This Just In

Anesthesia Awareness: Your New Malpractice Risk?
Warnings About Dangers of Waking During Surgery Could Trigger Malpractice Suits
The new buzzword in medical malpractice is anesthesia awareness. Six-figure jury verdicts are slowly beginning to mount in favor of patients who claim that they became conscious during surgery but were unable to move or call out. Some recent examples:

• A jury awarded $150,000 to a woman who heard the physician take a cell phone call while she had her ovaries removed.
• A jury awarded $350,000 to a man undergoing cardiac bypass who claims he was awake as surgeons broke open his sternum to reach his heart.
• A jury awarded $500,000 to a woman who testified that she was in excruciating pain during her IOL exchange (her lawyer at one point cited anesthesia awareness even though his client was not under general anesthesia during her 90-minute surgery to replace an artificial lens that had slipped after cataract surgery).
• And Carol Weihrer of Reston, Va., founder of an advocacy group called the Anesthesia Awareness Campaign, settled her case secretly. She says six years ago she woke up at Washington Hospital Center while doctors were removing her diseased eye.

Medical malpractice lawyer Douglas Hornsby of Newport News, Va., says he has represented a dozen patients - including the woman who recounted her surgeon's cell phone call in the OR and the heart surgery patient - who sued their anesthesiologists for malpractice after waking during surgery.

"The clients I've represented have exhibited post-traumatic stress disorder (PTSD) to a chronic degree," says Mr. Hornsby. "That is, it is a trauma they relive - it bothers them to see medical shows on TV, to smell alcohol, to have friends talk about having to go to a doctor's office. They have dreams about waking up in the middle of the ocean."

In October, the Joint Commission on Accreditation of Healthcare Organizations issued an alert, calling anesthesia awareness "a frightening phenomenon" that is "under-recognized." It called on hospitals to educate their staffs and high-risk patients about the problem; to take steps to prevent it by maintaining equipment and using "appropriate available monitoring technology"; and to devise policies that deal swiftly and compassionately with affected patients, including providing access to mental health treatment.

JCAHO's action was prompted in part by three studies published earlier this year about the frequency of intraoperative awareness - estimated to affect one or two of every 1,000 patients receiving general anesthesia - and the ability of newer brain wave monitors to detect it.

Karen L. Posner, PhD, a research associate professor in the department of anesthesiology at the University of Washington in Seattle who tracks medical malpractice claims for the ASA, reports no increase in awareness claims since the group started studying malpractice claims in 1985, nor within its Closed Claims Project database, which contains claims from 1970 to 2000. She would not speculate on whether the JCAHO alert will prompt more claims, and Mr. Hornsby doubts any rush will ensue, despite the current publicity.

That's because intraoperative awareness is not traumatic for all patients who experience it, and even if it is, it's not always possible to make a case for malpractice. In fact, says Mr. Hornsby, in most cases, there is no case.

"We have to find some documentation in the medical record that helps us prove the anesthesiologist breached the standard of care," says Mr. Hornsby. "Either he did not give the right medicine at the right time or in the right quantities. Our anesthesia experts have to find something where they can say, 'That's where it is, that's where the patient had awareness.'"

Aside from incorrect drug administration, Mr. Hornsby says he has seen other errors leading to awareness including monitors that weren't turned on, an anesthesia-delivery machine that wasn't checked before a surgery - and that subsequently didn't work properly intraoperatively - and an empty isoflurane container.

So what if you have a patient whom you suspect has experienced intraoperative waking? The best course of action, says Mr. Hornsby, is to talk to the patient - find out what they recall, what they're thinking and feeling.

"You need to go to people and say, 'You're not crazy, you're not losing your mind. If a mistake was made, we'll find out what happened,'" he says. "And, if you find a mistake was made, say, 'I'm sorry.'"

In addition, JCAHO recommends that you ensure access to counseling or other support for patients who are experiencing post-traumatic stress syndrome or other mental distress as a result of anesthesia awareness.

"Acting like a stand-up person can go a long way [toward heading off a lawsuit]," says Mr. Hornsby.

- Stephanie Wasek

Medicare ASC List
CMS Proposes to Add 25 and Delete 100 CPT Codes
The federal government took a cudgel to the list of Medicare-approved ambulatory surgical center procedures, as CMS proposed last month to delete 100 CPT codes, add 25 and keep off such long sought-after codes as 47562 (laparoscopic cholecystectomy).

"The impact of the deletions outweighs the impact of the additions," says coding and billing consultant Lolita Jones, RHIA, CCS. "This is not what people were waiting all these months for. "

If your ASC is performing any of the procedures proposed for deletion, you need to consider how closely your commercial and managed care payers adhered to what's on Medicare's ASC list. "You're in trouble if you have any contracts that are tied directly to the ASC list where there's no opportunity to be paid for the code if it's not on the ASC list," says Ms. Jones.

