Presenting a live 90-minute webinar with interactive Q&A Pursuing or Defending Anesthesiology Malpractice Claims: Standards of Care, Co-Defendants, Special Liabilities TUESDAY, NOVEMBER 20, 2018 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: C. Gregory Tiemeier , Partner, Tiemeier & Stich , Denver Alex Wilschke, Partner, Leventhal & Puga , Denver The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1 .
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Pursuing Anesthesiology Malpractice Claims Alex Wilschke Leventhal & Puga, P.C. 950 S. Cherry Street, Suite 600 Denver, CO 80246 Phone: (303) 759-9945 Fax: (303) 759-9692 Email: awilschke@Leventhal-law.com
Defending the Anesthesiology Malpractice Lawsuit C. Gregory Tiemeier Tiemeier & Stich, P.C. 1000 East 16th Ave Denver, CO 80218 Phone: (303) 531-0022 Fax: (303) 531-0021 Email: gtiemeier@tslawpc.com
Case Selection Ordinary case and client selection criteria ◦ Liability ◦ Causation ◦ Damages ◦ Type of Procedure Comorbidities can make the anesthesia case 3
Defendant Selection State Specific Legal Doctrines Complicate This Decision ◦ Corporate Practice of Medicine ◦ Captain of the Ship Doctrine Surgical Center MD CRNA – Supervisor? Some states are eliminating the Supervision requirement. Consultation with surgeon performing surgery 4
Expert Selection Practice in the same type of practice ◦ Hospital Based ◦ Non-Hospital Based Practice in the same type of Community Practice with the same licensure Literature Prior T estimony 5
The Defense Perspective ISSUES FOR THE DEFENDANT IN ANESTHESIOLOGY MALPRACTICE CASES 10
The Defense Perspective WHY DO ANESTHESIOLOGISTS GET SUED? 11
STATISTICS HALF of all anesthesiology lawsuits are the result of an unexpected injury. ◦ Failure to save a life (death) ◦ Neurologic injury ◦ Overdose of anesthesia meds 12
STATISTICS Common errors leading to lawsuits: ◦ Wrong dosage of anesthesia meds ◦ Improper intubation ◦ Not properly monitoring the patient 13
Liability Issues Medication Errors ◦ Right Patient ◦ Right Drug ◦ Right Dose ◦ Right Route ◦ Right Time ◦ Right Documentation Location Concerns American Society of Anesthesiologists (ASA) Grading System ◦ Hospital ◦ Ambulatory Surgical Center 10
Liability Issues Pre-Operative Care ◦ Complete work up for other conditions ◦ Review Medical Records and Imaging ◦ History and physical Intra-Operative Care ◦ Monitoring and Recording Post-Operative Care ◦ Monitor until stable 11
MULTIPLE DEFENDANTS Rarely see ONLY anesthesiology defendant (about 1 in 10) Multiple defendants mean multiple insurance companies Non-party Designations 16
MULTIPLE DEFENDANTS Finger-Pointing – the plaintiff’s dream come true Consider early arbitration/mediation among defendants ONLY ◦ Pushback from insurance company The longer it goes, the more it costs 17
MULTIPLE DEFENDANTS “Captain of the Ship” doctrine ◦ Still alive in Colorado Leverage settlement with surgeon Be aware of limitations! 18
Evidence Types & Sources of Evidence Machine Generated Records BP/EKG/Pulse Ox/Capnography Handwritten Chart Notes Audit Trails Other Electronic Sources ◦ Apps 15
DISCOVERY CONSIDERATIONS “Audit Trail” Differences between machine recording and the paper chart Get it FAST! Settlement value may go up when you disclose chart alterations or errors 20
DISCOVERY CONSIDERATIONS Equipment errors ◦ Alarm failure ◦ Metering error ◦ Power loss Demand preservation from ASC or Hospital ASAP 21
Privileges State Specific Concerns ◦ Redactions of other medications for privacy ◦ Experts desire to know all substances in the body 18
TRIAL CONSIDERATIONS Voir Dire: ◦ Jurors will likely have some experience, personal, friend or relative ◦ MUST find out their level of satisfaction, results of the procedure ◦ Squeamish about operations? 23
TRIAL CONSIDERATIONS Voir Dire ◦ Understand the complexity of anesthesia Not “going to sleep” More like “bringing them close to death”, then “bringing them back” Numerous medications, interactions 24
TRIAL CONSIDERATIONS Plaintiffs win only about 2% of trials (Medscape 2015 survey) But 41% settle before trial Of Defendant Anesthesiologists, most said they’d do nothing differently ◦ But 17% said “better documentation” 25
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