Anesthesiology is the youngest of the medical specialties. Born of surgical parents, it was nurtured through its infancy by well-meaning and dedicated physicians. Even now this specialty is one of the most litigated fields of medicine, rivaling radiology, surgery, and plastic surgery. This, however, is at best a dubious distinction. Considering the nature of the specialty, one can easily understand the reason. In the hands of the anesthesiologist rests the life of every patient undergoing a surgical operation

Wasmuth, Carl E.

English

Cleveland-Marshall College of Law

Cleveland State UniversityEngagedScholarship@CSUCleveland State Law Review Law Journals1960Anesthesiology and the Law - In the Long ViewCarl E. WasmuthFollow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrevPart of the Health Law and Policy Commons, and the Medical Jurisprudence CommonsHow does access to this work benefit you? Let us know!This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion inCleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.Recommended CitationCarl E. Wasmuth, Anesthesiology and the Law - In the Long View, 9 Clev.-Marshall L. Rev. 234 (1960)Anesthesiology and the Law-In theLong ViewCarl E. Wasmuth, M.D., LL.B.A NESTHESIOLOGY is the youngest of the medical specialties.Born of surgical parents, it was nurtured through its in-fancy by well-meaning and dedicated physicians. Its load fromthe beginning has been overwhelming. Immediately it assumedthe responsibility for the life of the patient. This freed the sur-geon from the worries of a medical field that he did not under-stand and in which, except for the results, he was not at allinterested technically. Anesthesia was like a bastard child castout into the world to seek its own way.But the advent of the physician-anesthesiologist was metwith resistance by some surgeons. The physician-anesthesiologistwas a challenge to the supremacy of the surgeon in the operatingroom. No longer was the surgeon the "captain of the ship." Nowanother specialist exercised some of the control over the patientformerly enjoyed by the surgeon. Fortunately, the child was in-dustrious, dedicated, and studious. Today he is coming of age.Recently one court held:And even assuming that Dr. L. was "surgeon-in-charge"or "Captain-of-the-Ship," as urged, it does not follow that heis responsible for the negligence, if any, of an anesthesiol-ogist such as Dr. X, exercising his own independent specialmedical knowledge in performing his duties without anyspecific directions from Dr. L. Thompson v. Lillehei, 164Fed. Sup. 716 (1958).If he is not of age, at least we may now hold that the minor childis emancipated.But accompanying majority come legal responsibilities. Evennow this specialty is one of the most litigated fields of medicine,rivaling radiology, surgery, and plastic surgery. This, however,is at best a dubious distinction. Considering the nature of thespecialty, one can easily understand the reason. In the hands ofthe anesthesiologist rests the life of every patient undergoing asurgical operation. In former years, deaths on the operatingtable were common. All can recall friends or relatives who, whileundergoing what are now considered simple surgical operations,died on the operating table. Frequently it was stated: "PoorUncle Ben's heart just couldn't take the shock." With thesecrass words, the death was explained away. It was dismissedas probably an Act of God. Poor Doctor Jones just couldn't savehis life by operating.* Of the Department of Anesthesiology, The Cleveland Clinic Foundationand The Frank E. Bunts Educational Institute, Cleveland, Ohio; Instructorin Medicologal Preparation and Trial at the Cleveland-Marshall Law School.1Published by EngagedScholarship@CSU, 1960ANESTHESIOLOGY LAWToday such a death would not occur. Proper diagnosticstudies preoperatively, coupled with the skill of a physician-anesthesiologist, new anesthetic agents, and new technics, wouldprevent such deaths. Still more important-the death of poorUncle Ben would not be blamed on poor Uncle Ben or on hisunsuspecting and probably normal heart. The blame would beplaced on the culpable agent, technic, or person. At least aproper reason would be given or a search would be made andthe defect found. No longer would the death be excused!The childhood has been rugged but productive. No longerdo patients die of "ether pneumonia." They are assured of anadequate amount of oxygen delivered from a modern, accurategas machine, through a patented airway via an endotrachealtube. The carbon dioxide (a waste gas produced by everypatient) is absorbed by a chemical agent (soda lime). No longerdo children suffer high fevers and convulsions after etheranesthesia for tonsillectomy.Upon the accomplishments of anesthesiology are based all ofthe advances and strides of surgery. When the surgeon wantsto remove a lung or to open the heart, he does so with relativeanesthesiologic impunity. Before this bastard child was born,surgeons only dreamed of opening the chest. It never enteredtheir most progressive minds to venture into the cavity knownas heart. Today, in many hospitals, the heart-lung machine andthe anesthesiologist sustain the life processes of patients under-going open-heart surgery. No longer is it considered "difficult"to open the chest. Notice that all of these forward strides insurgery depend wholly on the man at the head of the table-the anesthesiologist. As a famous professor at Harvard MedicalSchool stated, "I care little who operates on me, but I demandthe best anesthesiologist. Upon him my life depends."Medicine has recognized the role of the anesthesiologist. TheAmerican Medical Association has established the Section onAnesthesiology. The American College of Anesthesiologists of-fers a qualifying system. The American Board of Anesthesiol-ogists certifies