The news isn't all bad. Notable additions include knee arthroscopy with lateral release (29873) and repair of bladder defect (57288). CPT 27425, the open version of 29873, is already on the ASC list in Payment Group 7 ($995). CPT 29873 has been assigned to Payment Group 3 ($510). "But at least it's being added," says Ms. Jones.

Ms. Jones says she was mildly surprised to see 31500 (emergency endotracheal intubation), often an ER procedure, added to Payment Group 1 ($333). ASCs that do interventional nephrology should be pleased to see these three codes proposed for addition: 36834 (repair of arterial venous aneurysm) in Payment Group 3, and 37205 and 372006 (placing stent in vessel) in Payment Group 9 ($1,339). Finally, if your facility performs pain management, the proposed addition of 62264 (epidural lysis) to Payment Group 1 is good news.

Other additions include colonoscopy w/stent (44937), proctosigmoidoscopy w/stent (45327), sigmoidoscopy w/ulstrasound (45341), sigmoidoscopy w/stent (45345), colonoscopy w/stent (45387) and release eye tissue (67343).

Now for the bad news ' and there could be plenty of it. "These deletions are really scary," says Ms. Jones. "Some are common procedures." FASA says the procedures facing deletion were performed almost 300,000 times in 2003. Some examples:

• Urology procedures facing removal include 52000 (cystoscopy), 52281 (cystoscopy with dilation), 53850 (prostatic microwave thermotx) and 55700 (biopsy of prostate). "It's surprising they would delete these in this age of prostate cancer detection," says Ms. Jones.
• Pain management's 64420 (single intercostals nerve block) is on the chopping block, but 64421 (regional intercostals nerve block) is not.
• ENT's 68810 (probing of the nasal lacrimal duct), usually a companion procedure along with some other nasal lacrimal surgery, might be deleted.

"FASA's enthusiasm for a timely updating of the ASC list dissipated quickly when we realized that more codes were being deleted than were being added, resulting in Medicare beneficiaries' having less access to ASCs," says FASA Executive Vice President Kathy Bryant.

CMS proposed to delete procedures for one of four reasons:

• the procedure is performed in a physician's office more than 50 percent of the time;
• medical specialty organizations recommended deletion because of safety concerns;
• the procedure is performed predominantly in the inpatient setting; or
• OIG recommended for deletion and CMS medical advisors concur.

- Dan O'Connor

Surgical Fire Victim Dies
Suit: Cautery Device Used During Biopsy Sparked Blaze
A woman died the day before Thanksgiving, one month after her head, neck and shoulders were engulfed during a biopsy at Methodist Hospital in Omaha, Neb., officials say.

Maxine Stryker, 86, of Omaha, had a cervical mediastinoscopy with lymph node biopsies in October, records show. She came out of the procedure with severe burns from her head to upper torso, says her lawyer, Michael Dowd, Esq. A shoulder roll caught fire, possibly sparked by a cautery device, according to a malpractice suit Mr. Dowd filed against Methodist Hospital, cardiothoracic surgeon John T. Batter, MD, and anesthesiologist Kent Hutton, MD.

The surgical fire was "an unfortunate accident," says the hospital in a statement. "While there is no evidence that it was caused by an equipment malfunction, the exact cause is under investigation." Drs. Batter and Hutton did not return calls for comment.

Mr. Dowd says Ms. Stryker initially went in for a bowel ob-struction and colonoscopy, then doctors scheduled a cervical mediastinoscopy and used a cautery unit. He says records show doctors noticed an odd smell "a wisp of smoke coming from behind [her] head."

Ms. Stryker's severe burns led to skin grafts, during recovery from which she developed pneumonia, says Mr. Dowd. An autopsy is scheduled.

- Dan O'Connor

Inside the Numbers
Sharps Injuries

• 192: Number (56 documented and 136 suspected) of occupationally acquired HIV infections in healthcare workers as of December 1999
• 18 to 35: Number of new occupational HIV infections projected to occur from percutaneous injuries each year assuming that between 1 and 2 percent of patients are HIV-positive (and therefore that 1 percent to 2 percent of needlesticks are HIV-contaminated)
• 250: Number of healthcare workers who die annually due to hepatitis B, despite the availability of vaccines
• 400,000: Estimated number of healthcare worker sharps injury exposures in the acute-care setting annually in the United States
• 30% to 40%: Percentage of sharps-injury exposures actually reported by surgeons, according to surveys
• 0.3%: Average risk of infection after a single HIV-contaminated needlestick or sharp instrument injury
• 6% to 30%: Average risk of infection after one HBV-contaminated needlestick or sharp instrument injury
• 1.8%: Average risk of infection after a single HCV-contaminated needlestick or sharp instrument injury

SOURCE: writeOutLink("www.ORprecautions.com",1)