Legal Responsibilities for Ambulatory Anesthesia and Surgery
By Herbert W. McGuire
Legal Counsel California Society of Anesthesiologists (CSA)

This article first appeared in the May-June 1996 issue of the CSA Bulletin and is reprinted with permission. It was abstracted for the April 1997 issue of Ambulatory Anesthesia.

All physicians are familiar with the dreaded malpractice claim. But today, malpractice liability is only one source of potential legal responsibility. There are other sources of legal responsibility, especially for anesthesiologists in the ambulatory setting, that are becoming just as much a problem as traditional malpractice. Although we do not want to minimize the importance of carefully monitoring your actions to protect against malpractice claims, we cannot minimize the importance of these other sources of responsibility. In this article, we will first discuss malpractice liability briefly, touching on other sources of liability and legal responsibility for the anesthesiologists in an ambulatory setting, and then suggest practices to manage the risk of liability.
Physicians who have never faced a malpractice risk or a claim against them for some of the other types of liability we will discuss are sometimes reluctant to refer a claim or even legal papers that have been served upon them to their insurer. This reluctance may stem from the embarrassment of admitting that legal action is contemplated against them. I can assure you that insurance carriers are not going to be shocked, regardless of the contents of the claims against you, and it is in your best interest and in your carrier's best interest to get any potential claims to them at the earliest possible date. They are in the business of insuring you, not judging you or grading you. They have retained or have on staff expert legal counsel to provide defense for covered matters. Thus, always take advantage of your insurance coverage, and refer all matters to your carrier at the earliest possible date.
The first area of legal responsibility we will discuss is the area of malpractice liability.

Malpractice Liability

The concept of ambulatory surgery began with the Scottish physician James Nichol in the early 1900s,1 but its real growth in physicians' offices, distinct ambulatory surgery centers and hospitals began in the 1970s. In comparison, the concept of medical malpractice has existed since the time of Hammurabi2 and today, even the most skilled anesthesiologists are subject to allegations of medical malpractice, which may result from causes unrelated to poor training, bad judgment or substandard care.3 Because liability from injury can occur regardless of guilt or innocence, it may be a good exercise to briefly refamiliarize yourself with how malpractice liability arises and how it is determined. Liability is determined by comparing the physician's conduct with what a hypothetical "reasonable physician" would have done in the same circumstances. Since each allegation of medical malpractice is unique, physicians must seek specific legal advice from their insurer and an attorney familiar with the defense of medical malpractice claims.

The law imposes a duty of care on all individuals to act as an ordinary, prudent and reasonable person. Everyone is expected to take precautions against creating an unreasonable risk of harm to other persons. A breach of this duty resulting in harm is negligence and will give rise to responsibility for the injured party's damages. Since physicians have special training, skills and licensure, they are expected to conform to a higher standard of care. The patient must prove actual damages resulting from the acts of the physician. To establish liability, the patient must prove:

Other Legal Ramifications in Ambulatory Surgery

Notwithstanding the similarities to inpatient settings, special needs arise in the care and management of ambulatory surgical patients. The important distinction in the ambulatory setting arises from the legal responsibility vested in the physician and the environmental pressures bearing on the risk management of anesthesia. It is not unusual for the anesthesiologist to struggle with the pressure for a speedy patient discharge and the need for heightened vigilance required when the patient is discharged directly to his or her home. The following is a discussion of the less obvious risks of liability for the surgeon or anesthesiologist practicing in an ambulatory setting with a focus on a risk management approach to patient care. Note that the risks are administrative as well as clinical, and they begin even before the first history and physical are taken.

A. The Best Defe

A good physician-patient relationship can prevent lawsuits because a patient may be more inclined to sue if the physician's attitude is perceived as callous or lacking empathy for the patient, rather than caring and engendering trust. A good rapport with the patient, complete with reassurances allaying the patient's fears and apprehensions, may be the first defense to a charge of medical malpractice.8 With "efficiency" being the keynote issue in many ambulatory settings these days, it seems virtually impossible for an anesthesiologist to have sufficient contact with the patient to establish any kind of rapport. Regardless of these pressures, it is an absolute mistake for an anesthesiologist not to speak up and ensure that systems be established to allow him or her to have all of the presurgical contact with the patient that they feel is reasonably appropriate. Besides establishing the physician-patient relationship, a preoperative interview can reveal conditions that could lead to postoperative complications. Physicians may be sued for malpractice if they have not made themselves aware of such conditions. Thus, regardless of what other people do in other situations, or how much pressure is put upon you, you should resist any pressure that prevents you from making what you feel is necessary presurgical contact with the patient.