adequately trained anesthesiologists as diplo-mates. Now the anesthesiologist has the same rating as a special-ist as does the surgeon, the internist, or the radiologist.The anesthesiologist is accepted and his services are de-manded by the grateful patient. The public recognizes the greatadvantage of the physician-anesthesiologist. To them, he is thegreat protector during obstetric delivery or operation.Malpractice ActionsAlong with maturity and acceptance of responsibility for life,other natural hazards occur-malpractice actions. From the pre-ceding discussion, it is easy to understand why negligence suitsare instituted. Never in the history of medicine has so hazardousa specialty been practiced. Nowhere in medicine is the patientso dependent upon one man. For upon the anesthesiologist rests2https://engagedscholarship.csuohio.edu/clevstlrev/vol9/iss2/69 CLEV-MAR. L. R. (2)the responsibility of supporting the vital physiologic processesalready altered, modified, or paralyzed by anesthetic agents andsurgical manipulation. Never before has the human body suf-fered such onslaughts by the surgeon's scapel. But in spite ofthis, mortality has consistently declined, practically to the vanish-ing point. But malpractice actions do not take cognizance of thisprogress. Instead, the courts invoke res ipsa loquitur in a caseof paralysis after spinal anesthesia or of cyclopropane explosion.Instead of equitable relief, the anesthesiologist is held strictlyliable.One of the purposes and objectives of the American Societyof Anesthesiologists, through its Legal-Affairs Committee, is theeducation of anesthesiologists as to the legal pitfalls in the prac-tice of their specialty. Most of the responsibility for such a pro-gram falls upon its chairman. Frequently, when speaking on theseprograms, I am aware of the great interests of the membersas displayed in their attentiveness. The question most oftenasked of me after these talks is: "How much malpractice in-surance should I carry?" Such interrogation discloses two basicfears-one for financial security and immunity for the anesthesiol-ogist himself and for his family; the other, fear of malpracticesuits. He practices a dangerous specialty. He realizes that someone person may take one unfortunate result and through thehistrionics and silver-tongued exclamations of a plaintiff's at-torney, explode it into a heinous, negligent act performed by amalefactor.Historically, the physician has been protected by the law.The courts have taken judicial notice that the practice of medi-cine is not an exact science. In fact, there are many who sub-scribe to the theory that the practice of medicine is mostly anart. Therefore, there are many obstacles in the path of a would-be-plaintiff. Not only must he prove all of the elements of anegligence action by a preponderance of the evidence, but thisevidence must be established by an expert witness. Althoughsome courts have held the inability to secure such expert testi-mony as evidence of a "conspiracy of silence," cognizance mustbe taken of another factor. A conscientious physician, testifyingas an expert, may not in honesty be able to subscribe to the plain-tiff's contention in condemning the defendant as negligent. Whena professional expert testifier cannot be found, the plaintiff willfail to make his case. This is as it should be. Experts giveopinion evidence. If the practice of the defendant was reason-able care and skill, he must not be held negligent at law.Res Ipsa LoquiturHow do the plaintiff's attorneys circumvent this obstacle?Res ipsa loquitur! For example, a mother is paralyzed by thespinal anesthesia given for her delivery. "Now, Doctor, explainwhy this mother cannot walk, and has no control over herMay, 19603Published by EngagedScholarship@CSU, 1960ANESTHESIOLOGY LAWurinary bladder or bowel movements. You have as much timeas you want. Just explain!"The burden of going forward with the evidence now shifts.Instead of the plaintiff establishing her case at law, the defendantmust overcome an inference-a creation of the law of evidence.Is this justice? The defendant owes only reasonable skill andcare. He is not operating a bus or a train. He is not an insurer.He is practicing medicine. His duty, to reiterate, is only reason-able skill and care.Frequently, the defendant-physician cannot account for un-toward reactions. No one is more overwrought and sympatheticthan an attending physician. His therapeutic misadventures areto him defeats in his quest to cure mankind of its ills. If he hasnot been negligent, then why do the courts invoke res ipsaloquitur-an inference of negligence?One hard-shell plaintiff's attorney has said: "Malpractice isan occupational hazard!" In addition, he implied that malprac-tice insurance is cheap, and likened it to the cost of a fewpackages of cigarettes per day. Perhaps he was mathematicallycorrect in his statement, but the situation leaves a great deal tobe desired, morally and ethically.We must look to the English courts for a ray of hope:These two men have suffered such terrible consequences,that there is a natural feeling they should be compensated.But we should be doing a disservice to the community atlarge if we were to impose liability on hospitals and doctorsfor everything that happens to go wrong. Doctors would beled to think more of their own safety, than the good of thepatients. Initiative would be stifled and confidence shaken.. ..We must insist on due care for the patient at everypoint, but we must not condemn as negligence that whichis misadventure. Roe v. Health Service (1958).4https://engagedscholarship.csuohio.edu/clevstlrev/vol9/iss2/6

Anesthesiology and the Law - In the Long View

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Anesthesiology and the Law - In the Long View

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