Anesthesia providers can provide good treatment within the standard of care, but remain liable for a patient's injuries and damages. A hidden and often overlooked danger is treating informed consent as little more than having patients sign a stack of papers just before going into the OR. This is the case of a regional block gone awry.

Regional rather than general
In 2004, a 63-year-old obese male presented to a hospital for same-day arthroscopic lateral meniscus reconstruction of the left knee. He had a history of degenerative joint disease in both knees and prior knee surgeries, including left-knee menisectomies in 1995 and 1997, a left lateral release of the left knee in 1988, and arthroscopic debridement of the left and right knees in 1998. All of his previous surgeries were done under general anesthesia.

In part because of his history of hypertension, hypothyroidism, non-insulin-dependent diabetes and asthma, the surgeon and anesthesiologist planned to use regional anesthesia — a lumbar plexus block and a sciatic block — rather than general anesthesia. The patient signed a consent that noted the potential risk for nerve injury.

The anesthesia team encountered some difficulty performing the blocks in the surgery unit's holding area. Apparently, the anesthesiologist needed a colleague to help him complete the second block, but the patient's chart was sketchy on details. The patient said he screamed over extreme pain in his legs and asked that the procedure be stopped.

The anesthesia team, however, continued. The patient testified that he felt like his legs were going to explode. The defendants denied this. They said they would have noted it in the chart if the patient screamed and asked that the procedure be stopped.

After the block was in place, the patient showed signs of the local anesthetic infiltrating the epidural space and hypotension, which the anesthesiologist treated. In light of the spread of the local anesthetic and concerns about the patient's respiration, the anesthesiologist intubated the patient. The surgeon completed the procedure under general anesthesia without further complication.

After surgery, the patient felt numbness in both legs. After a few days, the right leg returned to normal but the numbness in the left leg continued all the way down to the foot. The patient felt a severe burning pain in the ball and toes of his left foot, which made it difficult to walk and sleep. He had difficulty urinating and emptying his bladder. He also complained of numbness in his scrotum and decreased sensation in his penis.

The case heads to court
During the trial, the evidence established that nerve injury is a risk of regional anesthesia and not necessarily indicative of negligent or careless conduct. The patient said in his deposition that he knew that "significant complications" could arise under even the best circumstances.

The defense argued that the patient was a good candidate for regional anesthesia due to his obesity, diabetes, advanced age, male gender and pre-existing neurological deficits. The defendants argued that the blocks would have provided excellent pain control and reduced the need for post-operative narcotic medications, which can lead to significant respiratory suppression, particularly in a morbidly obese patient.

Defense experts testified that the cause of the patient's injury was impossible to determine. They referred to case reports of persistent neurological deficits after seemingly uneventful nerve blocks performed properly by experienced personnel. The experts saw nothing in the medical record suggesting improper technique in the performance of the block or departure from the standard of care.

The patient's experts, meanwhile, told the jury that knee surgery can be performed under general anesthesia, central neuraxial blockade (epidural and spinal anesthesia), peripheral nerve blockade (posterior lumbar plexus and sciatic nerve blocks) or local anesthesia (local infiltration for arthroscopic knee surgery) combined with sedation.

One of the patient's experts said that minor nerve damage can occur and can be cause for concern, although it's usually temporary and resolves with time. Severe and permanent nerve damage that can be attributed directly to the performance of regional anesthesia is extremely uncommon. The expert believed that the anesthesiologist broke a "golden rule" when she continued the block and procedure after the patient screamed in pain.

The verdict
The jury found that the anesthesiologist met the standard of care in administering the blocks. However, they unanimously agreed after only 80 minutes of deliberation that the defendant was liable for battery (causing unauthorized harm) because of the lack of informed consent regarding the risks and alternatives to regional anesthesia. The jury awarded the patient $1 million.

The evidence that swayed the jury? A list of questions that the patient and his wife reviewed with the surgeon and anesthesiologist. The jury believed that the patient was hesitant to proceed with regional anesthesia out of fear of the complications that he eventually suffered.

Not surprisingly, the majority of malpractice suits arise from communication errors, not competency errors. Patients' most common complaint is a lack of information provided by the physicians.

Lessons learned
Informed consent for anesthesia care is more involved than getting patients to sign some papers before going into the OR. In most jurisdictions, to secure appropriate informed consent the anesthesia provider must give the patient all material and information necessary to determine whether to proceed with the surgical procedure, including anesthesia, or to remain in the present condition.

Typically this means that both the surgeon and the anesthesiologist must ensure that the patient understands the nature of the procedure, its risks and alternatives. In this case, while the consent form was appropriate, the jury believed that the surgeon and the anesthesiologist pressured the patient into agreeing to a nerve block. And while she advised the patient of the potential for nerve injury, the anesthesiologist told the patient that any injury would be temporary. The jury apparently believed the patient when he said that, had he known of the potential for significant permanent neurological injury, he would have chosen general anesthesia, as he had done in the past.

Improvements in regional anesthesia techniques are giving surgeons and anesthesia providers more choices for perioperative pain management. Regional blocks are becoming more popular, especially among orthopedic surgeons who may pressure anesthesia providers to use them. As a result, the anesthesia provider needs to make sure that each patient is properly informed about the various techniques and their risks, since they're the ones exposed to liability for any injuries that relate to the anesthesia.