Preoperative Consultations and Malpractice Claims

Preoperative assessments are a critical component of any anesthesia procedure. However, these consultations can be difficult to implement due to time constraints and the primary role of the surgeon, which can lead anesthesiologists to skip preoperative consultations or shorten them dramatically. While this can have an adverse effect on a patient’s understanding of the procedure, it can also expose doctors to easily avoidable malpractice claims.  

Malpractice is an area of concern for patients and doctors alike. According to research by patient safety experts at Johns Hopkins, medical error led to 250,000 deaths in 2016 [1]. While most of these deaths were due to disorganized care and fragmented insurance systems, rather than doctor misconduct, most anesthesiologists can expect to be involved in a malpractice suit at some point. These cases rarely result in a verdict against the doctor—a 2015 study by Medscape found that the court sides with the plaintiff in just 2% of malpractice cases [2]. At the same time, these claims are time consuming, with 41% of cases lasting at least three years. During the case, a third of doctors surveyed by Medscape spent at least 40 hours preparing for court and at least 50 hours in the courtroom.  

The American Society of Anesthesiologists states that preoperative assessments should be performed before any anesthesia operation [3]. However, a study by Harihan et al found that 45% of patients who had surgery under anesthesia could not recall meeting an anesthesiologist before the operation [4]. While this is a serious ethical concern, it also points to a common mistake that exposes anesthesiologists to malpractice claims. Indeed, a recent report found that improper management of patients under anesthesia accounted for 32% of anesthesia malpractice claim, making it the most common allegation. The report, which was based on malpractice claims made between 2013 and 2018, also found that within that category, a deficiency in patient assessments was one of the top three factors for filing a claim [5]. Likewise, a study by Posner et al. found that informed consent complaints are disproportionately represented in malpractice claims [6]. Both types of complaints can be mitigated by conducting proper preoperative assessments. 

Shared decision-making has been highlighted in several studies as a useful technique for conducting thorough preoperative assessments. Indeed, a 2017 report pointed to the use of decision aids as a major factor in helping patients understand their anesthesia options [7]. In another study by Posner et al, patients who received a decision aid scored 23% higher on a knowledge test about their options and were 38% more likely to ask questions about the use of anesthesia in their operation [8]. While there is not conclusive evidence that shared decision-making has a direct effect on malpractice claims, Posner does that it will likely reduce claim-related costs by making patients feel included in the anesthesia process. 

Improper patient assessments and lack of informed consent are leading causes of malpractice claims against anesthesiologists. Often, these cases stem from improper or nonexistent preoperative consultations, which can be difficult to implement due to time constraints or disorganized practices. However, implementing patient-centered preoperative consultations using tools such as shared decision-making is effective way for anesthesiologists to mitigate malpractice claims. 

References 

[1] Daniel, Michael. “Study Suggests Medical Errors Now Third Leading Cause of Death in the U.S.” Johns Hopkins Medicine, The Johns Hopkins University, 3 May 2016, www.hopkinsmedicine.org/news/media/releases/study_suggests_medical_errors_now_third_leading_cause_of_death_in_the_us. 

[2] Peckham, Carol. “Medscape Malpractice Report 2015: Why Anesthesiologists Get Sued.” Medscape, WebMD LLC, 22 Jan. 2016, www.medscape.com/features/slideshow/malpractice-report-2015/anesthesiology. 

[3] Fischer, Stephen P. “Development and Effectiveness of an Anesthesia Preoperative Evaluation Clinic in a Teaching Hospital.” Anesthesiology, The American Society of Anesthesiologists, July 1996, anesthesiology.pubs.asahq.org/article.aspx?articleid=2028350. 

[4] Hariharan, Seetharaman. “Ethical Issues in Anesthesia: the Need for a More Practical and Contextual Approach in Teaching.” Journal of Anesthesia, vol. 23, no. 3, 2009, pp. 409–412., doi:10.1007/s00540-009-0776-x. 

[5] Cheney, Christopher. “Preoperative Assessments Key Factor in Anesthesia Malpractice Claims.” HealthLeaders, HealthLeaders Media, 20 Dec. 2019, www.healthleadersmedia.com/clinical-care/preoperative-assessments-key-factor-anesthesia-malpractice-claims. 

[6] Posner, Karen L., et al. “The Role of Informed Consent in Patient Complaints: Reducing Hidden Health System Costs and Improving Patient Engagement through Shared Decision Making.” Journal of Healthcare Risk Management, vol. 35, no. 2, 2015, pp. 38–45., doi:10.1002/jhrm.21200. 

[7] Domino, Karen B, et al. “Improving Patient-Centered Care Delivery in 2017: Introducing Pre-Anesthesia Decision Aids.” ASA Newsletter, The American Society of Anesthesiologists, 1 May 2017, monitor.pubs.asahq.org/article.aspx?articleid=2623172. 

[8] Posner, Karen, et al. “Regional Anesthesia Decision Aids in the Pre-Anesthesia Clinic Improve Patient Engagement and Knowledge.” Anesthesia Quality Institute, American Society of Anesthesiologists, 25 Oct. 2015, www.aqihq.org/ClosedClaimsPDF/click%20here%20for%20pdf_4.pdf.