Disability or misconduct?

In a recent case involving an anesthesiologist in Kentucky, brought under the Kentucky Civil Rights Act, the federal court had occasion to consider the effect of the Americans with Disabilities Act on anesthesia. According to the case, the hospital hired an anesthesiologist under a 3-year contract, which provided that he could be terminated without cause on 120 days' notice. Approximately a year and a half later, the hospital's vice president of Professional Affairs suspended the anesthesiologist because the hospital's operating room manager had filed a complaint alleging that the anesthesiologist had physically intimidated her. Four days later, the vice president notified the anesthesiologist that the suspension was being lifted but that his employment was being terminated on 120 days' notice because of reports that he was sleeping while administering anesthetics during surgical procedures.

The anesthesiologist claimed that the reports were incorrect and that he only appeared to be snoring due to problems that caused him to clear his sinuses often. Subsequently, he was presented with evidence that 3 doctors and a nurse had filed written complaints to the effect that he had slept during 4 surgical procedures and appeared to be "slack jawed" and "snoring."

At this point the anesthesiologist notified the hospital, for the first time, that he was suffering from chronic sleep deprivation caused by sleep apnea and that he was going to seek medical consultation. The anesthesiologist asked that he be allowed to perform other tasks while he was seeking medical consultation. While the case does not indicate this, the anesthesiologist may have been seeking reasonable accommodations, assured by the Americans with Disabilities Act, for his alleged disability. The hospital rejected his request and suspended him immediately.

The anesthesiologist then underwent a sleep study that revealed that he suffered from severe chronic sleep deprivation secondary to obstructive sleep apnea. A continuous positive airway pressure nasal mask was prescribed, and the specialist treating him reported that "we feel like his ... problem with sleepiness has been eliminated" and that the anesthesiologist would not have any problem continuing his employment duties as long as he used the mask.

The anesthesiologist sued the hospital under the Kentucky Civil Rights Act and the Family and Medical Leave Act. The language of the Kentucky Civil Rights Act mirrored the language of the Americans with Disabilities Act, and, therefore, both the federal district court and the appeals court looked to federal law to determine the anesthesiologist's rights.

Both the Kentucky Civil Rights Act and the Americans with Disabilities Act forbid discrimination on the basis of disability. Thus, the issue before both the district court and the appeals court was whether the hospital fired the anesthesiologist because of his disability. The anesthesiologist argued that he was fired for conduct that was "causally related" to his disability. That is, he suffered from sleep apnea, which resulted in sleep deprivation and caused him to fall asleep in the middle of operations. Being fired for falling asleep was tantamount to being fired for a disability, because falling asleep was "causally related" to his medical condition. Both the district court and the appellate court rejected this argument. The courts held that there was a difference between discharging someone for unacceptable misconduct and discharging someone because of his disability.

The anesthesiologist who suffered from chronic sleep deprivation may well have been so tired that he could not stay awake. But nothing compelled him to administer anesthesia during surgical procedures when he knew he was sleep deprived and could not stay awake. Thus, ruled the courts, the hospital was justified in firing an anesthesiologist who insisted on administering anesthesia when he was so sleep deprived that he could not stay awake. He was fired for endangering patients, not for being sleep deprived. (Brohm v J. H. Properties, Inc., 149 F 3d 517 (6th Circuit)).

The Brohm case has the advantage of being clear, of making a distinction between discharging someone for misconduct and discharging someone because of a disability, and of having a result that seems to comport with common sense. Disability or not, would any patient want to be under the care of an anesthesia provider who could doze off in the middle of an operation? This is not, however, the final word about anesthesia and the Americans with Disabilities Act.