Medical Malpractice

Depending on who is asking the question of what constitutes a standard of care, and further depending on who replies, a standard of care is a fluid thing, with the standard for some things becoming more difficult to identify than others.

The practice of anesthesia is a unique example. The basic issues regarding monitoring, procedures and various technical aspects of the delivery of anesthesia are much agreed upon when it comes to a "standard" within the community of anesthesia providers. Fiercely disputed however, is who should practice that standard and when. No where else in medicine does state law determine a standard of care more than in the practice of anesthesia. And nowhere else in medicine is state law ignored as much as possible in a fight aimed at creating separate standards of care for the same health care. The American Society of Anesthesiologists (ASA) and the American Association of Nurse Anesthetists (AANA) have very different ideas regarding who may execute the fundamentally agreed upon treatment standards. This has created a battle not over the right or wrong way anesthesia procedures should technically be done, but rather over who may do them. This in spite of a 100 year history of Nurse Anesthetists and Physician Anesthesiologists safely administering anesthesia, and even creating a model of safety that is the envy of every medical and nursing specialty.

Professional associations do not determine the standard of care. Rather, it is determined by expert witness testimony in court. Recent court rulings have defined who may testify to these standards and increasingly it must be someone specifically trained in the very profession being examined. For instance, a physician may be barred from testifying as to what a nurse should or should not do. The ASA has created a standard among its members that only a physician may administer a spinal anesthetic. However, the AANA provides that spinal anesthesia is an integral part of the practice of a nurse anesthetist. A physician anesthesiologist would not be stating the standard of care if he or she were to testify that only physicians should administer a spinal anesthetic. For one thing, the ASA's own members do not follow their "standard" and often work with nurse anesthetists whom they encourage to administer a spinal.

This example show the difficulties in using a single source, no matter how authoritative they might seem, as a final determinant of what constitutes a standard. The ASA practice guidelines are inconsistent with state nurse practice laws and actually have the effect of putting the anesthesiologist at risk for litigation. Yet lawyers, insurance companies, risk managers and "experts" often use them as a benchmark for the practice of anesthesia by nurse anesthetists, much to their own peril. Recently, a case in Maryland illustrated the pitfalls the ASA has created for their own members.

Dr. Steven Bernstein, a John's Hopkins trained anesthesiologist was recently brought before the Maryland Board of Physicians following a complaint from the physician son of a patient. The complainants' elderly mother underwent surgery after fracturing her hip. Dr. Berstein was on duty in the department of anesthesia along with two nurse anesthetists. There were two procedures being done simultaneously, the hip fracture an an appendectomy. Dr. Berstein did the appendectomy, while one of the nurse anesthetists administered the anesthesia for the hip replacement.

The complaint alleged that Dr. Berstein failed to provide the standard of care by not supervising the nurse anesthetist (who had 30 years of experience) appropriately. The Board of Physicians agreed, and issued a sweeping reprimand which detailed multiple violations which were based on the ASA Anesthesia Care Team position statement. Despite their findings creating a supervision standard contrary to the Maryland Nurse Practice Act, the Board commented that they did not rely on laws governing nurses to determine the medical standard of care. Had the case been in a courtroom in a malpractice action, the standard of care for supervision would have been defined very differently. Had the case been before the Board of Nursing, a different conclusion would also have been reached. It all depends on who asks, and who answers the question.