B. Liability as a Medico-Administrative Officer

Besides providing individual patient care, an anesthesiologist may serve as the medical director of an ambulatory surgical facility. As director, the anesthesiologist is also responsible for the development or enforcement of policies, protocols and procedures. Negligent performance of these responsibilities can also lead to liability for the physician. Although the ambulatory surgical facility may bear ultimate responsibility, the physician remains exposed to potential legal and financial liability. In Pennsylvania, the chief anesthesiologist in a hospital was held responsible for ensuring that safe and adequate practices were carried out and for directing the anesthesia staff to correct improper procedures. The court held that he was personally liable for negligent acts of a staff anesthesiologist that should have been corrected.9 Physicians serving as medico-administrative officers should make sure that their malpractice insurance policies cover these nonpatient care activities. If they do not, additional coverage should be obtained, or the physician should negotiate for indemnification by the ambulatory surgical facility, which should have adequate insurance coverage.

C. Marketing and Contracting

Promotional materials designed by nonphysicians to attract patients to an ambulatory surgical facility may encourage an expectation of a specific, desirable outcome through incautious or overly optimistic wording. Promotional materials and professional services contracts are usually subject to discovery and admitted as evidence in a malpractice action. The patient's expectation, in turn, may result in legal liability against the physician when the materials obligate the physician to "the highest and best" or "strict" standards of patient care. The exceptionally high standard is one that would not have been otherwise required, particularly when juries are usually warned that a physician does not guarantee a favorable result of his or her medical treatment.10 To guard against such consequences, physicians must read the language describing their care in seemingly tangential contexts and closely monitor materials disseminated to the public.

D. Record Keeping

A medical record that is accurate, complete and legible is important. The objectivity and credibility of an anesthesiologist is easily attacked when evidence of his or her conduct is only verbal. Medical records in ambulatory surgeries often include only an anesthesia report and a postanesthetic recovery record, and omit discharge notes and patient reactions to medications and even the surgery itself. Liability may often rest on the paucity of documentation.11

E. Selection of Procedures

External standards often limit the procedures that may appropriately be undertaken in an ambulatory surgery facility to those approved by the governing body upon the recommendation of qualified medical personnel.12 Any list of approved procedures should be reviewed periodically by the same multidisciplinary team of qualified medical personnel that initially established it. Once a list of approved procedures is established, it should be strictly followed despite pressures that might be brought to bear for an exception. By allowing an unapproved procedure to be performed, an aggrieved patient may argue that the harm occurred because the facility (and an anesthesiologist serving as medical director) violated its own standards.

F. Selection of the Patient

Patient selection requires careful, in-depth evaluation of every patient, including a thorough medical history. The history and physical examination and preoperative studies must be appropriate to the procedure and patient and must be documented in the patient's medical record before surgery and anesthesia.13 However, abstract medical criteria alone should not govern. For example, although a certain amount of apprehension is common, patients who strongly object to their procedure being performed in an ambulatory surgical setting should be considered poor candidates. Either the surgeon or the anesthesiologist must evaluate the patient immediately before surgery to assess the risk of the anesthesia relative to the surgical procedure to be performed.14 Responsibility for this immediate preoperative evaluation typically falls on the anesthesiologist, because the operating surgeon is frequently occupied. This immediate preoperative evaluation should be regarded as an integral part of the patient selection process, rather than a last-minute look. The frequent pressures to hurriedly perform this final evaluation result from nonmedical reasons such as not disrupting the smooth operation of the facility, ameliorating the patient's anxieties or even maintaining the schedule of the surgical room. Procedures for patients who do not pass this last stage of patient selection screening should be canceled to avoid the risk of unsafe procedures or a bad outcome.

G. Denying Access Ñ Credentialing

Generally, a physician is not responsible for the selection of other physicians, except as a member of an ambulatory surgical facility's medical staff or as a medico-administrative officer. Anesthesiologists can be denied privileges in the ambulatory surgical facility when there is a genuine concern for patient safety based on serious questions about competence, judgment or ability to work with the surgical team. When an anesthesiologist's application is denied, careful documentation of the justifications for the decision can guard against a possible suit alleging an illegal boycott, an unlawful restraint of trade or unfair competition. Exclusive contracts for anesthesia services will normally be enforced in California (and most other states), but there have been instances when the real purpose of an exclusive contract was to exclude another physician or other physicians, an anesthesiologist or other specialist. While these situations are few, when they do occur, the courts have dismissed the exclusive contract as a sham and have awarded substantial damages. Many of our members may recall the Oltz case from Montana, which has been discussed at length in these [CSA] Newsletters.

