Informative Discussion of Malpractice Liability

[gregsto]

One of the Law Med Blog posts has sparked a conversation in the comments section of the "Nurses are an equal if not superior choice to administer anesthesia" article which contains some excellent information regarding malpractice liability for anesthesia providers. It starts out a bit contentious but evolves into a meaningful exchange of views and experiences providing insight into how liability is assigned and to whom, the effect local statutes and hospital policies have, and other insights many may not have considered.

Go to:

http://lawmedconsultant.com/1475/nurses-are-an-equal-if-not-superior-choice-to-administer-anesthesia

and scroll down to the comments and be sure to read them all! Feel free to add to them also!!

[JadamR15]

Great conversation! A clash of titans, of sorts! But also fun, spirited and educational.

[jwk]

Great conversation! A clash of titans, of sorts! But also fun, spirited and educational.

Ah, but can you draw any real conclusions from it?

[ccrn_csc]

Ah, but can you draw any real conclusions from it?

What I take from it is -if you want to be an independent practitioner, then be ready for autonomy - the act of making decisions and accepting full responsibility for them. If the scope of practice of CRNA = MDA inside the OR then it should be inside the courtroom also.

JWK, what do you draw from the discussion?

[rbland59]

What I take from it is -if you want to be an independent practitioner, then be ready for autonomy - the act of making decisions and accepting full responsibility for them. If the scope of practice of CRNA = MDA inside the OR then it should be inside the courtroom also.

JWK, what do you draw from the discussion?

Drawing a unbiased conclusion would require independent judgment and freedom from outside ideology ...

[jwk]

What I take from it is -if you want to be an independent practitioner, then be ready for autonomy - the act of making decisions and accepting full responsibility for them. If the scope of practice of CRNA = MDA inside the OR then it should be inside the courtroom also.

JWK, what do you draw from the discussion?

I think the conclusions are anything but clear cut because there are so many variables to consider. Different organizations defining scope of practice, different states and boards defining scope of practice, different hospitals/groups/practices defining scope of practice..... Then all the different modes of employment - contractor, employee of hospital or group, etc. Is it an all CRNA group vs CRNA/MD/AA group? Would a CRNA working as an employee for an all CRNA group bring liability onto his CRNA employer? Can an anesthesiologist serve as an expert witness against a CRNA - or vice versa?

I think regardless of autonomy or lack thereof, an individual is still responsible for their own actions.

As another side note - for those who have never been involved with medical malpractice attorneys...You would be amazed at the amount of medical knowledge they possess as well as the size and quality of their medical libraries in their offices. They may not be medical pracitioners, but they understand far more than the average layperson.

Hope that's unbiased enough for you rbland59. Does everything have to devolve into a pissing match?

[gregsto]

What I take from it is -if you want to be an independent practitioner, then be ready for autonomy - the act of making decisions and accepting full responsibility for them. If the scope of practice of CRNA = MDA inside the OR then it should be inside the courtroom also.

JWK, what do you draw from the discussion?

In the comments sajbarnes expresses frustration with CRNA defendants who try and use a 'I'm just a nurse, not a doctor' defense when sued, pointing the finger at the anesthesiologist. LawMed points out that while CRNAs can TRY to use that defense it is not grounded in law. CRNAs, regardless of whether they are supervised, directed, or independent are responsible for their own acts, and liable for their own negligence, under the law. NO ONE is EVER liable for the negligent acts of another in anesthesia except for employers under vicarious liability. Other providers however do NOT assume liability by virtue of supervision for CRNA negligence. The single exception is the surgeon in the handful if states which still follow the 'captain of the ship' doctrine, which says that the surgeon is liable for the acts of everyone in the operating room once he assumes control of it (California and Penn still have COTS on the books in some form).

So CRNAs DO stand alone in the courtroom when defending their actions. It is not a defense to say that an MDA 'told me to push 2 grams of potassium'. 'Just following orders' does not work and violates the standard of care when you follow an order you know or should have known was incorrect or dangerous to the patient.

[gregsto]

I think regardless of autonomy or lack thereof, an individual is still responsible for their own actions.

THAT is the long and short of it.

[anesthesiaMD]

Interesting topic. Trial lawyers ask two very simple questions: Who has money and how easy (or hard) will it be for me to get that money. They do not care whose fault it was or who was right or wrong. It's not personal; it's about money. In the initial stages of a lawsuit, a trial lawyer will cast a wide net and name as many people as possible and go after what he/she thinks will be the easiest targets. CRNA's and MD's who work together can be held accountable for the others actions ( a CRNA can get burned by a MD's negligence and vice versa). I'm not saying this is always fair, but juries and courtrooms are not always about fair. You just have to have the most persuasive arguement.

