American Society of Regional Anesthesia and Pain Medicine August 2016 - 25
Legal Advice: Consulting the Expert
Gary Samms, Esq
Obermayer, Rebmann, Maxwell and Hippel LLP
Attorneys at Law
Philadelphia, Pennsylvania
ASSUMING THE PATIENT HAS NOT FILED A LAWSUIT AND
GIVEN THAT NERVE INJURY MAY RESOLVE OVER A YEAR
LATER, HOW OFTEN SHOULD THE ANESTHESIOLOGIST
PROVIDE FOLLOW UP AND WHAT IS APPROPRIATE TO SAY TO
THE PATIENT?
We recommend the patient be advised of the risk of potential
nerve injury and that the provider obtain documented informed
consent prior to the procedure. Patients who are prepared for
the potential complication are less likely to take legal action
prior to the resolution period.
It is wise to remain aware of the patient's situation, ensure
follow-up, and ask him or her to keep in touch with you as
needed. Do not constantly track patients down. Unfortunately,
some patients see this as an admission of negligence, guilt,
or wrongdoing and get the wrong impression. We strongly
recommend that you make yourself accessible and answer any
and all questions, specifically in the immediate time following
the procedure.
DO YOU DOCUMENT THE FOLLOW-UP?
When you have follow-up contact with a patient after a
complication or nerve injury after a block, make a concise note
such as, "Spoke with patient about complication from procedure.
Patient improving." This type of short note, where you specifically
mention the complication again, reinforces that the outcome
has nothing to do with poor performance of the actual block.
Always record if the patient is doing better or the complication is
resolving. Do not make lengthy notes pondering potential causes
or the long-term prognoses. Short and sweet is always better.
SHOULD AN ANESTHESIOLOGIST APOLOGIZE FOR A
COMPLICATION OR POOR OUTCOME FROM A PNB?
Apology laws have recently been expanded nationwide but
vary on a state-by-state basis. In most states, indicating that
6.
Perez-Castro R, Patel S, Garavito-Aguilar ZV, et al. Cytotoxicity of local
anesthetics in human neuronal cells. Anesth Analg. 2009;108:997-1007.
7. Whitlock EL, Brenner MJ, Fox IK et al. Ropivacaine-induced peripheral
nerve injection injury in the rodent model. Anesth Analg. 2010;111:214-
220.
you are sorry or expressing empathy is not admissible in
court nor considered an admission against you. I don't like
the term apologize as, again, that implies wrongdoing. I would
encourage any anesthesiologist or any physician to express
empathy and understanding regarding a patient's situation but
stay away from any statement that could be interpreted as an
acknowledgment of fault or wrongdoing.
The new trend in the legal circle seems to be that doctors
should actively reach out and speak with patients or make
apologies; however, it is extremely fact specific. It is always
best to be human and merely express that you are concerned
about the patient's situation, want to do whatever you can to
help resolve it medically, and hope he or she improves as soon
as possible. Any statements regarding the performance of the
procedure are not advisable regardless of apology laws in your
state.
SHOULD A KNOWN COMPLICATION BE REPORTED TO RISK
MANAGEMENT?
This is a difficult question because typically, only unexpected
or poor outcomes with potential legal liability are reported
to risk management. If a complication is known and
accepted, you don't believe any negligence occurred, and
the patient is not left in severe damage, there is no need to
report the complication to risk management. However, if a
totally debilitating injury has occurred, you must advise risk
management so that records can be set aside for the case even
if there is no negligence. Certainly, if a complication is severe
or unexpected, you believe it is a result of negligence, or there
is a likelihood of a claim being made, you must report it. If
there is ever an indication that a patient may pursue a legal
option, you should report it to your group safety officer as well
as your insurance company and the appropriate risk personnel
at your hospital or outpatient facility.
8.
Staff NP, Engelstad J, Klein CJ et al. Post-surgical inflammatory neuropathy.
Brain. 2010;133:2866-2880.
9.
Bigeleisen PE. Nerve puncture and apparent intraneural injection during
ultrasound-guided axillary block does not invariably result in neurologic injury.
Anesthesiology. 2006;105:779-783.
American Society of Regional Anesthesia and Pain Medicine
2016
25
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