Mr. D, aged 46 years, was a nurse anesthetist who worked for an anesthesiology services practice. The practice had contracts with various area hospitals and would send anesthetists as needed. Each week, Mr. D would get an assignment sheet informing him of what procedures he would be providing anesthesia for, and at which hospital. 


He had been working for this particular company for close to a decade and liked the diversity of working in different hospitals and with different physicians. His workweek tended to vary, with some weeks being far busier than others. 


On this particular Monday, Mr. D only had one procedure on his schedule for the day. The patient, Mrs. H, was a 62-year-old woman who was suffering from left frontal headaches and pain behind the left eye. She was scheduled for a temporal artery biopsy. Prior to the procedure, Mr. D introduced himself to Mrs. H and spoke briefly with the surgeon, Dr. F, with whom he had worked once or twice in the past. 


The procedure began smoothly. Mrs. H was anesthetized and the surgeon began the procedure while Mr. D monitored the patient’s breathing. Soon, however, the patient exhibited signs of respiratory difficulties and oxygen desaturation. Mr. D administered oxygen to solve the problems, which it did. A few moments later the surgeon activated an electrocautery device, and a flash fire broke out.


The oxygen trapped under the surgical drapes ignited, and the drapes burst into flame. Pandemonium ensued in the operating room (OR) as surgical staff rushed around grabbing for fire extinguishers and trying to free the patient from the burning cloth. Shortly thereafter, the sprinkler system engaged, and while water was showering the OR the hospital’s alarm went off.


After the fire was extinguished, the OR team stabilized the patient and assessed the damage. Mrs. H had suffered second-degree burns on her face and chest as well as burns to her larynx, trachea, and lungs. She was in the hospital for several days while recovering from her injuries. When she was released, Mrs. H sought out a plaintiff’s attorney.


“I can’t sleep anymore,” she told the attorney. “I have horrible nightmares, and I still have trouble swallowing. My voice is much lower and hoarser than it was before.”


The attorney nodded sympathetically as he took notes. 


“Look at me!” Mrs. H continued. “I have scars on my face and my chest. I get short of breath. I feel so ugly now. I want to sue everyone involved.”


The attorney examined her medical records and sent 
Mrs. H for an additional exam with another physician and for a workup with a psychologist. After reviewing the results of the exams, he initiated a lawsuit against Mr. D, the surgeon, and the hospital, citing negligence. The suit alleged that the hospital and its attending medical personnel created a hazardous environment by neglecting to properly communicate the use of oxygen to all surgical staff and to minimize oxygen buildup beneath the surgical drapes. The suit also alleged that the hospital was negligent for failing to properly train staff in fire-prevention practices. 


Mr. D, notified of the lawsuit, sought counsel from the attorney assigned by his insurance company. 


“I feel really bad about this,” Mr. D told the attorney. “It was a horrible accident. I have trouble sleeping at night.”


“Yes,” said the attorney. “But we must stress that it was an accident. And accidents do, unfortunately, happen. Perhaps the surgeon should have been more careful when using the cauterizing device.”


“I don’t want to blame a colleague,” responded Mr. D.


“Well,” said the attorney, “you can be reasonably sure that they will be pointing the finger at you.”


The case inched toward trial. Attempts at settling the case proved futile as Mrs. H really wanted her day in court. Finally that day came.


Mr. D and the surgeon, their attorneys, and the representatives for the hospital all sat at the defense table and listened as the plaintiff’s attorney made an impassioned opening argument. Mr. D, who had been living with a feeling of guilt about the incident since it happened, sunk lower in his seat. 


During the course of the trial, the plaintiff’s attorney introduced various experts to testify about the plaintiff’s injuries, her emotional trauma, and the fact that it was improper practice for the anesthesiologist not to convey the use of oxygen to the surgeon during a procedure. 


Then it was the defense’s turn to present its case. Each party retained separate attorneys. On advice from his attorney, 
Mr. D did not take the stand. “The question would definitely come up as to whether you had conveyed the information about the oxygen, and why not” explained the attorney. “It’s better if we try to avoid it.”


The surgeon, however, took the stand and testified that he would never have used the electrocautery device had he known that Mr. D was administering oxygen. The hospital representatives testified that all of its employees were trained in fire safety, and had behaved appropriately. 


The case went to the jury, who deliberated for several hours before coming back with a verdict. The jury found Mr. D liable for $750,000 in damages, but it found no fault on the part of the surgeon or the hospital.


Legal background


In cases with co-defendants, such as this one, it is quite common for one or more defendants to blame another (or each other). For this reason, it is generally recommended that even if two individuals are being sued in the same case, that they retain separate defense counsel rather than share an attorney. In this case, the surgeon’s attorney probably made the decision to put him on the stand knowing that he would testify that Mr. D had not informed him of the use of oxygen, and thereby absolving the surgeon of guilt (while implicating Mr. D). Mr. D’s attorney was right that it isn’t generally a good idea to put someone on the stand who will be faced with a question he can’t (or shouldn’t) answer. Sometimes not taking the stand, in the eyes of the jury, is tantamount to an admission of guilt. 


Protecting yourself


Unfortunately, Mr. D was careless. And in this case, his carelessness had disastrous consequences. Mr. D neglected to communicate with the surgeon and keep the surgeon apprised of what Mr. D was doing. 


Good communication is one of the best ways to avoid being a party to a lawsuit. Whether it is talking with your patient or a colleague, when making referrals, or even in chart notes (an important form of medical communication), having clear, direct, and open lines of communication can prevent unfortunate results. Mrs. H would have never been injured had Mr. D simply notified the surgeon of the oxygen use. No amount of testimony could make up for those few missing words during the procedure. Communication is key to better patient outcomes and to protecting yourself.

Ann Latner, JD, is a former criminal defense attorney currently working as a freelance medical writer in Port Washington, N.Y.