Outsourcing services such as anesthesia doesn't necessarily limit your facility's liability in malpractice cases. Many courts will determine whether the patient had reason to believe that a contracted provider was an employee of the facility. If the patient thought so, your facility can be just as liable when an untoward event occurs.

Consent didn't mention anesthesia
A 59-year-old man with a history of chronic obstructive pulmonary disease (COPD), coronary artery disease, ischemic cardiomyopathy, congestive heart failure and diabetes suffered from a frozen shoulder and began 3 months of cortisone injections. The conservative treatment didn't help, so his orthopedic surgeon recommended a shoulder manipulation with an interscalene regional block.

The surgical consent the man signed didn't specify regional or general anesthesia. The surgeon said that he didn't mention anesthesia in his consent forms since it's not his area of expertise, but he told the man that he preferred regional blocks to general.

On the day of surgery, the man met the anesthesiologist, part of a contracted anesthesia group, for the first time. Both the anesthesiologist and the group had their own malpractice insurance. The anesthesiologist told the man that he planned to administer general anesthesia. "My cardiologist said no general anesthesia," the man told the anesthesiologist. Although this didn't jibe with the anesthesiologist's understanding of the medical clearance, he changed the anesthesia plan to an interscalene block. Since the anesthesia consent form mentioned both regional and general, the anesthesiologist thought the man was cleared for both and testified that he'd discussed both forms with the patient. He said if the block didn't work, he would administer just enough general anesthesia to complete the 1-minute procedure.

Phrenic nerve paralysis
Just before the procedure, the anesthesiologist administered the interscalene block. After 15 or 20 minutes, the patient became restless and short of breath, so the anesthesiologist sedated and intubated him to protect the airway. Once the patient was stabilized, the anesthesiologist and surgeon agreed that it was safe to proceed with the procedure under general anesthesia. The manipulation went well, but due to breathing difficulties the anesthesiologist kept the patient intubated following surgery. In PACU, the patient went into asystole. The anesthesiologist performed CPR and the plaintiff recovered. A few hours later, the patient was extubated. He was discharged the next day.

At trial, the patient's wife testified that the anesthesiologist told her that he "missed his mark." The anesthesiologist denied saying this. He said he might have told the patient's wife that sometimes an interscalene block becomes an epidural and can lead to temporary paralysis of the phrenic nerve.

At home, the patient's breathing problems continued. He saw a pulmonary specialist, who prescribed electromyographic studies, which showed that the patient had suffered phrenic nerve paralysis.

A close call in court
The patient sued the surgeon and the facility, but not the anesthesiologist. He claimed that the administration of the interscalene block caused his phrenic nerve to be permanently damaged. He also claimed that he suffered shock and acidosis; permanent right hemi-diaphragm paralysis; severe shortness of breath that required him to sleep sitting upright; severe pain and limitation of his right arm and shoulder; injuries to the chest, shoulder and arm, and headaches.

The surgeon told the court that it wasn't his duty to choose the anesthesia. He was dropped from the case. At trial, the jury was instructed that if they found that the patient believed the anesthesiologist worked for the facility, then the facility would be liable for the anesthesiologist's actions despite the fact that he wasn't its employee.

That's exactly what happened. The jury concluded that the anesthesiologist was the agent of the facility, which in turn became liable for the anesthesiologist's conduct. Fortunately, the facility won the case, but it could have avoided going to trial in the first place.

The jury concluded that the block temporarily paralyzed the phrenic nerve, as the anesthesiologist said it might, and that the patient didn't suffer any permanent residual effects relative to the block or the administration of general anesthesia. The court linked the anesthesia provider and the facility, but not the surgeon, because the patient had a relationship with the surgeon before admission for surgery. As a result, the facility was exposed to the same liability as the anesthesiologist.

To reduce your risk of exposure for vicarious liability, educate patients that contracted providers working in your facility aren't your employees. When practical, have the patient meet with someone from the contracted anesthesia group before admission and let the patient select or agree to the individual providing the anesthesia. This makes it clear that the facility doesn't employ the anesthesia providers.

Alternatively, you can require contracted anesthesia providers to wear nametags and ask them to introduce themselves to patients as employees of the anesthesia group, not of the facility. You can also include this information in the consent forms and place placards in holding areas to identify the group providing anesthesia services.