H. Liability for Nurse Anesthetists

Anesthesiologists may be vicariously liable for the performance of nurses, assistants and others whom they employ, direct and control based on a legal doctrine known as respondeat superior. A physician employer is legally responsible for the negligence of employees when the employees are acting within the scope of employment and when the employer controls the manner and means of the employee's performance. Under the legal doctrine of "agency," a court may even impute liability to a physician for a supervised nonemployee's actions. As the "principal," the supervising physician may be legally responsible for the negligence of his or her nurse or other nonphysician "agents" within the scope of the delegated medical task. This liability applies particularly to surgeons and anesthesiologists who "medically direct" nurses or assistants. Although surgeons are generally in the room at the same time as their employees or agents, the medically directing anesthesiologist may not be in the operating room at all times and may, in fact, be medically directing several procedures simultaneously. Even when he or she does not employ the nurse anesthetist or other medically directed individual, the anesthesiologist may be liable for a bad outcome under one of these legal theories.
Other sources of responsibility for the acts of others, particularly nurse anesthetists, are defined in statutes. Each jurisdiction often has its own law describing the scope of practice of nonphysician medical personnel. If, for example, these laws require the nurse anesthetist to be legally "supervised" by a physician, or to act under "the orders of" a physician (California), and if the anesthesiologist has undertaken sufficient authority, he or she may have assumed that responsibility and liability.
The "borrowed servant" doctrine is an exception to the general rule that the negligence of an employee is imputed to the employer. Facilities have often requested anesthesiologists to reimburse them for the cost of hospital employment of nurse anesthetists medically directed by anesthesiologists. If this arrangement results in the nurse anesthetist being loaned to the anesthesiologist, the "borrowed servant" can in effect become an employee of the anesthesiologist to whom he or she is loaned, with the resulting transfer of legal responsibility. The overriding question is who had the right to control the actions of the "borrowed servant."

Conclusion

Trial attorneys will continue to expand the horizons of potential claims against ambulatory surgical facilities and the physicians who work in them. Anesthesiologists don't often think in terms of conducting an annual legal audit, but they should, especially when they assume more and more administrative duties in a surgical center. Legal audits should be performed at the expense of the center, but the anesthesiologist should be the instigator. And, even if these audits are performed, the anesthesiologist should be in regular contact with the insurer, requesting clarification of coverage and risk issues, especially if he or she is supervising other personnel in the center. Given the stress that legal proceedings can create, an annual legal checkup may make the results of your annual medical checkup a lot better.

Urgent Request from CMA Regarding Onerous Clauses in Managed Care Contracts

To support its legislative agenda, the California Medical Association (CMA) is collecting copies of onerous clauses in managed care contracts. The CMA would like copies of actual contract language that physicians find objectionable but felt compelled to accept because of the importance of the contracts to the physician's practice. Examples of such clauses may include:
¥ Termination without cause provisions
¥ Hold-harmless clauses
¥ Covenants not to compete
¥ "Gag" clauses
¥ "Tying" clauses (clauses that require a physician to participate in more than one of the managed care organization's product lines, even if the physician doesn't want to participate)
¥ "most favored nations" clauses (clauses that require the physician to give the managed care organization the physician's "best price")
¥ Unfair arbitration clauses, etc.
Please send copies of pages containing the clauses, identifying the name of the managed care organization and the date of the contract to: CMA, P.O. Box 7690, San Francisco, CA 9412-7690, Attention: Aynah Askanas. We are also interested in receiving copies of letters or other documents from managed care organizations memorializing adverse actions taken by them pursuant to onerous contract clauses.

References:

1. Durant GD. Ambulatory surgery center: surviving, thriving into the 1990s, Medical Group Management Journal, March/April 1989, 14. 2. Vevaina JR. Medical malpractice. Legal Aspects of Medical Practice 1989; 17. 3. Keats, AS. Role of anesthesia in surgical mortality. In Orkin F, Cooperman L (eds). Complications in Anesthesiology, Philadelphia: Lippincott, 1983:3-13. 4. Waffen v. U.S. Dept. of Health & Human Services,. 799 F. 2d 911, 915 (4th Cir.1986). 5. Weimer v. Hetrick, 309 Md. 536, 525 A.2d 643, 650 (1987). 6. Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911. 7. Purtill v. Hess, 111 Ill.2d 229, 247, 489 N.E.2d 867 (1986). 8. Paxton. Why doctors get sued. Med Econ., 1980; April 18, p.50. 9. Schneider v. Albert Einstein Medical Center, 390 A.2d 1271. 10. Miller v. Kennedy, 91 Wash.2d 155, 588 P.2d 734 (1978). 11. Schroder J, Identifying Medical Malpractice, 1990. 12. Accreditation Association for Ambulatory Health Care, Inc. Accreditation Handbook for Ambulatory Health Care, 1992, Surgical Services ¤ A. 13. Joint Commission on Accreditation of Healthcare Organizations, Accreditation Manual for Ambulatory Health Care, 1992, SA. 1.17.2 14. Joint Commission on Accreditation of Healthcare Organizations, Accreditation Manual for Ambulatory Health Care, 1992, Id at S.A. 1.13.2.