative state. 2

3 Was the management of this case below the standard of care? Would the standard of care require following the ASA Difficult Airway Algorithm? Does the lack of review of the anesthesia record impact defense of this case and its management? What takes precedence in defending a case? 1. Practice Guidelines (ASA Alogrithm) 2. Geographic Community Standard 3. Peer Institution Standards (eg; academic medical centers versus community hospital standards)? 3

4 Did the ICU physician have the expertise necessary to manage this patient s airway? How does lack of communication between the anesthesiologist and ICU physician impact defense of this case? 1. Anesthesiologist had responsibility for communicating directly with the ICU physician regarding airway management difficulties 2. ICU physician had responsibility for reviewing the medical record and soliciting information from anesthesiologist prior to attempting intubation 3. Both physicians share responsibility for poor communication Case 1 - Standard of Care Case Discussion For the Defense Joseph Picchi For the Plaintiff Richard Schoenberger Case 1 - Standard of Care Does someone always have to take the blame for a bad outcome? What determines the standard of care? How do professional society guidelines and practice advisories influence the definition of standard of care? How does the documentation of communication and coordination or lack thereof influence the management of a case? 4

5 of Care 57 year old female with sepsis and renal insufficiency required institution of renal replacement therapy. The patient was obese with a large pannus. A femoral dialysis catheter was placed to institute CVVH. The physician used a new catheter insertion kit that was recently purchased by the hospital. Seldinger technique was used without the use of ultrasound. Blood aspiration was accomplished on the second insertion attempt. After initiation of the therapy, the patient immediately became hypotensive with marked abdominal distension. Evaluation demonstrated the catheter to be in the retroperitoneum. The patient suffered a cardiopulmonary arrest. Although she was resuscitated, she now remains in a persistent vegetative state. Was this patient s care within the standard for this community? CVVH is not available in some hospitals in this community The patient is not able to participate in clinical decisionmaking but identified a surrogate. The surrogate requests that the patient receive full care and resuscitation, if necessary. How does the surrogate s position impact further clinical decisionmaking? 1. The patient must continue to receive full care and resuscitation if she arrests since she suffered a complication of care 2. Continued supportive care should be provided, but the patient should not be resuscitated if she arrests because of her poor prognosis 3. Ongoing care should be limited to basic life support only (fluids, nutrition) in spite of surrogate s position The patient has been living with a companion for the past 20 years, but did not designate a durable power of attorney for health affairs. She also has an adult son who has not seen her in the past 15 years. Does the decisionmaking process differ if there is no individual with durable power of attorney? 1. No. The decisions are not affected by the lack of a durable power of attorney 2. The live-in partner should determine what care should be provided 3. The son as the only living relative should make decisions about further care 5

6 How might the management of this case be influenced if the patient were a Silicon Valley venture capitalist with high earning potential? 1. Earning potential would not influence the defense of the case 2. The patient s profession would support early settlement in this case 3. Defense of the case will require documentation of the prognosis associated with renal failure and severe sepsis in this patient prior to the cardiopulmonary arrest How would management of this patient and any professional liability issues be affected if the patient were homeless without health insurance? 1. The financial situation would have no affect on the clinical or malpractice management of this case 2. The patient s financial situation makes defense of this case easier and minimizes risks associated with potential malpractice. A note from another physician states patient suffered cardiac arrest due to inappropriate central line placement. Ultrasound was indicated for this patient and was not utilized. How does this note influence defense of this case? 1. This note has no impact on the defense of this complication 2. This note compromises defense of this case How do state laws and tort reform influence legal strategies in this case? 1. State law does not influence the defense process for this case 2. State laws in general and tort reform in particular, where it exists have major impact on defense of this case 6

7 Case Discussion For the Defense Joseph Picchi, JD For the Plaintiff Richard Schoenberger, JD Was the care in this case below the standard? What is the role for a surrogate in clinical decisionmaking? How does the fact that the patient s current clinical condition is the result of a complication influence decisionmaking? For the provider? For the family? What is the influence of other factors Family, significant others? Socioeconomic issues? How does the note from the other physician impact defense of this case? Questions? 7