Vicarious liability for anesthesiologists.

Vicarious liability for anesthesiologists In the recent effort to convince the Health Care Financing Administration (now known as Centers for Medicare and Medicaid Services) to let state legislators rather than a federal bureaucracy determine whether nurse anesthetists had to be supervised, anesthesiologists tried to obscure the fact that any administrator of anesthesia can sometimes have an untoward result, with or without negligence. No matter how hard we try and no matter how many systems we put into effect, at some point anesthesia is administered by humans and all humans, even anesthesiologists, make mistakes. When mistakes happen in anesthesia they can happen with tragic results no matter who the administrator is. In all the recent flurry of activity over supervision, the policy makers often seem unaware that anesthesiologists make mistakes, too. How can anesthesiologists suggest supervision of nurse anesthetists as a cure-all when anesthesiologists make the same mistakes? If they promote the anesthesia care team as preferable to nurse anesthetists working directly with surgeons, why aren’t they promoting it over anesthesiologists working directly with surgeons? Toogood v Rogal Consider Toogood v Rogal, 764 A. 2d 552 (2000, Penn.). Kevin Toogood was involved in automobile accidents in 1989 and 1992, which left him in intense pain with migraine headaches and a ringing in his ears. To treat his jaw pain, he saw Dr Rogal, a dentist at The Pain Center, a multidisciplinary medical center providing various forms of pain management. In December 1993 he received a paravertebral nerve block injection from an anesthesiologist at The Pain Center. After receiving the injection Mr Toogood felt pain in his chest. He drove himself home, but he later checked into a hospital complaining of breathing difficulties. There, he was diagnosed with a collapsed lung. He recovered fully and because he did not suffer any damages from missing work (he had been out of work due to the injury, anyway), his lawsuit claimed no economic loss. He nonetheless filed suit against the dentist who had treated him and the anesthesiologist who had given him the nerve block, which he alleged caused the collapsed lung. What, you may ask, is the connection between this case and nurse anesthesia? Well, basically, none. (Except that the anesthesiologist’s son happened to be a nurse anesthetist.) This case became interesting when the anesthesiologist died before the case could come to trial. The courts have developed a number of restrictions on evidence they will allow a party to present. These rules are intended to assure that evidence introduced at trial is reliable and truthful. What problems arise when a key party has died? One of the basics of the Anglo-American jury system is the assumption that 12 members of the jury will be able to determine whether someone is telling the truth by judging the person’s conduct on the witness stand. Is the witness sincere as the witness tells his or her story? How well does the witness react to challenges by a hostile attorney? When a person is deceased, obviously, the jury cannot judge the manner, the ease, or unease with which the witness gives testimony. Normally, the death of a witness does not have a major impact on a trial. However, if the deceased is one of the parties to the litigation, the deceased’s testimony cannot be easily replaced. States have developed a variety of methods for dealing with this problem of unfairness. In Massachusetts, for example, when a party has died, statements made by the party may be introduced in evidence even though they would normally be excluded as “hearsay” (233 Mass. Gen. Laws §65). In Pennsylvania where the Toogood case arose, the “dead man’s statute” takes an entirely different approach. The Pennsylvania dead man’s statute provides that if a person who is party to a “thing or contract in action” has died, the other party to the thing or contract in action may not testify unless the deceased was one of several parties and the action is continuing against all of the parties. Mr Toogood had brought suit against the anesthesiologist, The L E G A L B R I E F S