[rbland59]

As another side note - for those who have never been involved with medical malpractice attorneys...You would be amazed at the amount of medical knowledge they possess as well as the size and quality of their medical libraries in their offices. They may not be medical pracitioners, but they understand far more than the average layperson.

Hope that's unbiased enough for you rbland59. Does everything have to devolve into a pissing match?

:mmph: On second look my comment was more "pissy" than funny - sorry - mea culpa! :hurt:

[JadamR15]

I think the conclusions are anything but clear cut because there are so many variables to consider. Different organizations defining scope of practice, different states and boards defining scope of practice, different hospitals/groups/practices defining scope of practice..... Then all the different modes of employment - contractor, employee of hospital or group, etc. Is it an all CRNA group vs CRNA/MD/AA group? Would a CRNA working as an employee for an all CRNA group bring liability onto his CRNA employer? Can an anesthesiologist serve as an expert witness against a CRNA - or vice versa?

I think regardless of autonomy or lack thereof, an individual is still responsible for their own actions.

As another side note - for those who have never been involved with medical malpractice attorneys...You would be amazed at the amount of medical knowledge they possess as well as the size and quality of their medical libraries in their offices. They may not be medical pracitioners, but they understand far more than the average layperson.


All good points.

[MmacFN]

Exactly.

There has been much case law showing CRNAs in ACts who were sued and the MDA dropped and MDAs sued and the CRNA dropped from the case. Of course all were named as is the hospital. However, It is my personal opinion that by the very nature of an AA license the MDA would NEVER be dropped regardless of circumstances.

[gregsto]

Exactly.

There has been much case law showing CRNAs in ACts who were sued and the MDA dropped and MDAs sued and the CRNA dropped from the case. Of course all were named as is the hospital. However, It is my personal opinion that by the very nature of an AA license the MDA would NEVER be dropped regardless of circumstances.

That's right. By the very nature of the relationship created of an MDA and AA, the MDA is ALWAYS on the hook for the negligent acts of the AA. In some states an AA is not even licensed, but rather may practice by virtue of their education after the MDA submits a practice agreement to supervise the AA. I was amazed that this was the case and only found out from some WI CRNAs at a meeting i lectured at recently...they were telling me about recent legislation that passed in their state which required AAs to be licensed for the first time...yet AAs have practiced there for 20 years!! But in ALL states where they practice the AA practices under the license of the MDA. This is NEVER the case with a CRNA.

I know of NO case where an AA stood alone as a defendant.

[stanman1968]

WEll in fairness there are so few it could be pretty hard to find, but I agree with the premise.

[gregsto]

WEll in fairness there are so few it could be pretty hard to find, but I agree with the premise.

Actually there ARE plenty of cases where an AA and MDA have been sued for medical malpractice, but none where an AA was found liable sans MDA.

[m_playman]

That's right. By the very nature of the relationship created of an MDA and AA, the MDA is ALWAYS on the hook for the negligent acts of the AA. In some states an AA is not even licensed, but rather may practice by virtue of their education after the MDA submits a practice agreement to supervise the AA. I was amazed that this was the case and only found out from some WI CRNAs at a meeting i lectured at recently...they were telling me about recent legislation that passed in their state which required AAs to be licensed for the first time...yet AAs have practiced there for 20 years!! But in ALL states where they practice the AA practices under the license of the MDA. This is NEVER the case with a CRNA.



I know of NO case where an AA stood alone as a defendant.

Just to clarify....this was introduced, but never made it to the floor. It is gaining support again and likely to be introduced again this spring. In addition to licensure, mixed in the proposed legislation is funding for an AA program in WI. There are 16 AA's in WI in 2 facilities between Madison and La Crosse. There may be one AA starting in Milwaukee (spouse of a MDA; guess they came as a package deal).

[gregsto]

Just to clarify....this was introduced, but never made it to the floor. It is gaining support again and likely to be introduced again this spring. In addition to licensure, mixed in the proposed legislation is funding for an AA program in WI. There are 16 AA's in WI in 2 facilities between Madison and La Crosse. There may be one AA starting in Milwaukee (spouse of a MDA; guess they came as a package deal).

Thanks for that update!!! I also recall that there was some fascinating language in the proposed statute that predicated the MDA to AA supervision ratio on whatever the medicare supervision ratio was. (From the WISA) First time I have ever seen state licensing board base clinical practice on an insurance company....if there ever was any doubt that $$$ and not patient safety is the basis for ASA MDA supervision demands, here it is.

Keep us posted.